SECURITY AGREEMENT
Exhibit
10.97
Execution
copy
AMENDED
AND RESTATED
SECURITY
AGREEMENT
THIS
AMENDED
AND
RESTATED
SECURITY
AGREEMENT,
dated
as
of
March
[12], 2007 is executed by U-Haul
Leasing & Sales Co., a Nevada corporation, U-Haul Co.
of
Arizona, an Arizona corporation, and U-Haul International, Inc., a Nevada
corporation
(collectively,
the
“Borrowers”),
in
favor of Xxxxxxx Xxxxx Commercial
Finance Corp., (with its
successors
in
such capacity, the
“Lender”),
a
Delaware corporation.
RECITALS
A. Pursuant
to a Credit Agreement,
dated as of June 28, 2005, as amend
by
the
Amended
and
Restated Credit
Agreement,
dated as of March 12, 2007 (collectively, the “Credit
Agreement”),
between the Borrowers, U-Haul International, Inc., as Servicer/Manager and
G
uarantor
and the Lender,
the
Lender
has
agreed to
extend
certain credit facilities to the
Borrowers
upon
the
terms and subject to the
conditions
set forth therein.
B. The
Lender’s obligation to extend
the
credit
facilities
to the Borrowers under
the
Credit
Agreement
is
subject, among
other
conditions,
to
receipt by the Lender of this Security
Agreement,
duly
executed
by
the Borrowers.
C. The
parties hereto are party
to a
certain Security Agreement,
dated as of June 28,
2005
(the
“Original Security
Agreement”).
D. The
parties to the Original
Security Agreement
desire to amend
and
restate
the
Original
Security
Agreement
to
effect
certain
amendments
thereto.
AGREEMENT
NOW,
THEREFORE, in consideration of the
above
recitals and for other good and
valuable
consideration, the receipt and adequacy
of
which are hereby acknowledged, the
Borrowers
hereby
agree
with
the Lender
as
follows:
1. Definitions
and Interpretation.
(a) Definitions.
When
used
in this Security
Agreement,
the
following
terms
shall
have
the
following
respective
meanings:
“Account
Debtor”
shall
have
the meaning given
to
that term in
subparagraph
3(g)
hereof.
“Borrowers”
shall
have the meaning
given to that term in
the
introductory
paragraph
hereof.
“Collateral”
shall
have the meaning
given to
that
term in
paragraph
2 hereof.
1
“Credit
Agreement” shall have the meaning given to that
term in Recital A hereof.
“Dealer
List”
means
a
list in electronic format,
delivered by or on behalf
of
the
Borrowers to the Lender as updated
from time
to
time
in
accordance
with
Section
8.01(g) of the
Credit
Agreement.
“Equipment”
shall
have the meaning
given to that
term in
Attachment
1hereto.
“Inventory”
shall
have the meaning
given to that
term in
Attachment
1
hereto.
“Lender”
shall
have the meaning
given to that
term
in the introductory
paragraph
hereof.
“Loan
Documents”
means
the
Credit
Agreement,
the
Note, the
Guarantee
Agreement
and
this Security
Agreement.
“Obligations”
shall
mean
and
include
all
loans, advances,
debts,
liabilities
and
obligations, howsoever arising, owed by the Borrowers to MLCFC (whether
or
not
evidenced by any note or instrument
and
whether or not for the payment
of
money),
direct or indirect, absolute or contingent, due or to become
due,
now
existing
or hereafter arising pursuant to the
terms
of the
Credit Agreement
or
any
of
the
other Loan Documents,
including without limitation
all interest, fees,
charges,
expenses, attorneys’ fees and
accountants’ fees chargeable to the
Borrowers
or payable by the Borrowers
thereunder.
“Proceeds”
means
all
proceeds of, and all other
profits, products,
rentals
or
receipts,
in whatever form, arising from the
collection, sale, lease, exchange,
assignment,
licensing or other disposition of, or other realization upon, any
Collateral,
including, without limitation,
all claims
of the
Borrowers against third
parties
for loss
of,
damage
to or
destruction
of, or for proceeds
payable
under,
or
unearned
premiums
with
respect to, policies
of
insurance in respect of, any
Collateral,
and any condemnation
or
requisition
payments
with
respect to any
Collateral,
in each case whether now
existing
or
hereafter arising, provided
that,
with
respect to any Vehicle, “Proceeds” shall not include any dealer commissions,
licensing
fees, maintenance
costs and insurance
expenses owing under the
Dealership Contracts.
“Receivables”
shall
have the meaning
given to that
term in
Attachment
1
hereto.
“Secured
Obligations”
means
the
obligations secured
under this Security
Agreement,
including (a) all
principal of and interest
(including, without
limitation,
any interest which accrues
after
the
commencement
of any
case,
proceeding
or
other action relating to
the
bankruptcy,
insolvency
or
reorganization
of any Borrower, whether or not allowed or allowable
as a
claim in
2
any
such
case,
proceeding
or
other action)
on
any Loan to the Borrowers under
the
Credit
Agreement;
(b)
all other amounts
payable by the Borrowers
to MLCFC
hereunder
or
under any other Loan Document;
(c)
any renewals or extensions of
any
of the
foregoing; and (d) all other obligations of the Borrowers or their
Affiliates
under
any
Loan
Document.
“UCC”
shall
mean
the
Uniform Commercial Code
as
in effect in the State of New
York
as
of the date hereof.
“Vehicle”
shall
mean
a
motor vehicle owned any Borrower and
constituting
part of the Borrowers’
fleet of rental assets as
identified
on
the
Vehicle
Schedule delivered by the Borrowers
to the Lender under the Credit
Agreement
a
copy of which is attached hereto as Attachment
4
(as the
same
may
be
updated from time
to
time).
Unless
otherwise defined herein, all
other
capitalized terms
used herein
and defined in
the
Credit Agreement
shall
have the respective
meanings
given to those terms
in the
Credit
Agreement,
and
all terms
defined
in
the UCC shall
have the respective meanings given to
those
terms
in the
UCC.
(b) Other
Interpretive Provisions.
The
rules of construction set forth in Section 1.02
of
the
Credit Agreement shall,
to
the extent not
inconsistent
with
the
terms
of this
Security
Agreement,
apply to this Security
Agreement
and are
hereby incorporated by reference.
2. Grant
of Security Interest.
As
security
for
the
Obligations, the
Borrowers,
jointly
and severally, hereby pledge and assign to the
Lender and grant to the
Lender a security
interest
in
all right,
title
and interest
of the
Borrowers in and to
the
property whether now owned
or
hereafter acquired described in Attachment
1
hereto,
as such Attachment
may
be
amended
or
supplemented
from time
to
time
after
the date hereof by a supplemental
Vehicle Schedule
delivered
by the Borrowers
to
the Lender (collectively and severally, the “Collateral”),
which
Attachment
1
is
incorporated herein by this reference.
3. Representations
and Warranties.
The
Borrowers, jointly and severally, represent
and
warrant
to
the
Lender as
follows:
(a) Each
of
UHI and
U-Haul Sales & Leasing Co. is a corporation duly
authorized
and validly existing and in good standing
under
the laws of the State of Nevada.
U-
Haul
Co. of Arizona is a corporation duly authorized and validly existing and in
good
standing
under
the
laws of the State of Arizona. Except
as
disclosed on Attachment
5,
none of
the
Borrowers
has (x) had any other corporate name
during
the past six years, (y) changed its
identity
or corporate structure
in
any way within the past six years, or (z) used or operated under
any
other
names
(including trade names
or
other similar
names) during the past six years. The
exact
corporate
name
of each
Borrower
as it
appears
on
its certificate of
incorporation,
and
location
of its chief executive office are as follows:
(i) U-Haul
International, Inc.,
0000
X. Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000;
3
(ii) U-Haul
Co. of Arizona, 0000 X. Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000; and
(iii) U-Haul
Leasing & Sales Co., 0000 Xxxxxxxxx
Xxx, Xxxx, Xxxxxx 00000.
(b) The
Borrowers are the legal and beneficial
owner
of the
Collateral (or, in
the
case
of after-acquired
Collateral, at
the
time
the
Borrowers
acquire
rights
in
the
Collateral,
will
be
the legal and beneficial
owner
thereof).
No
other
Person
has
(or, in the case
of after-
acquired
Collateral,
at
the
time
a
Borrower acquires
rights
therein,
will have) any right, title,
claim or
interest (by way of Lien,
purchase option or otherwise) in,
against
or to
the Collateral,
other
than Permitted
Encumbrances.
(c) All
actions have been taken that are necessary under the UCC to perfect
the
Lender’s interest in the Collateral. All actions
have been taken that
are
necessary under
applicable
state
vehicle
titling and
registration
law to
perfect the
Borrowers’
interest
in
Vehicles
constituting
the Collateral.
(d) The
Borrowers have not performed any
acts
which might
prevent the
Lender
from enforcing any of the terms
of this
Security Agreement
or
which would limit
the
Lender
in
any such enforcement.
Other than financing
statements
or
other similar
or
equivalent
documents
or
instruments
with
respect
to the
Security
Interests
and
Permitted
Encumbrances,
no
financing statement, mortgage,
security
agreement
or
similar
or
equivalent document
or
instrument
covering all or any part of the Collateral is on file or of record in any
jurisdiction
in
which
such filing or recording would be effective
to
perfect
a
Lien on such
Collateral.
(e) [Reserved].
(f) All
Equipment and Inventory are (i) located
at
the
locations
indicated in
the
most
recent Dealer List delivered to the Lender, and have
been consigned to the possession
of
a third-party dealer pursuant to the Dealership
Contracts, except when such Equipment and
Invenory
have been rented to consumers in the ordinary
course of the Borrowers' business, as
such
list of locations may be updated by the Borrowers
from time to time at the request of the
Lender,
(ii) in transit to such locations or (iii) in
transit to a third party purchaser which will
become
obligated on a Receivable to a Borrower upon
receipt. Except for Equipment and
Inventory
referred to in the preceding sentence, the
Borrowers have exclusive possession and
control
of the Inventory and Equipment. All Equipment
and Inventory has been acquired by the
Borrowers
in the ordinary course of the Borrowers'
business.
(g) Each
Receivable
is
genuine and enforceable against
the
party
obligated to
pay
such
Receivable
(an
“Account
Debtor”)
free
from any
right
of rescission,
defense, setoff or
discount.
Each
Receivable was originated
in
the ordinary course
of
the Borrowers’ business.
(h) Each
insurance policy maintained
by the Borrowers
in
accordance
with
Section
8.07 of the Credit Agreement
is
validly existing
and is in full force and effect. The
Borrowers
are not in default in any material
respect under the provisions of any such insurance
policy,
and there are no facts which, with the giving
of
notice or passage of time
(or
both), would
result
in
such a default under any provision of
any
such insurance policy. Set forth in
4
Attachment
3 hereto
is
a complete
and
accurate list of the
insurance
of
the
Borrowers in
effect
on
the
date
of this Agreement
required pursuant to Section 8.07 of the Credit Agreement
showing as
of
such
date, (i) the type of insurance
carried, (ii) the name
of the
insurance
carrier,
and
(iii)
the
amount
of
each
type
of insurance carried.
(i) The
information
set
forth in
each
Dealer List
delivered
pursuant
to
Section
8.01(g)
of the
Credit
Agreement is
true,
correct and accurate.
4. Covenants.
The
Borrowers, jointly and severally,
hereby agree as follows:
(a) The
Borrowers, at the Borrowers’
expense,
shall promptly
procure,
execute
and deliver
to
the
Lender
all documents,
instruments
and
agreements
and
perform all
acts
which are necessary or desirable,
or
which the Lender may request,
to establish,
maintain,
preserve,
protect and perfect the Collateral,
the Lien
granted
to
the Lender therein and the first
priority
of such Lien or to enable the Lender to exercise and enforce its rights and
remedies
hereunder
with respect to any Collateral.
(b) The
Borrowers shall not use or permit
any
Collateral
to be
used
in
violation
of (i) any provision of the Credit Agreement,
this
Security Agreement
or
any other
Loan
Document,
(ii)
any applicable Governmental
Rule
where such use might
have
a Material
Adverse
Effect, or (iii) any policy of insurance
covering
the Collateral.
(c) The
Borrowers shall pay promptly
when
due all taxes and other
Governmental
Charges, all Liens and all other charges now or hereafter imposed
upon, relating
to
or
affecting any Collateral.
(d) Without
thirty (30) days’ prior written
notice to the Lender, no Borrower
shall
(i)
change its jurisdiction of
organization, or the office in which
such Borrower’s books and
records
relating to Receivables, (ii)
keep
Collateral consisting of documents
at
any location other
than
the
offices of UHI or U-Haul Co. of Arizona at 0000 X. Xxxxxxx Xxxxxx, Xxxxxxx,
Xxxxxxx
00000,
or
the offices of U-Haul Sales & Leasing
Co.
at 0000 Xxxxxxxxx
Xxx, Xxxx, Xxxxxx
00000,
or
(iii) keep Collateral consisting of Equipment,
Inventory or other
goods
at any location
other
than the
locations permitted
pursuant to
Section 9.02 of the Credit Agreement.
(e) [Reserved].
(f) Commencing
from the
date
hereof, the Borrowers shall make
or
cause to
be
made
all
deposits required pursuant to Section 5.03 of the Credit Agreement,
at
the times
so
required.
(g) [Reserved].
(h) The
Borrowers shall appear
in
and defend
any action or proceeding which
may
affect
its
title to or the Lender’s
interest
in
the
Collateral.
(i) The
Borrowers shall
keep
separate,
accurate
and
complete
records of the
Collateral
and
shall
provide
the
Lender
with
such records
and such other reports and information
relating
to
the
Collateral
as the
Lender
may
reasonably request from time
to
time.
5
(j) The
Borrowers shall
not
surrender
or lose
possession of (other than to the
Lender),
sell, encumber,
lease, rent,
option, or otherwise dispose of or
transfer any Collateral or
right
or
interest
therein
except
in
the ordinary course
of the
Borrowers’
business
and as permitted
in
the
Credit Agreement,
and,
notwithstanding any
provision of the Credit Agreement,
the
Borrowers
shall
keep
the Collateral
free
of all
Liens
except
Permitted
Encumbrances.
(k) The
Borrowers shall collect,
enforce and receive delivery of the
Receivables
in accordance
with past
practice
until
otherwise notified
by the
Lender.
(l) The
Borrowers shall
comply
with
all material
Requirements of Law
applicable
to the Borrowers which relate to the production,
possession, operation, maintenance
and
control of the Collateral.
(m) The
Borrowers shall (i) maintain
and
keep
in force public liability
insurance
of the types and in amounts
customarily
carried from time
to
time
during
the term of
the
Credit Agreement
in
its lines of business, such insurance to be carried with
companies
and in
amounts
satisfactory to the Lender, (ii) deliver to the Lender from time
to
time,
as the
Lender
may
request, schedules setting forth
all
insurance then
in
effect,
and
(iii)
deliver
to
the
Lender
copies
of
each policy of insurance which replaces,
or
evidences
the
renewal
of,
each existing
policy
of
insurance at least fifteen (15) days prior
to
the expiration
of such
policy. If
required
pursuant
to Section 8.07 of the Credit Agreement,
the
Lender shall be named as additional
insured
on all liability insurance of the Borrowers
with
respect
to any
Collateral,
and
such
policies
shall contain such additional endorsements
as
shall be required by the Lender, including
the
endorsements
specified in Attachment
3
hereto.
Prior to the occurrence
and the continuance
of
an
Event of Default, all proceeds
of any
property insurance (whether maintained
by
any
Borrower
or a third party) paid as a result of any event or occurrence
shall
be
paid
to the
Borrowers.
All
proceeds of any property insurance (whether maintained
by any Borrower or a
third
party)
paid
after
the
occurrence
and
during the continuance of an
Event
of Default shall be
paid
to
the Lender
to
be
held as
Collateral
and
applied
as
provided
in
the Credit Agreement
or,
at
the
election of the Lender, returned
to
the Borrowers.
5. Authorized
Action by Lender.
The
Borrowers hereby irrevocably appoint the
Lender
as
its attorney-in-fact
and agree that the
Lender
may
perform (but
the
Lender shall not be
obligated
to and
shall incur
no
liability
to
the Borrowers or any third party for failure so to do)
any
act
which the Borrowers are obligated by this
Security Agreement
to
perform,
and to
exercise
such rights and powers as Borrowers might
exercise with respect to the Collateral,
including,
without limitation,
the
right
to (a)
collect
by
legal proceedings
or
otherwise and
endorse,
receive and receipt for all dividends, interest,
payments,
proceeds
and
other sums
and
property
now
or
hereafter payable
on
or
on account
of
the Collateral;
(b)
enter into any
extension,
reorganization, deposit, merger,
consolidation
or other agreement
pertaining to, or
deposit,
surrender, accept, hold or apply other property in
exchange
for
the
Collateral;
(c)
insure,
process,
preserve
and enforce
the
Collateral;
(d)
make
any
compromise
or
settlement,
and
take
any
action it deems
advisable, with respect to the
Collateral; (e) pay any Indebtedness of any
Borrower
relating
to
the
Collateral;
(f)
execute UCC
financing statements
and
other documents,
instruments
and
agreements
required hereunder; (g)
note
any Borrower’s lien
on
certificates of
title
relating
to
the Collateral; provided,
however,
that
the Lender
may
exercise such powers
only
after
the
occurrence and during the continuance
of an Event of Default.
The
Borrowers agree to
6
reimburse
the
Lender upon demand
for
all
reasonable
costs
and
expenses,
including attorneys’
fees,
that
the Lender may
incur
while acting as the
Borrowers’ attorney-in-fact
hereunder, all of
which
costs
and expenses are included in the Obligations. The
Borrowers agree
that such
care
as
the Lenders gives to the safekeeping
of
its own property of like kind shall constitute reasonable
care
of the
Collateral
when
in
the Lender’s
possession; provided,
however,
that
Lender shall not
be
required
to make
any
presentment,
demand
or protest,
or give any notice and need not take any
action
to
preserve any rights against
any prior party or any other
Person in connection with
the
Obligations
or
with respect
to
the Collateral.
6. Default
and Remedies.
The
Borrowers shall be deemed
in
default under this
Security
Agreement
upon
the occurrence and during the
continuance of an Event of Default, as
that
term is
defined
in
the
Credit
Agreement.
In addition
to all other rights and remedies
granted
to
the
Lender
by this
Security
Agreement,
the
Credit Agreement,
the other
Loan
Documents,
the
UCC
and
other
applicable Governmental Rules, the Lender may,
upon
the
occurrence and during
the
continuance of any Event of Default, exercise
any
one or more of the following rights and
remedies:
(a) collect, receive, appropriate
or realize upon the Collateral
or
otherwise foreclose
or
enforce
the
Lender’s security
interests
in any
or all
Collateral
in
any manner
permitted
by
applicable
Governmental
Rules or in this Security
Agreement;
(b)
notify
any
or all Account
Debtors
to make
payments
on
Receivables directly to
the
Lender;
(c)
direct
any
Depositary
Bank
or
Intermediary
to
liquidate
the
account(s)
maintained
by it, pay all amounts
payable
in
connection
therewith to the Lender and/or deliver any
proceeds thereof to the Lender; (d) sell or
otherwise
dispose of any or all Collateral
at one or more
public or private sales, whether or not
such
Collateral is present
at
the place
of
sale, for cash or credit or future delivery, on such
terms
and
in
such manner
as
the Lender may
determine;
(e)
require the Borrowers to assemble
the
Collateral
and make
it
available
to the
Lender at a place to be
designated by
the
Lender;
(f)
enter
onto
any
property where any Collateral is located
and
take possession thereof
with
or without
judicial
process; and (g) prior to the
disposition of the Collateral, store, process, repair or
recondition
any Collateral consisting of goods, or otherwise
prepare and preserve Collateral for
disposition
in any manner
and to
the extent the Lender
deems
appropriate. In furtherance of the
Lender’s
rights hereunder, the Borrowers hereby grant to the Lender
an
irrevocable, non-
exclusive
license (exercisable
without
royalty or other payment
by
the Lender) to use, license or
sublicense
any patent, trademark,
tradename,
copyright or
other
intellectual
property in which
any
Borrower now or hereafter has any
right, title or interest, together
with the right of access
to
all
media
in
which any of the foregoing may
be
recorded or stored. In any case where notice of
any
sale
or disposition of any
Collateral is required,
the Borrowers hereby
agree
that seven (7)
days
notice of such sale or disposition
is reasonable.
7. Miscellaneous.
(a) Notices.
Except
in the case of notices and other communications
expressly
permitted
to
be given by telephone, all notices
and other communications provided
for
herein
shall be in writing and shall be delivered by hand or overnight
courier service, mailed
by
certified
or registered mail
or sent
by
telecopy, as follows:
(i) if
to any
Borrower, to it at 0000 Xxxxxxxxx Xxx,
Xxxx,
XX 00000-
3239,
Attention: Xxxxx Xxxxxxx (Facsimile
No.
(000) 000-0000), with a copy to 0000 X. Xxxxxxx
Xxxxxx,
Xxxxxxx, XX 00000, Attention: Xxxxxxxx Xxxxxxx
(Facsimile
No.
(000) 000-0000); and
7
(ii) if to
the
Lender,
to
it at
0 Xxxxx
Xxxxxxxxx Xxxxxx,
00xx
Xxxxx, Xxx
Xxxx,
XX
00000, Attention: Xxxxxxx
Xxxxx (Facsimile
No.
(000) 000-0000).
Any
party
hereto may
change
its address or telecopy number
for
notices and other
communications
hereunder by notice to the other
parties
hereto. All notices and other
communications
given to any party hereto
in
accordance with the provisions of this Agreement
shall
be
deemed
to
have been given on the date of receipt.
(b) Waivers;
Amendments.
No
failure or delay by the Lender in exercising any
right
or
power hereunder or under
any
other Loan Document
shall
operate as a waiver
thereof,
nor shall any single or partial
exercise of any such right or power, or any abandonment
or
discontinuance of steps to enforce such a right
or
power, preclude any other or further exercise
thereof
or the
exercise of any
other
right or power. The rights and remedies
of
the Lender
hereunder
and under the other Loan Documents
are
cumulative
and are not exclusive of any
rights
or
remedies
that they would otherwise have.
No
waiver of any provision of any Loan
Document
or
consent to any departure
by any Loan Party therefrom shall
in
any event be
effective
unless the same shall
be
permitted
by
paragraph (b) of this Section, and then such
waiver
or
consent
shall
be
effective
only
in
the
specific
instance
and
for the
purpose
for which
given.
Without
limiting
the
generality of the foregoing,
the making
of
a Loan shall not be
construed
as a waiver of any Default,
regardless of whether the Lender may
have
had notice or
knowledge
of such Default
at
the time.
Neither
this Agreement
nor
any other Loan Document
nor
any provision hereof or
thereof
may
be
waived, amended
or
modified except, in
the
case
of this
Agreement,
pursuant to
an
agreement
or
agreements
in
writing
entered into
by
the Borrowers and the Lender or, in the
case
of
any other Loan Document,
pursuant to an agreement
or
agreements
in
writing
entered
into
by
the Loan Party or Loan Parties that
are
parties
thereto
with
the consent
of the
Lender.
(c) Successors
and Assigns.
The
provisions of this Agreement
shall
be
binding
upon and inure to the benefit of the parties
hereto
and their respective
successors
and
assigns
permitted
hereby,
except
that
a
Borrower may
not
assign
or
otherwise
transfer
any
of its
rights
or
obligations hereunder without the prior written consent of the Lender
(and any
attempted
assignment
or
transfer by a Borrower without such consent shall be null and void).
Nothing
in this Agreement,
expressed or implied,
shall be construed to confer upon any Person
(other
than the parties hereto, their
respective successors
and
assigns permitted
hereby
and, to
the
extent
expressly contemplated hereby,
the
Related Parties of the Lender) any legal or equitable
right,
remedy
or
claim under
or
by reason of this Agreement.
(i) The
Lender may,
without the consent of the Borrowers, assign all
or
a
portion of its rights and obligations
under this Agreement;
(ii) The
Lender may
at any
time
pledge
or assign a security
interest
in
all
or
any portion of its rights under this Agreement
to
secure obligations of the Lender,
including
any pledge or assignment
to
secure obligations to a Federal Reserve Bank, and this
Section
shall not apply to any such pledge or
assignment
of a
security interest; provided that
no
such
pledge or assignment
of a
security interest shall release the Lender from any
of
its
obligations
hereunder or substitute any
such
pledgee or assignee for the Lender as a party hereto.
8
(d) Severability.
Any
provision of this Agreement
held to
be invalid,
illegal
or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of
such
invalidity,
illegality or
unenforceability
without
affecting the
validity, legality
and
enforceability
of the remaining provisions
hereof; and
the
invalidity
of a
particular
provision
in
a
particular
jurisdiction shall not
invalidate such provision
in any
other jurisdiction.
(e) Survival.
All
covenants, agreements,
representations and warranties made
by
the
Loan Parties in the
Loan
Documents
and
in the
certificates
or
other instruments delivered
in
connection with or pursuant to this Agreement
or
any other Loan Document
shall
be
considered
to have been relied upon by the other parties hereto and shall
survive the execution
and
delivery of the Loan Documents
and
the making
of
any Loans, regardless of any
investigation
made
by
any such other party or on its
behalf and notwithstanding that the Lender
may
have
had
notice
or knowledge of any Default or incorrect representation or warranty at the
time
any
credit is extended hereunder,
and
shall continue in full force and effect as long as the
principal
of or any accrued interest on any Loan or any fee or any other amount payable
under this
Agreement
is
outstanding and unpaid and so long
as
the Commitments
have
not expired or
terminated.
(f) Borrowers’ Continuing Liability.
Notwithstanding
any provision of this
Security
Agreement
or
any other Loan Document or
any
exercise by the Lender of any of its
rights
hereunder or thereunder (including,
without limitation,
any right
to
collect or enforce any
Collateral),
(i)
the
Borrowers
and
their
Subsidiaries
shall
remain
liable to perform their
obligations
and duties in connection
with
the Collateral and (ii) the Lender shall not assume
any
liability
to
perform such
obligations
and
duties or
to
enforce any of the Borrowers’ rights in
connection
with the Collateral.
(g) Governing Law.
THIS
AGREEMENT
SHALL
BE CONSTRUED
IN
ACCORDANCE
WITH
AND
GOVERNED
BY THE
LAW OF THE STATE
OF
NEW
YORK.
(i) Each
Borrower hereby irrevocably
and
unconditionally submits,
for
itself and its property, to the nonexclusive jurisdiction of the
Supreme
Court
of the State of
District
of New York, and any appellate court from
any
thereof, in any action or proceeding
arising
out of or relating to any Loan Document,
or
for recognition
or enforcement
of
any
judgment,
and
each of the parties hereto hereby irrevocably
and unconditionally
agrees
that
all
claims
in
respect of any such action or proceeding may
be
heard and determined
in
such New
York
State or,
to
the
extent
permitted
by
law, in such
Federal
court.
Each of the
parties hereto
agrees
that a final judgment in any such
action
or proceeding
shall
be conclusive and may
be
enforced in other jurisdictions by
suit
on the judgment
or in
any other manner
provided by law.
Nothing
in this Agreement
or
any other Loan Document
shall
affect any
right
that the Lender
may
otherwise have to bring any action or proceeding relating to this
Agreement
or
any other
Loan
Document
against any Borrower or its properties in the courts of any
jurisdiction.
(ii) Each
Borrower hereby irrevocably and
unconditionally waives,
to
the
fullest
extent
it
may
legally and effectively
do
so, any objection which it may
now
or
hereafter
have to the laying
of
venue
of
any suit, action or
proceeding
arising
out
of or relating
to
this
Agreement
or
any other Loan Document
in any
court
referred to in subparagraph (g)(i) of
9
this
Section.
Each
of the
parties hereto
hereby irrevocably
waives,
to
the fullest
extent
permitted
by
law, the defense
of an inconvenient forum to
the
maintenance
of such action or proceeding in
any
such
court.
(iii) Each
Borrower
hereby irrevocably
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 such Borrower at its
address
set forth in Section 7(a) or at such other
address of which the Lender
shall have been
notified
pursuant
thereto.
Nothing
in this Agreement
or
any other
Loan
Document
will
affect
the
right
of any
party
to this Agreement
to
serve
process
in
any other
manner
permitted
by law.
(h) WAIVER
OF
JURY
TRIAL.
EACH
PARTY
HERETO
HEREBY
WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT
IT
MAY
HAVE TO
A TRIAL
BY
JURY IN
ANY LEGAL PROCEEDING
DIRECTLY
OR
INDIRECTLY
ARISING OUT OF OR RELATING
TO
THIS
AGREEMENT,
ANY
OTHER
LOAN
DOCUMENT OR THE TRANSACTIONS
CONTEMPLATED
HEREBY
(WHETHER
BASED
ON
CONTRACT,
TORT
OR ANY OTHER THEORY). THE BORROWER
CERTIFIES THAT
NO
REPRESENTATIVE,
AGENT OR ATTORNEY
OF ANY OTHER
PARTY
HAS
REPRESENTED,
EXPRESSLY
OR
OTHERWISE,
THAT
SUCH
OTHER
PARTY
WOULD
NOT,
IN THE
EVENT
OF LITIGATION,
SEEK TO ENFORCE THE
FOREGOING WAIVER.
(i) Headings.
Section
and subsection headings used herein are for
convenience
of reference only, are not part of this Agreement
and
shall not affect the
construction
of, or be taken into consideration
in interpreting, this Agreement.
(j) Joint
and Several Liability
of Borrowers.
Each
Borrower acknowledges
and
agrees that, whether or not specifically indicated as such in a Loan
Document,
all
Obligations
shall be
joint
and
several Obligations of
each
individual Borrower,
and
in
furtherance
of such joint and several Obligations, each
Borrower
hereby irrevocably and
unconditionally
guarantees the payment
of
all Obligations
of each other Borrower. Each
Borrower
hereby acknowledges
and agrees
that such
Borrower
shall
be
jointly
and severally
liable
to
the Lender for all representations, warranties, covenants
and, obligations and
indemnities
of the
Borrowers hereunder.
[Signature
Page
Follows]
10
ATTACHMENT
1
To
Security Agreement
COLLATERAL
DESCRIPTION
All
right,
title
and interest
of the
Borrowers,
whether now owned or hereafter acquired, in
and
to
the following:
(a) All
equipment
as
defined in
the
UCC listed on the accompanying
Vehicle
Schedule,
as the same
may be
updated from time
to
time
pursuant to the Credit Agreement,
including,
without limitation,
all Vehicles,
together
with
all additions
and accessions
thereto and
replacements
therefor (collectively,
the “Equipment”);
(b) All
inventory
as
defined in the UCC listed on the accompanying
Vehicle
Schedule,
as the same
may be
updated from time
to
time
pursuant to the Credit Agreement,
including,
without limitation,
all Vehicles,
together
with
all additions
and accessions
thereto,
replacements
therefor, products thereof and documents
therefor (collectively,
the “Inventory”);
(c) All
amounts
receivable with respect to sales of Vehicles to third parties (the
“Receivables”);
and
All
Proceeds
of the
foregoing (including,
without
limitation,
whatever is receivable or
received
when
Collateral or proceeds is sold, collected,
exchanged, returned, substituted or otherwise
disposed
of,
whether such disposition is voluntary
or
involuntary, including rights to payment
and
return
premiums
and
insurance proceeds under
insurance
with respect
to
any Collateral,
and
all
rights to
payment
with
respect
to any
cause of action
affecting
or
relating to the Collateral).
[1]-1
ATTACHMENT
2
To
Security Agreement
[Reserved]
[2]-1
ATTACHMENT
3
To
Security Agreement
INSURANCE
AND
INSURANCE
ENDORSEMENTS
If
required pursuant
to Section 8.07 of the Credit
Agreement,
each
of the liability
insurance
policies
of the Borrowers shall contain substantially
the following endorsements:
(a) Xxxxxxx
Xxxxx Commercial
Finance
Corp. (the “Lender”)
shall
be named
as
additional insured.
(b) In
respect
of the
interests of the
Lender in the policies, the insurance
shall
not
be
invalidated by any action or by inaction of any Borrower or by any Person having
temporary
possession of the property covered thereby (the “Property”)
while
under contract
with
any
Borrower to perform maintenance,
repair,
alteration or similar
work
on
the Property,
and
shall
insure
the
interests of the Lender regardless
of
any breach
or
violation of any
warranty,
declaration or condition contained in the insurance policy by any Borrower
or
the
Lender
or
any
other
additional
insured
(other
than by
such
additional
insured,
as to
such
additional
insured) or by any Person having temporary
possession
of the
Property while under
contract
with any Borrower to perform
maintenance,
repair, alteration or similar
work
on the
Property.
(c) If
the
insurance policy is cancelled
for any reason whatsoever, or substantial
change
is
made
in
the coverage that affects the interests of the
Lender, or if the insurance
coverage
is allowed to lapse for non-payment
of premium,
such
cancellation, change or lapse
shall
not
be effective as to the Lender for 30 days
(or
10 days in the case of non-payment
of
premium)
after
receipt by
the
Lender of written notice
from the
insurer of such cancellation,
change
or
lapse.
(d) The
Lender shall not have any obligation
or
liability
for
premiums,
commissions,
assessments,
or
calls in
connection with the insurance.
(e) The
insurer shall waive any rights of set-off or counterclaim or
any
other
deduction,
whether by attachment
or
otherwise,
that
it may
have
against the Lender.
(f) The
insurance shall be primary
without
right of contribution from any
other
insurance
that may
be
carried by the Lender with respect
to
its interests
in
the Property.
(g) The
insurer
shall
waive
any
right
of
subrogation against the Lender.
(h) All
provisions of the insurance, except the
limits
of liability,
shall
operate
in
the
same
manner
as
if there
were
a separate
policy covering each insured party.
[3]-
1
ATTACHMENT
4
To
Security Agreement
VEHICLE
SCHEDULE
[Intentionally
omitted.
Electronic
file delivered to Lender
at
Closing.]
[4]-1
ATTACHMENT
5
To
Security Agreement
SCHEDULE
OF PRIOR NAMES,
TRADE NAMES, PRIOR
CORPORATE
STRUCTURES,
ETC.
|
COMPANY
|
FORMER
NAMES
(1998 -
Present)
|
CHANGES TO
CORPORATE
STRUCTURE
(1998 - Present)
|
FICTITIOUS
NAMES
(1998 - Present)
|
|
U-Haul International, Inc.
|
None
|
None
|
None
|
|
U-Haul
Leasing & Sales Co.
|
None
|
None
|
None
|
|
U-Haul
Co. of Arizona
|
None
|
None
|
U-Haul Co.
of
Southern
Arizona
U-Haul Co.
of
Western
Arizona
U-Haul Co.
of
Eastern Arizona
|
[5]-1
