EXECUTION COPY
AMERCO
$80,000,000 9.0% CLASS B SECOND LIEN SENIOR SECURED NOTES DUE 2009
PURCHASE AGREEMENT
March 1, 2004
To the initial purchasers named in Schedule A
attached hereto ("PURCHASERS")
Ladies and Gentlemen:
Amerco, a Nevada corporation ("ISSUER") and each of the
Guarantors that are signatory hereto ("INITIAL GUARANTORS"), hereby agree with
you as follows:
SECTION 1. ISSUANCE OF NOTES.
1.1. Issuer proposes to issue and sell to Purchasers
$80,000,000 aggregate principal amount of the Issuer's 9.0% Class B Second Lien
Senior Secured Notes due 2009 (the "NOTES"). The Notes will be issued pursuant
to an indenture (as amended, restated, supplemented and otherwise modified from
time to time, the "INDENTURE", substantially in the form attached hereto as
Exhibit A), to be dated as of the date hereof, by and among Issuer, the
Guarantors, and Xxxxx Fargo Bank, N.A., as indenture trustee (the "TRUSTEE") and
as collateral trustee (the "COLLATERAL TRUSTEE"). The Guarantors will jointly
and severally guarantee the obligations under the Notes and the Indenture
(collectively, the "GUARANTY"). The obligations under the Notes will be secured
by mortgages on, security interests in or pledges of (the "SECURITY INTERESTS")
certain assets (the "COLLATERAL") of Issuer and the Guarantors (collectively,
"GRANTORS") pursuant to the Security Documents. The Security Interests will
secure the payment and performance when due of all of the obligations of
Grantors under the Indenture and the other Note Documents. The Trustee shall
enter into the Intercreditor Agreement, dated as of the date hereof (the
"INTERCREDITOR AGREEMENT"), substantially in the form attached hereto as Exhibit
B, with Xxxxx Fargo Foothill, Inc., as administrative agent (the "BANK AGENT")
under that certain Loan and Security Agreement, dated as of the date hereof,
among the borrowers party thereto, the lenders party thereto, and Xxxxx Fargo
Foothill, Inc., as lead arranger, administrative agent and collateral agent, and
as may be further amended, supplemented, restated or otherwise modified from
time to time in accordance with the Intercreditor Agreement (the "SENIOR CREDIT
AGREEMENT").
1.2. The issuance of the Notes on the terms set forth
herein shall be defined as the "OFFERING".
1.3. The Notes will be offered and sold to Purchasers
pursuant to an exemption from the registration requirements under the Securities
Act of 1933, as amended (the "ACT").
1.4. Upon original issuance thereof, and until such time
as the same is no longer required under the applicable requirements of the Act,
the Notes shall bear the legends required under the Indenture.
1.5. For the purposes of this Purchase Agreement, dated as
of the date set forth above, among Issuer, Initial Guarantors and Purchasers (as
amended, restated, supplemented and otherwise
AMERCO NOTE PURCHASE AGREEMENT
modified from time to time, this "AGREEMENT") capitalized terms are used as
defined in Annex I attached hereto.
SECTION 2. AGREEMENTS TO SELL AND PURCHASE. On the basis of
the representations, warranties and agreements contained herein and in the
Indenture, and subject to the terms and conditions hereof and of the Indenture,
Issuer shall issue and sell to Purchasers (and, in order to induce Purchasers to
purchase the Notes, the Grantors shall grant the Security Interests) and
Purchasers agree to purchase from Issuer, $80,000,000 aggregate principal amount
of the Notes for a purchase price equal to $80,000,000 less original issue
discount of 2%, which equals $78,400,000 (the "PURCHASE PRICE").
SECTION 3. TERMS OF OFFERING. The transactions contemplated by
the Note Documents, including without limitation the Offering and the use of the
proceeds therefrom are collectively referred to herein as the "TRANSACTIONS."
Unless the context requires otherwise, all agreements, representations and
warranties of Issuer set forth in this Agreement are made after giving pro forma
effect to the Plan of Reorganization.
SECTION 4. DELIVERY AND PAYMENT. Delivery to Purchasers of and
payment for the Notes shall be made at a Closing (the "CLOSING") to be held at
such time and on such date as agreed to by the parties (the "CLOSING DATE") at
the location agreed to by the parties. The Closing Date and the location of
delivery of and the form of payment for the Notes may be varied by agreement
between Purchasers and Issuer.
Issuer shall deliver to Purchasers one or more certificates
representing the Notes, each in definitive form, registered in such names and
denominations as Purchasers may request, against payment by Purchasers of the
aggregate Purchase Price therefor by immediately available federal funds bank
wire transfer to such bank account as Issuer shall designate to Purchasers at
least two business days prior to the Closing. The portion of Purchase Price
payable by each Purchaser is set forth on Schedule A attached hereto.
The certificates representing the Notes in definitive form
shall be made available to Purchasers for inspection at the offices of Sidley
Xxxxxx Xxxxx & Xxxx LLP, 000 Xxxx 0xx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx,
Xxxxxxxxxx 00000 (or such other place as shall be reasonably acceptable to
Purchasers) not later than 10:00 a.m. one business day immediately preceding the
Closing Date.
SECTION 5. AGREEMENTS OF GRANTORS. Each Grantor hereby agrees:
5.1. To (i) advise Purchasers promptly after obtaining
actual knowledge (and, if requested by Purchasers, confirm such advice in
writing) of (A) the issuance by any state securities commission of any stop
order suspending the qualification or exemption from qualification of any of the
Notes for offer or sale in any jurisdiction, or the initiation of any proceeding
for such purpose by any state securities commission or other regulatory
authority, or (B) the happening of any event not otherwise disclosed pursuant to
one or more disclosure schedules to the Note Documents that makes any statement
of a material fact made in the SEC Documents or Bankruptcy Documents untrue or
that requires the making of any additions to or changes thereto in order to make
the statements therein, in the light of the circumstances under which they were
made, not misleading, (ii) use its commercially reasonable efforts to prevent
the issuance of any stop order or order suspending the qualification or
exemption from qualification of any of the Notes under any state securities or
blue sky laws, and (iii) if at any time any state securities commission or other
regulatory authority shall issue an order suspending the qualification or
exemption from qualification of any of the Notes under any such laws, use its
commercially reasonable efforts to obtain the withdrawal or lifting of such
order at the earliest possible time.
AMERCO NOTE PURCHASE AGREEMENT
5.2. To cooperate with Purchasers and Purchasers' counsel
in connection with the qualification of the Notes under the securities or blue
sky laws of such jurisdictions as Purchasers may request and continue such
qualification in effect so long as reasonably required for Exempt Resales;
provided, that Issuer shall not be required in connection therewith to file any
general consent to service of process or to qualify as a foreign corporation in
any jurisdiction where it is not now so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject.
5.3. Whether or not any of the Transactions are
consummated or this Agreement is terminated, to pay (i) all costs, expenses,
fees and taxes incident to and in connection with (A) the preparation, printing,
processing, distribution and delivery (including, without limitation, word
processing and duplication costs) of each of the Note Documents, other than the
fees of Purchaser's counsel, and all other agreements, memoranda, correspondence
and other documents prepared and delivered in connection herewith, (B) the
issuance and delivery of the Notes, including the fees of the Trustee, (C) to
the extent required for Exempt Resales, the qualification of the Notes for offer
and sale under the securities or blue sky laws of the several states, and (D)
the preparation of the Notes, (ii) all fees and expenses of the counsel and
accountants of Issuer, (iii) all fees and expenses (including fees and expenses
of counsel) of Issuer in connection with approval of the Notes by DTC for
"book-entry" transfer, (iv) all fees charged by rating agencies in connection
with the rating of the Notes, (v) all fees and expenses (including reasonable
fees and expenses of counsel) of the Trustee and Collateral Trustee and (vi) the
Commitment Fee, Work Fee and Break-Up Fees as required, and defined, in the Term
Sheets.
5.4. To the extent it may lawfully do so, not to insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension, usury or other law, wherever enacted, now or at any
time hereafter in force, that would prohibit or forgive the payment of all or
any portion of the principal of or interest on the Notes, or that may affect the
covenants or the performance of the Indenture (and, to the extent it may
lawfully do so, Issuer hereby expressly waives all benefit or advantage of any
such law, and covenants that it shall not, by resort to any such law, hinder,
delay or impede the execution of any power granted to the Trustee in the
Indenture or the Collateral Trustee in the Security Documents but shall suffer
and permit the execution of every such power as though no such law had been
enacted).
5.5. To deliver to the Bank Agent copies of Uniform
Commercial Code, tax and judgment lien searches confirming the absence of, and
mortgage releases, termination statements and other release documents from
JPMorgan and any other Person necessary to release any Liens on the Collateral,
other than the Permitted Liens, in accordance with the terms of the Senior
Credit Agreement.
5.6. Not to, and to ensure that no affiliate (as defined
in Rule 501(b) of the Act) of Issuer will, sell, offer for sale or solicit
offers to buy or otherwise negotiate in respect of any "security" (as defined in
the Act) that would be integrated with the sale of the Notes in a manner that
would require the registration under the Act of the sale to Purchasers of the
Notes.
5.7. For so long as any of the Notes remain outstanding,
during any period in which Issuer is not subject to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"), to make
available, upon request, to any owner of the Notes in connection with any sale
thereof, and any prospective purchaser of such Notes from such owner, the
information required by Rule 144A(d)(4) under the Act.
5.8. To: (i) execute and cause the Definitive Notes to be
authenticated by the Trustee, (ii) deliver the same to the Trustee to be held in
trust in accordance with the terms of that certain Escrow
AMERCO NOTE PURCHASE AGREEMENT
Letter, dated as of the date hereof, in substantially the form set forth in
Exhibit C hereto, and (iii) to deliver evidence of the foregoing satisfactory to
the Purchasers. Each such Definitive Note shall represent an aggregate principal
amount for each Purchaser equal to the "Principal Amount of Notes Purchased" set
forth next to each such Purchaser's name on Schedule A hereto.
5.9. [INTENTIONALLY OMITTED]
5.10. Not to, and not to authorize or permit any person
acting on their behalf to, (i) distribute any offering material in connection
with the offer and sale of the Notes, or (ii) solicit any offer to buy or offer
to sell the Notes by means of any form of general solicitation or general
advertising (including, without limitation, as such terms are used in Regulation
D under the Act) or in any manner involving a public offering within the meaning
of Section 4(2) of the Act.
5.11. The Purchasers shall have a separate right to inspect
the property and books and records of the Grantors at reasonable times (but
prior to any Event of Default as defined in the Indenture no more frequently
than quarterly), and to have discussions with the Grantors' outside accountants,
provided that, when appropriate, in conducting the activities associated with
the exercise of such rights, the Purchasers shall rely on information and
analysis prepared for or by the Bank Agent, subject to its consent.
5.12. The Issuer shall offer to exchange the Notes pursuant
to a registered exchange offer filed with the Commission within 60 days of the
Closing Date and to be declared effective within 90 days thereafter (the
"EXCHANGE OFFER"), as more fully described in the Registration Rights Agreement.
The Registration Rights Agreement and the Notes shall provide that failure to
offer and complete the Exchange Offer shall result in a 0.25% increase of the
annual interest rate for the first quarter or portion thereof during the failure
and 0.5% for each quarter or portion thereof thereafter up to a maximum increase
of 2.0%. per annum.
5.13. Within 60 days of the Closing Date the Issuer shall
cause the Class B Notes to be rated by Standard & Poor's, a division of The
XxXxxx-Xxxx Companies, Inc., or another nationally recognized statistical rating
organization (as such term is defined for purposes of Rule 436(g)(2) under the
Act).
5.14. During the two year period after the Closing Date (or
such shorter period as may be provided for in Rule 144(k) under the Act, as the
same may be in effect from time to time), to not, and to not permit any current
or future subsidiaries of Issuer or any other affiliates (as defined in Rule
144A under the Act) controlled by Issuer to, resell any of the Notes which
constitute "restricted securities" under Rule 144 that have been reacquired by
Issuer, any current or future subsidiaries of Issuer or any other affiliates (as
defined in Rule 144A under the Act) controlled by Issuer, except pursuant to an
effective registration statement under the Act.
5.15. To treat as original issue discount within the
meaning of Code Section 1273(a)(1), 2% of the aggregate principal amount of the
Notes Issued on the Closing Date.
5.16. To use the net proceeds received by Issuer from the
sale of the Notes to (i) fund Issuer's reorganization as contemplated in the
Plan of Reorganization, (ii) pay costs, fees and expenses incurred in connection
with the Transactions, (iii) provide for ongoing working capital needs in the
ordinary course of business of Grantors, and (iv) for other lawful general
corporate purposes not prohibited under the Note Documents.
AMERCO NOTE PURCHASE AGREEMENT
5.17. During the period of two years after the Closing
Date, Issuer will not be or become an open-end investment company, unit
investment trust or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act.
5.18. Unless a fixed time period is provided in this
Section 5, Grantors' obligations under this Section 5 shall terminate on the
date upon which no Purchaser or any of its respective affiliates continues to
hold Notes acquired on the Closing Date.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF GRANTORS. In
order to induce the Purchasers to enter into this Agreement, each Grantor makes
the following representations and warranties to the Purchasers, which
representations and warranties shall be true, correct, and complete, in all
material respects, as of the Closing Date, and such representations and
warranties shall survive the execution and delivery of this Agreement:
6.1. No injunction or order has been issued that either
(i) asserts that any of the Transactions is subject to the registration
requirements of the Act, or (ii) would prevent or suspend the issuance or sale
of any of the Notes, in any jurisdiction. As of the Closing Date and except as
otherwise disclosed on one or more disclosure schedules to the Note Documents or
the Bankruptcy Documents, the SEC Documents: (x) will not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the circumstances under which
they were made, not misleading; and (y) will contain all the information
specified in, and meet the requirements of, Rule 144A(d)(4) under the Act.
Except as disclosed in the SEC Documents, there are no related party
transactions that would be required to be disclosed in a registration statement
on Form S-1 filed under the Act.
6.2. Each Grantor (i) has been duly organized, is validly
existing and is in good standing under the laws of its jurisdiction of
organization, (ii) has all requisite power and authority to carry on its
business and to own, lease and operate its properties and assets described in
the SEC Documents and the Bankruptcy Documents, and (iii) is duly qualified or
licensed to do business and is in good standing as a foreign corporation, as the
case may be, authorized to do business in each jurisdiction in which the nature
of such businesses or the ownership or leasing of such properties requires such
qualification, except where the failure to be so qualified could not, singly or
in the aggregate, reasonably be expected to have a material adverse effect on
(A) the properties, business, prospects, operations, earnings, assets,
liabilities or condition (financial or otherwise) of the Issuer and its
Subsidiaries taken as a whole, (B) the ability of any Grantor to perform its
obligations in all material respects under any of the Note Documents, (C) the
enforceability of any of the Security Documents or the attachment, perfection or
priority of any of the Security Interests intended to be created thereby in any
portion of the Collateral or (D) the validity of any of the Note Documents or
the consummation of any of the Transactions (each, a "MATERIAL ADVERSE EFFECT").
6.3. Set forth on Schedule 6.3 are the only direct and
indirect Subsidiaries of each Grantor. All of the shares of outstanding capital
Stock of each Pledged Company are owned, directly or indirectly, by the
applicable Grantor free and clear of all liens, security interests, mortgages,
pledges, charges, claims or restrictions on transferability or encumbrance of
any kind other than those created by the Note Documents and the Senior Credit
Agreement and the other Loan Documents (as defined in the Senior Credit
Agreement). Except as disclosed in Schedule 6.3, immediately following the
Closing, no Grantor will directly or indirectly own any capital Stock or other
equity interest in any person. Except as set forth on Schedule 6.3, there are no
subscriptions, options, warrants, or calls relating to any shares of any
Grantor's, or any of their respective Subsidiaries' capital Stock, including any
right of conversion or exchange under any outstanding security or other
instrument. No Grantor nor any of their respective
AMERCO NOTE PURCHASE AGREEMENT
Subsidiaries is subject to any obligation (contingent or otherwise) to
repurchase or otherwise acquire or retire any shares of any Grantor's
Subsidiaries' capital Stock or any security convertible into or exchangeable for
any such capital Stock.
6.4. Immediately following the Closing, no Grantor will
have any liabilities, absolute, accrued, contingent or otherwise other than (A)
liabilities that are reflected in the Financial Statements and the Bankruptcy
Documents, or (B) liabilities incurred subsequent to the date thereof in the
ordinary course of business, consistent with past practice, that could not,
singly or in the aggregate, reasonably be expected to have a Material Adverse
Effect. Set forth on Schedule 6.4(a) is a true and complete list of all
Indebtedness of Grantors outstanding immediately prior to the Closing Date that
is to remain outstanding after the Closing Date and such Schedule accurately
reflects the aggregate principal amount of such Indebtedness. Set forth on
Schedule 6.4(b) is a true and complete summary of all TRAC Lease Transactions in
existence as of the Closing Date that are to remain outstanding after the
Closing Date.
6.5. There are no contracts, agreements or understandings
between any Grantor and any person granting such person the right to require
such Grantor to file a registration statement under the Act with respect to any
securities of any Grantor or to require such Grantor to include such securities
with the Notes and Guaranty registered pursuant to any registration statement,
other than in favor of the Purchasers.
6.6. Each Grantor has all requisite power and authority to
enter into, deliver and perform its obligations under the Note Documents to
which it is a party and to consummate the Transactions contemplated thereby.
Each of the Note Documents to which it is a party has been duly authorized by
each Grantor, and this Agreement is, and, when executed and delivered, each
other Note Document to which such Grantor is a party will be, a legal, valid and
binding obligation of such Grantor, enforceable in accordance with its terms,
except that the enforcement thereof may be subject to (i) bankruptcy,
insolvency, reorganization, receivership, moratorium, fraudulent conveyance or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (whether applied by a court of
law or equity) and the discretion of the court before which any proceeding
therefor may be brought. On the Closing Date, the Indenture will conform in all
material respects to the requirements of the Trust Indenture Act of 1939, as
amended (the "TIA"), applicable to an indenture that is required to be qualified
under the TIA, and the Indenture will be so qualified.
6.7. The Notes have been duly authorized by Issuer for
issuance and sale to Purchasers pursuant to this Agreement and, when executed
and authenticated in accordance with the terms of the Indenture and delivered to
and paid for by Purchasers in accordance with the terms hereof, will be legal,
valid and binding obligations of Issuer, enforceable against Issuer in
accordance with their terms, except that the enforcement thereof may be subject
to (i) bankruptcy, insolvency, reorganization, receivership, moratorium,
fraudulent conveyance or other similar laws now or hereafter in effect relating
to creditors' rights generally and (ii) general principles of equity (whether
applied by a court of law or equity) and the discretion of the court before
which any proceeding therefor may be brought.
6.8. No Grantor is in violation of its respective
certificate or articles of incorporation, certificate of formation, bylaws,
operating agreement, partnership agreement, or other similar constituent
instrument (the "CHARTER DOCUMENTS"). No Grantor is (i) in violation of any
Federal, state, local or foreign statute, law (including, without limitation,
common law) or ordinance, or any judgment, decree, rule, regulation or order
(collectively, "APPLICABLE LAW") of any government, governmental or regulatory
agency or body, court, arbitrator or self-regulatory organization, domestic or
foreign (each, a "GOVERNMENTAL AUTHORITY"), or (ii) in breach of or default
under any bond, debenture, note or other evidence of indebtedness, indenture,
mortgage, deed of trust, lease or any other agreement or instrument
AMERCO NOTE PURCHASE AGREEMENT
to which it is a party or by which any of them or their respective property is
bound (collectively, "APPLICABLE AGREEMENTS"), other than in the case of clauses
(i) or (ii) as disclosed in the SEC Documents and the Bankruptcy Documents or
violations, breaches or defaults that could not, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect. There exists no
condition that, with the passage of time or otherwise, would (i) constitute a
violation of such Charter Documents or Applicable Laws, (ii) constitute a breach
of or default under any Applicable Agreement, or (iii) result in the imposition
of any penalty or the acceleration of any indebtedness other than, with respect
to this clause (iii) only, breaches, penalties or defaults that could not,
singly or in the aggregate, reasonably be expected to have a Material Adverse
Effect. All Applicable Agreements are in full force and effect and are legal,
valid and binding obligations, and no default has occurred or is continuing
thereunder, other than such defaults that could not, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect.
6.9. Neither the execution, delivery or performance of the
Note Documents nor the consummation of the Transactions shall conflict with,
violate, constitute a breach of or a default (with the passage of time or
otherwise) under, require the consent of any person (other than consents already
obtained) under, result in the imposition of a Lien on any assets of any Grantor
(except pursuant to the Note Documents), or result in an acceleration of
indebtedness under or pursuant to (i) the Charter Documents, (ii) any Applicable
Agreement, other than, with respect to this clause (ii) only, such breaches,
violations or defaults as disclosed in the SEC Documents or Bankruptcy Documents
or that could not, singly or in the aggregate, reasonably be expected to have a
Material Adverse Effect, or (iii) any Applicable Law. After giving effect to the
Transactions, no Default or Event of Default (each as defined in the Indenture)
will exist.
6.10. No permit, certificate, authorization, approval,
consent, license or order of, or filing, registration, declaration or
qualification with, any Governmental Authority (collectively, "PERMITS") and no
approval or consent of any other person, is required in connection with, or as a
condition to, the execution, delivery or performance of any of the Note
Documents or the consummation of any of the Transactions, other than such
Permits (i) as have been made or obtained on or prior to the Closing Date, (ii)
as are not required to be made or obtained on or prior to the Closing Date that
will be made or obtained when required, or (iii) the failure of which to make or
obtain could not, singly or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
6.11. Except as disclosed in the SEC Documents or the
Bankruptcy Documents, there is no action, claim, suit, demand, hearing, notice
of violation or deficiency, or proceeding (including, without limitation, an
investigation or partial proceeding, such as a deposition), domestic or foreign
(collectively, "PROCEEDINGS"), pending or to the actual knowledge of any Grantor
after reasonable inquiry, overtly threatened, that either (i) seeks to restrain,
enjoin, prevent the consummation of, or otherwise challenge any of the Note
Documents or any of the Transactions, or (ii) could, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect. No Grantor is subject
to any judgment, order, decree, rule or regulation of any Governmental Authority
that could, singly or in the aggregate, reasonably be expected to have a
Material Adverse Effect.
6.12. Immediately following the Closing, each Grantor and
each of its respective directors, members, managers, officers, employees and
agents (collectively, the "REGULATED PERSONS") shall have, and will be in
compliance with the terms and conditions of, all Permits (including, without
limitation, Permits with respect to engaging in aviation activities or
operations) necessary or advisable to own, lease and operate the properties and
to conduct the businesses described in the SEC Documents and Bankruptcy
Documents other than those the failure of which to have could not, singly or in
the aggregate,
AMERCO NOTE PURCHASE AGREEMENT
reasonably be expected to have a Material Adverse Effect. Immediately following
the Closing, all such Permits will be valid and in full force and effect. To the
actual knowledge of each Grantor, after reasonable inquiry, no event has
occurred which allows, or after notice or lapse of time would allow, the
imposition of any material penalty, revocation or termination by the issuer
thereof or which results, or after notice or lapse of time would result, in any
material impairment of the rights of the holder of any such Permits. No Grantor
has actual knowledge, after reasonable inquiry, that any Grantor is considering
limiting, conditioning, suspending, modifying, revoking or not renewing any such
Permit.
6.13. On and as of the date hereof, each Grantor has good
title to its owned properties and other tangible assets, free and clear of all
Liens except Permitted Liens (as defined in the Indenture). The tangible
properties of each Grantor are in good repair (reasonable wear and tear
excepted), appropriately insured and suitable for their uses except where the
failure to be in such good repair or appropriately insured and suitable for
their uses would, individually or in the aggregate, not be reasonably likely to
have a Material Adverse Effect. The real properties held under lease by each
Grantor are and will be held by them under valid, subsisting and enforceable
leases which are and will be in full force and effect except where the failure
to be valid, subsisting, enforceable and in full force and effect would not,
individually or in the aggregate, be reasonably likely to have a Material
Adverse Effect, and no defaults by any Grantor are existing under any such lease
which could result in the termination of one or more of such leases by such
lessor without regard to notice or passage of time, which termination(s),
individually or in the aggregate, would be reasonably likely to have a Material
Adverse Effect.
6.14. Upon delivery to the Bank Agent of the stock
certificates evidencing all of the stock of each Subsidiary (the "PLEDGED
STOCK"), the security interests granted pursuant to the Security Documents with
respect to such Pledged Stock for the benefit of the Purchasers will constitute
a valid, perfected security interest on such Pledged Stock second only to the
security interest granted in such Pledged Stock under the Senior Credit
Agreement and the other Loan Documents (as defined in the Senior Credit
Agreement), enforceable as such against all creditors of the respective pledgor
and any Persons purporting to purchase any Pledged Stock from the respective
pledgor, except (x) as enforceability may be subject to (i) bankruptcy,
insolvency, reorganization, receivership, moratorium, fraudulent conveyance or
other similar laws now or hereafter in effect relating to creditors' rights
generally and (ii) general principles of equity (whether applied by a court of
law or equity) and the discretion of the court before which any proceeding
therefor may be brought and (y) the priority thereof is subject to Liens granted
in favor of the Bank Agent as set forth in the Intercreditor Agreement.
6.15. On and as of the Closing Date and upon filing by the
Collateral Trustee of (i) financing statements, (ii) any filings required with
the United States Patent and Trademark Office and (iii) any filings required
with the United States Copyright Office, the security interests granted pursuant
to the Security Documents will constitute valid, perfected security interests on
the Collateral described therein (as may be perfected by the filing of financing
statements) for the benefit of the holders of the Notes, enforceable as such
against all creditors of any Grantor and any Persons purporting to purchase any
such Collateral from any Grantor (except purchasers of inventory in the ordinary
course of business) except (x) as enforceability may be subject to (i)
bankruptcy, insolvency, reorganization, receivership, moratorium, fraudulent
conveyance or other similar laws now or hereafter in effect relating to
creditors' rights generally and (ii) general principles of equity (whether
applied by a court of law or equity) and the discretion of the court before
which any proceeding therefor may be brought and (y) the priority thereof is
subject to Liens granted in favor of the Bank Agent under the Senior Credit
Agreement and the other Loan Documents (as defined in the Senior Credit
Agreement).
AMERCO NOTE PURCHASE AGREEMENT
6.16. Immediately following the Closing, each Grantor shall
have appropriate insurance covering its properties, operations, personnel and
businesses against such losses and risks substantially in accordance with
customary industry practice.
6.17. All material Tax returns required to be filed by each
Grantor have been filed and all such returns are true, complete, and correct in
all material respects. All Taxes that are due or claimed from each Domestic
Entity have been paid other than those (i) currently payable without penalty or
interest or (ii) being contested in good faith and by appropriate proceedings
and for which adequate reserves have been established in accordance with GAAP.
To the actual knowledge of each Grantor, after reasonable inquiry, there are no
proposed Tax assessments against any Grantor that could singly or in the
aggregate have a Material Adverse Effect. The accruals and reserves on the books
and records of each Grantor in respect of any material Tax liability for any
Taxable period not finally determined are adequate to meet any assessments of
Tax for any such period. For purposes of this Agreement, the term "TAX" and
"TAXES" shall mean all federal, state, local and foreign taxes, and other
assessments of a similar nature (whether imposed directly or through
withholding), including any interest, additions to tax, or penalties applicable
thereto.
6.18. Each Grantor owns, or is licensed under, and has the
right to use, all patents, patent rights, licenses, inventions, copyrights,
know-how (including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures), trademarks,
service marks and trade names (collectively, "INTELLECTUAL PROPERTY") necessary
for the conduct of, its businesses, free and clear of all Liens, other than
Permitted Liens and other than where the failure to own or license such property
could not, singly or, together with such Permitted Liens, in the aggregate,
reasonably be expected to have a Material Adverse Effect. To the actual
knowledge of each Grantor, after reasonable inquiry, (i) no claims have been
asserted by any person challenging the use of any such Intellectual Property by
any Grantor or questioning the validity or effectiveness of any license or
agreement related thereto, (ii) there is no valid basis for any such claim
(other than any claims that could not, singly or in the aggregate, reasonably be
expected to have a Material Adverse Effect), and (iii) the use of such
Intellectual Property by the Grantors will not infringe on the Intellectual
Property rights of any other person. It is the ordinary business practice of
each Grantor to file with the United States Patent and Trademark Office for
registration or recordation, as applicable (x) a completed application for
registration of each trademark and patent owned by it which is material to the
business of such Grantor and (ii) an appropriate assignment to such Grantor of
the interest acquired by it in any trademark and patent which is material to the
business of such Grantor or Grantors taken as a whole. It is the ordinary
business practice of each Grantor to file with the United States Copyright
Office for registration a completed application for registration of each
registrable copyright owned by it which is material to the business of such
Grantor.
6.19. Each Grantor maintains a system of internal
accounting controls sufficient to provide reasonable assurance that (i) material
transactions are executed in accordance with management's general or specific
authorization, (ii) material transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles of the United States, consistently applied ("GAAP"), and
to maintain asset accountability, (iii) access to assets is permitted only in
accordance with management's general or specific authorization, and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
material differences. Except as disclosed in the SEC Documents, other than (x)
the filing of the Chapter 11 Case, (y) the withdrawal by PriceWaterhouseCoopers
of its audit letter with respect to Issuer's financial statements for the fiscal
year ended as of March 31, 2002 and (z)
AMERCO NOTE PURCHASE AGREEMENT
such other matters as have been set forth in writing by Issuer to Purchasers
there has not been a Material Adverse Change with respect to Issuer (or any
Grantor, as applicable) since March 31, 2003.
6.20. The financial statements included in the SEC
Documents and the Bankruptcy Documents (the "FINANCIAL STATEMENTS") present
fairly the financial position of the Issuer and its consolidated subsidiaries as
of the dates shown and their results of operations and cash flows for the
periods show, and, except as otherwise disclosed in the SEC Documents or the
Bankruptcy Documents, such financial statements have been prepared in conformity
with GAAP applied on a consistent basis.
6.21. Subsequent to the respective dates as of which
information is given in the most recent Issuer 10-Q, except as adequately
disclosed in such Issuer 10-Q, (i) no Grantor has incurred any liabilities,
direct or contingent, that are material, singly or in the aggregate, to any
Grantor, or has entered into any material transactions not in the ordinary
course of business, (ii) there has not been any decrease in the capital Stock or
membership interests, as the case may be, or any increase in long-term
indebtedness or any material increase in short-term indebtedness of any Grantor,
or any payment of or declaration to pay any dividends, other than the regular
quarterly dividend payment on the Issuer's Series A 8.5% Cumulative Preferred
Stock that was paid on March 1, 2004 or any other distribution with respect to
any Grantor, and (iii) there has not been any material adverse change in the
properties, business, prospects, operations, earnings, assets, liabilities or
condition (financial or otherwise) of any Grantor. To the actual knowledge of
each Grantor after reasonable inquiry, there is no event that is reasonably
likely to occur, which if it were to occur, could, singly or in the aggregate,
reasonably be expected to have a Material Adverse Effect, except such events
that have been adequately disclosed in the SEC Documents, the Bankruptcy
Documents or in one or more disclosure schedules to the Note Documents.
6.22. All indebtedness represented by the Notes is being
incurred for proper purposes and in good faith. On the Closing Date (after
giving effect to the Transactions), each Grantor will be solvent, and will have
on the Closing Date (after giving effect to the Transactions) sufficient capital
for carrying on its business and will be on the Closing Date (after giving
effect to the Transactions) able to pay its debts as they mature. No transfer of
property is being made by any Grantor and no obligation is being incurred by any
Grantor in connection with the transactions contemplated by this Agreement or
the other Note Documents with the intent to hinder, delay, or defraud either
present or future creditors of any Grantor.
6.23. None of Grantors and, to their actual knowledge after
reasonable inquiry, no one acting on their behalf has (i) taken, directly or
indirectly, any action designed to cause or to result in, or that has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of any security of Issuer to
facilitate the sale or resale of any of the Notes, (ii) sold, bid for,
purchased, or paid anyone any compensation for soliciting purchases of, any of
the Notes, or (iii) paid or agreed to pay to any person any compensation for
soliciting another to purchase any other securities of Issuer.
6.24. No Grantor nor any of their respective "Affiliates"
is a "party in interest" or a "disqualified person" with respect to any employee
benefit plans. To the actual knowledge of each Grantor, after reasonable
inquiry, no condition exists or event or transaction has occurred in connection
with any employee benefit plan that could result in any Grantor or any of their
respective "Affiliates" incurring any liability, fine or penalty that could,
singly or in the aggregate, have a Material Adverse Effect. No Grantor or any
trade or business under common control with any Grantor (for purposes of Section
414(c) of the Code) maintain any employee pension benefit plan that is subject
to Title IV of the Employee Retirement Income Act of 1974, as amended, or the
rules and regulations promulgated thereunder ("ERISA"). The terms "employee
benefit plan," "employee pension benefit plan," and "party
AMERCO NOTE PURCHASE AGREEMENT
in interest" shall have the meanings assigned to such terms in Section 3 of
ERISA. The term "Affiliate" shall have the meaning assigned to such term in
Section 407(d)(7) of ERISA, and the term "disqualified person" shall have the
meaning assigned to such term in Section 4975 of the Internal Revenue Code of
1986, as amended, or the rules, regulations and published interpretations
promulgated thereunder (the "CODE").
6.25. Except for the $75,000 fee to be paid by the Issuer
to Xxxxx Fargo Foothill, Inc., no Grantor has dealt with any broker, finder,
commission agent or other person (other than Purchasers) in connection with the
Transactions, and no Grantor is under any obligation to pay any broker's fee or
commission in connection with such Transactions.
6.26. No labor dispute with the employees of any Grantor
exists or, to the knowledge of any Grantor, is imminent that might have a
Material Adverse Effect.
6.27. Except as would not have a Material Adverse Effect or
as disclosed in the SEC Documents or the Bankruptcy Documents, (i) no Grantor is
in violation of any federal, state or local laws and regulations (collectively,
"ENVIRONMENTAL LAWS") relating to pollution or protection of human health or the
environment or the use, treatment, storage, disposal, transport or handling,
emission, discharge, release or threatened release of toxic or hazardous
substances, materials or wastes, or petroleum and petroleum products ("MATERIALS
OF ENVIRONMENTAL CONCERN"), including, without limitation, noncompliance with or
lack of any permits or other environmental authorizations; (ii) there are no
past, present or reasonably foreseeable circumstances that would be reasonably
expected to lead to any such violation in the future; (iii) no Grantor has
received any communication from any person or entity alleging any such
violation; (iv) there is no pending or, to the actual knowledge of any Grantor
after reasonable inquiry, threatened claim, action, investigation or notice by
any person or entity against any Grantor or against any person or entity for
whose acts or omissions any Grantor is or may reasonably be expected to be
liable, either contractually or by operation of law, alleging liability for
investigatory, cleanup, or other response costs, natural resources or property
damages, personal injuries, attorney's fees or penalties relating to any
Materials of Environmental Concern or any violation or potential violation of
any Environmental Law (collectively, "ENVIRONMENTAL CLAIMS"), and (v) to the
actual knowledge of each Grantor after reasonable inquiry, there are no actions,
activities, circumstances, conditions, events or incidents that could form the
basis of any such Environmental Claim.
6.28. As of the applicable date thereof, each SEC Document
and Bankruptcy Document did not contain any untrue statement of a material fact
or omit to state a material fact necessary to make the statements made, in the
light of the circumstances under which they were made, not misleading. As of the
Closing Date, no SEC Document, Bankruptcy Document, Note Document or any other
statement, representation or warranty made by any Grantor or, to the actual
knowledge of any Grantor after reasonable inquiry, any other person (other than
Purchasers) in any of the Note Documents or in any certificate or document
delivered with respect thereto, shall contain any untrue statement of a material
fact or omit to state a material fact necessary to make the statements made, in
light of the circumstances under which they were made, not misleading. Each
certificate signed by any officer of any Grantor and delivered to Purchasers or
counsel for Purchasers in connection with the Transactions shall be deemed to be
a representation and warranty by such Grantor to Purchasers as to the matters
covered thereby.
6.29. Issuer is subject to the reporting requirements of
Section 13 or Section 15(d) of the Exchange Act, and files reports with the
Commission on the Electronic Data Gathering, Analysis, and Retrieval (XXXXX)
system.
AMERCO NOTE PURCHASE AGREEMENT
6.30. The Notes are eligible for resale under Rule 144A of
the Act.
6.31. Each Grantor operates all real and personal property
leased by it under valid and enforceable leases and has performed in all
material respects the obligations required to be performed by it with respect to
each such lease except for such leases and obligations which, in the aggregate,
would not have a Material Adverse Effect. As to leases with respect to which any
Grantor is the lessor, the lessees and other parties under such leases are in
compliance with all material terms and conditions thereunder and such leases are
in full force and effect except for such leases which, if not in full force and
effect, would not, in the aggregate, have a Material Adverse Affect.
6.32. There are no legal or governmental proceedings
involving or, to any Grantor's knowledge, affecting any Grantor or any of their
respective properties or assets which would be required to be described in a
filing with the Commission that are not described in the SEC Documents, nor are
there any material contracts or other documents which would be required to be
described in a filing with the Commission that are not described in the SEC
Documents.
6.33. Except as described in the SEC Documents or the
Bankruptcy Documents, there are no consensual encumbrances or restrictions on
the ability of any Subsidiary of any Grantor (x) to pay dividends on such
Subsidiary's capital Stock or to pay any indebtedness to any Grantor or any
other Subsidiary of any Grantor, (y) to make loans or advances to, or
investments in, any Grantor or any Subsidiary of any Grantor or (z) to transfer
any of its property or assets to any Grantor or any Subsidiary of any Grantor.
6.34. No securities of the same class (within the meaning
of Rule 144A(d)(3) under the Act) as the Notes are listed on any national
securities exchange registered under Section 6 of the Exchange Act or quoted in
a U.S. automated inter-dealer quotation system.
6.35. Neither Issuer nor any of its affiliates (as defined
in Rule 501(b) under the Act) has, within the six-month period prior to the date
hereof, directly or through any agent, sold, offered for sale, solicited offers
to buy or otherwise negotiated in respect of, any security (as defined in the
Act) by or for Issuer that is of the same or similar class as the Notes in a
manner that would require registration of the Notes under the Act.
6.36. Neither Issuer nor any affiliate of Issuer nor any
person acting on their behalf has (i) engaged, in connection with the offering
of the Notes, in any form of general solicitation or general advertising (as
those terms are used within the meaning of Regulation D under the Act); or (ii)
solicited offers for, or offered or sold, such Notes by means of any form of
general solicitation or general advertising (as those terms are used in
Regulation D under the Act) or in any manner involving a public offering within
the meaning of Section 4(2) of the Act, except as disclosed in the Bankruptcy
Documents for the Class A Second Lien Senior Secured Notes, in a manner which
does not disqualify the offer of the Notes under Regulation D.
6.37. No registration under the Act of the Notes or the
Guaranty is required for the sale of the Notes and the Guaranty to Purchasers as
contemplated hereby or for Exempt Resales assuming the accuracy of the
Purchasers' representations set forth in Section 7 hereof.
6.38. No Grantor nor any agent thereof acting on behalf of
such Grantor has taken, or will take, any action that might cause this Agreement
or the issuance or sale of Notes to violate Regulation T, Regulation U, or
Regulation X of the Board of Governors of the Federal Reserve System.
AMERCO NOTE PURCHASE AGREEMENT
6.39. Each Grantor is not, and does not own or control and,
after giving effect to the Offering and sale of the Notes and the application of
the proceeds thereof as described in Section 5, will not be, an open-end
investment company, unit investment trust or face-amount certificate company
that is or is required to be registered under Section 8 of the Investment
Company Act of 1940, nor is any Grantor, nor does any Grantor own or control, a
closed-end investment company required to be registered, but is not registered,
thereunder.
6.40. BDO Xxxxxxx, LLP are independent public accountants
with respect to Issuer as required by the Act and the rules and regulations of
the Commission thereunder.
6.41. Borrowers (as defined in the Senior Credit Agreement)
and U-Haul Co. (Canada) Ltd. U-Haul Co. (Canada) Ltee are the only parties that
own any parcel of Real Property Collateral or any Vehicle included in the
Collateral.
6.42. All of the Equipment is used or held for use in
Grantors' businesses and is fit for such purposes.
6.43. The Equipment of Grantors is stored only at the
locations permitted by Section 4.09 of the Indenture.
6.44. Each Grantor keeps correct and accurate records
itemizing and describing the type, quality, and quantity of its Equipment and
the book value thereof.
6.45. The chief executive office of each Grantor is located
at the address indicated in Schedule 5.7 of the Senior Credit Agreement as
delivered to Purchasers and each Grantor's FEIN and Organizational ID Number or,
in the case of the Canadian Subsidiaries, the numbers assigned by Canada Customs
and Revenue Agency (Canada) are identified in Schedule 5.7 of the Senior Credit
Agreement as delivered to Purchasers. As of the Closing Date, each Grantor's
exact legal name is as set forth on the signature pages to this Agreement, and
in the 5 years prior to the Closing Date no Grantor has been known by any other
name, or had a business at any address other than those specified on Schedule
5.7 of the Senior Credit Agreement.
6.46. Other than those matters disclosed on Schedule 5.10
of the Senior Credit Agreement as delivered to Purchasers, there are no actions,
suits, arbitrations, administrative hearings or other proceedings pending or, to
the knowledge of any Grantor, threatened against any Grantor or any of their
Subsidiaries (excluding the Insurance Subsidiaries), as applicable, except for
(a) matters that are fully covered by insurance (subject to customary
deductibles), (b) routine litigation arising in the ordinary course of business
that is not material and (c) matters arising after the Closing Date that, if
decided adversely to any Grantor, or any of their Subsidiaries, as applicable,
reasonably could not be expected to result in a Material Adverse Change.
6.47. Each Grantor owns, or holds licenses in, all
trademarks, trade names, copyrights, patents, patent rights, and licenses that
are necessary to the conduct of its business as currently conducted. Schedule
5.16 of the Senior Credit Agreement as delivered to Purchasers is a true,
correct, and complete listing of all material patents, patent applications,
trademarks, trademark applications, copyrights, and copyright registrations as
to which each Grantor is the owner or is an exclusive licensee.
6.48. Set forth on Schedule 5.18 of the Senior Credit
Agreement as delivered to Purchasers are all Grantors' DDAs, including, with
respect to each depository (i) the name and address of such depository, and (ii)
the account numbers of the accounts maintained with such depository.
AMERCO NOTE PURCHASE AGREEMENT
6.49. All factual information (taken as a whole) furnished
by or on behalf of Grantors in writing to Collateral Trustee or any Purchaser
(including all information contained in the Schedules hereto or in the other
Note Documents) for purposes of or in connection with this Agreement, the other
Note Documents, or any transaction contemplated herein or therein is, and all
other such factual information (taken as a whole) hereafter furnished by or on
behalf of Grantors in writing to the Collateral Trustee or any Purchaser will
be, true and accurate, in all material respects, on the date as of which such
information is dated or certified and not incomplete by omitting to state any
fact necessary to make such information (taken as a whole) not misleading in any
material respect at such time in light of the circumstances under which such
information was provided. On the Closing Date, the Projections (as defined in
the Senior Credit Agreement) represent, and as of the date on which any other
Projections are delivered to Collateral Trustee, such additional Projections
represent Issuer's good faith best estimate of its future performance for the
periods covered thereby.
6.50. The Confirmation Order has been validly entered and
has not been stayed, reversed, vacated or otherwise modified except with the
consent of Collateral Trustee and the Required Holders.
6.51. The Reservation Management System is owned by A&M
Associates, Inc., a Nevada corporation, free and clear of claims and
encumbrances.
6.52. There are no pending investigations, claims or
litigation by any Governmental Authority or other Person with respect to the
transactions contemplated by this Agreement and the other Note Documents.
6.53. Within 150 days after the Closing Date, the Company
shall, or shall cause the other Note Parties to:
(a) register, or cause to be registered, with the State
of Arizona each Vehicle (excluding any trailer) owned by any Grantor (other than
U-Haul Co. of Alaska or U-Haul of Hawaii, Inc.) and obtain a new Certificate of
Title for each such Vehicle registered pursuant to clause (1) naming (A) (x)
U-Haul (Canada) as the registered owner of such Vehicles operated primarily in
Canada, or (y) U-Haul Co. of Arizona, an Arizona corporation, as the registered
owner of all other such Vehicles, (B) on new Certificates of Title obtained
prior to May 21, 2003, "FOOTHILL CAPITAL CORP.", as the first priority
lienholder thereon and "XXXXX FARGO BANK, TRUSTEE", as second priority
lienholder only to the Bank Agent and (C) on new Certificates of Title obtained
on or after May 21, 2003, "WELLSFARGO FOOTHILL, INC., AS AGENT" or, if space
does or did not permit, "WELLSFARGO FOOTHILL AGENT", as the first priority
lienholder thereon and "XXXXX FARGO BANK, TRUSTEE", as the second priority
lienholder only to the Bank Agent;
(b) (1) register, or cause to be registered, with the
State of Alaska each Vehicle (excluding any trailer) owned by U-Haul Co. of
Alaska, and (2) obtain a new Certificate of Title for each such Vehicle
registered pursuant to clause (1) naming (A) U-Haul Co. of Alaska, an Alaskan
corporation, as the registered owner and (B) "WELLSFARGO FOOTHILL, INC., AS
AGENT" or, if space does or did not permit, "WELLSFARGO FOOTHILL AGENT", as the
first priority lienholder thereon and "XXXXX FARGO BANK, TRUSTEE", as the second
priority lienholder only to the Bank Agent;
(c) (1) register, or cause to be registered, with the
State of Hawaii each Vehicle (excluding any trailer) owned by U-Haul of Hawaii,
Inc. and (2) obtain a new Certificate of Title for each such Vehicle registered
pursuant to clause (1) naming (A) U-Haul of Hawaii, Inc., a Hawaiian
corporation, as the registered owner and (B) "WELLSFARGO FOOTHILL, INC., AS
AGENT" or, if
AMERCO NOTE PURCHASE AGREEMENT
space does or did not permit, "WELLSFARGO FOOTHILL AGENT", as the first priority
lienholder thereon and "XXXXX FARGO BANK, TRUSTEE", as the second priority
lienholder only to the Bank Agent.
6.54. Grantors have complied with the following
Anti-Terrorism Laws:
(a) No Grantor nor any Affiliate of any Grantor is in
violation of any Anti-Terrorism Law or knowingly engages in or conspires to
engage in any transaction that evades or avoids, or has the purpose of evading
or avoiding, or attempts to violate, any of the prohibitions set forth in any
Anti-Terrorism Law.
(b) None of Issuer nor any Affiliate of Issuer is any of
the following (each a "Blocked Person"):
(i) a Person that is listed in the annex to, or is
otherwise subject to the provisions of, Executive Order No. 13224;
(ii) a Person owned or controlled by, or acting for or on
behalf of, any Person that is listed in the annex to, or is otherwise
subject to the provisions of, Executive Order No. 13224;
(iii) a Person or entity with which any bank or other
financial institution is prohibited from dealing or otherwise engaging
in any transaction by any Anti-Terrorism Law;
(iv) a Person or entity that commits, threatens or
conspires to commit or supports "terrorism" as defined in Executive
Order No. 13224;
(v) a Person or entity that is named as a "specially
designated national" on the most current list published by OFAC at its
official website or any replacement website or other replacement
official publication of such list; or
(vi) a Person or entity who is affiliated with a Person or
entity listed above.
(c) Neither Issuer nor any Affiliate of Issuer (i)
conducts any business or engages in making or receiving any contribution of
funds, goods or services to or for the benefit of any Blocked Person or (ii)
deals in, or otherwise engages in any transaction relating to, any property or
interests in property blocked pursuant to Executive Order No. 13224.
(d) None of Issuer nor any Affiliate of Issuer is in
violation of any rules or regulations promulgated by OFAC or of any economic or
trade sanctions or engages in administered and enforced by OFAC or conspires to
engage in any transaction that evades or avoids, or has the purpose of evading
or avoiding, or attempts to violate, any of the prohibitions set forth in any
rules or regulations promulgated by OFAC.
6.55. Set forth on Schedule 6.55 is a complete and accurate
list of each Grantor's Affiliates showing the relation (whether through direct
ownership, common ownership or otherwise) between each Grantor and such
Affiliates.
6.56. The Dormant Subsidiaries (i) are inactive and do not
engage in any business activities, (ii) do not have assets with an aggregate
fair market value in excess of $100,000, and (iii) do not have any annual
operating expenditures or other liabilities.
AMERCO NOTE PURCHASE AGREEMENT
6.57. INW is the subject of an Insolvency Proceeding as of
the Closing Date.
6.58. No Grantor is a party to or subject to any agreement
that prohibits or restricts the ability of any Grantor to enter into and perform
under this Agreement, the Registration Rights Agreement, the Indenture or the
other Note Documents, including, without limitation, making all payments when
due and payable and exercising the right to prepay the Notes or the other
Obligations under this Agreement and the other Note Documents, except for (i)
the restrictions set forth in the Intercreditor Agreement and (ii) restrictions
in the Synthetic Leases as of the Closing Date and fully disclosed on Schedule
6.58 hereto.
SECTION 7. REPRESENTATIONS AND WARRANTIES OF PURCHASERS. Each
Purchaser severally represents and warrants that:
7.1. It is an "accredited investor" within the meaning of
Regulation D under the Act.
7.2. The Notes to be acquired by it pursuant to this
Agreement are being acquired for its own account and with no intention of
distributing or reselling such securities or any part thereof in any transaction
that would violate the securities laws of the United States, without prejudice,
however, to its right at all times to sell or otherwise dispose of all or any
part of its Notes under an effective registration statement under the Act or
under an exemption from such registration available under the Act, and subject,
nevertheless, to the disposition of its property being at all times within its
control.
7.3. It has all requisite power and authority to enter
into, deliver and perform its obligations under this Agreement and this
Agreement has been duly authorized by it.
SECTION 8. INDEMNIFICATION.
8.1. Each Grantor shall, jointly and severally, without
limitation as to time, indemnify and hold harmless Purchasers and each person,
if any, who controls (within the meaning of Section 15 of the Act or Section
20(a) of the Exchange Act) Purchasers (any of such persons being hereinafter
referred to as a "CONTROLLING PERSON"), and the respective officers, directors,
partners, employees, representatives and agents of Purchasers and any such
controlling person (collectively, the "INDEMNIFIED PARTIES"), to the fullest
extent lawful, from and against any and all losses, claims, damages,
liabilities, costs (including, without limitation, costs of preparation and
reasonable attorneys' fees) and expenses whatsoever (including, without
limitation, costs and expenses incurred in connection with investigating,
preparing, pursuing or defending against any of the foregoing) (collectively,
"LOSSES"), as incurred, arising out of or based upon (i) any representation or
warranty made by or on behalf of any Grantor under or in connection with the
Note Documents, any written report or any other written information or report
delivered by any Grantor pursuant to the Note Documents, which shall have been
false or incorrect in any material respect when made or deemed made, or (ii) any
act, omission, transaction or event contemplated by the Note Documents; provided
that no Grantor shall be liable to any Indemnified Party for any Losses that
arise from the gross negligence or willful misconduct of such Indemnified Party.
Each Grantor shall notify Purchasers promptly of the institution, threat or
assertion of any Proceeding of which such Grantor is aware in connection with
the matters addressed by this Agreement which involves any Grantor and any of
the Indemnified Parties. The indemnification provided under this Section 8 shall
be effective with respect to any Proceeding whether or not (x) such Proceeding
is brought by any Grantor, any of its directors, securityholders or creditors,
an Indemnified Party or any other person, (y) an Indemnified Party is otherwise
party thereto or (z) the Transactions are consummated.
8.2. Promptly after receipt by an Indemnified Party under
this Section 8 of notice of the commencement of any action, such Indemnified
Party will, if a claim in respect thereof is to be made
AMERCO NOTE PURCHASE AGREEMENT
against the indemnifying party under Section 8.1 above, notify Issuer of the
commencement thereof; but the failure to notify Issuer shall not relieve it from
any liability that it may have under Section 8.1 except to the extent that it
has been materially prejudiced (through the forfeiture of substantive rights or
defenses) by such failure; and provided further that the failure to notify
Issuer shall not relieve it from any liability that it may have to an
Indemnified Party otherwise than under Section 8.1 above.
8.3. If the indemnification provided for in this Section 8
is unavailable to an Indemnified Party or is insufficient to hold such
Indemnified Party harmless for any Losses in respect of which this Section 8
would otherwise apply by its terms (other than by reason of exceptions provided
in this Section 8), then Grantors, in lieu of indemnifying such Indemnified
Party, shall contribute to the amount paid or payable by such Indemnified Party
as a result of such Losses (i) in such proportion as is appropriate to reflect
the relative benefits received by Grantors, on the one hand, and Purchasers, on
the other hand, from the Offering, or (ii) if the allocation provided by clause
(i) above is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in clause (i)
above but also the relative fault of any Grantor, on the one hand, and
Purchasers, on the other hand, in connection with the actions, statements or
omissions that resulted in such Losses, as well as any other relevant equitable
considerations. The relative benefits received by Grantors, on the one hand, and
Purchasers, on the other hand, shall be deemed to be in the same proportion as
the total net proceeds from the Offering (before deducting expenses) received by
Grantors and the fees received by Purchasers, bear to the total price of the
Notes on or prior to the Closing Date. The relative fault of Grantors, on the
one hand, and Purchasers, on the other hand, shall be determined by reference
to, among other things, whether any untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a material fact relates
to information supplied by any Grantor, on the one hand, or Purchasers, on the
other hand, and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The amount
paid or payable by an Indemnified Party as a result of any Losses shall be
deemed to include any legal or other fees or expenses incurred by such party in
connection with any Proceeding, to the extent such party would have been
indemnified for such fees or expenses if the indemnification provided for in
this Section 8 was available to such party.
Each party hereto agrees that it would not be just and
equitable if contribution pursuant to this Section 8.3 were determined by pro
rata allocation or by any other method of allocation that does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. Notwithstanding the provisions of this Section 8.3, Purchasers shall
not be required to contribute, in the aggregate, any amount in excess of the
amount by which fees received by Purchasers on or prior to the Closing Date with
respect to the Notes exceeds the amount of any damages that Purchasers have
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
8.4. The indemnity and contribution agreements contained
in this Section 8 are in addition to any liability that any Grantor may
otherwise have to the Indemnified Parties.
8.5. No claim may be made by any Grantor or any other
Person against any Indemnified Party for any special, indirect, consequential or
punitive damages (including, without limitation, any loss of profits, business
or anticipated savings) in respect of any claim for breach of contract or any
other theory of liability arising out of or related to the Transactions, or any
act, omission or event occurring in connection therewith; and each Grantor, on
its own behalf and on behalf of its Affiliates, hereby waives, releases and
agrees not to xxx upon any such claim for any such damages,
AMERCO NOTE PURCHASE AGREEMENT
whether or not accrued and whether or not known or suspected to exist in its
favor. Furthermore, no Indemnified Party shall have any liability to any
Grantor, any Affiliate of any Grantor, or any of their respective
securityholders or creditors for or in connection with the Transactions except
for direct damages determined in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct.
SECTION 9. CONDITIONS.
9.1. The obligations of Purchasers to purchase the Notes
under this Agreement are subject to the satisfaction or waiver of each of the
following conditions:
(a) All the representations and warranties of each
Grantor in each of the Note Documents to which it is a party shall be true and
correct in all material respects at and as of the Closing Date after giving
effect to the Transactions with the same force and effect as if made on and as
of such date. On or prior to the Closing Date, each Grantor and, to the actual
knowledge of each Grantor, after reasonable inquiry, each other party to the
Note Documents (other than Purchasers) shall have performed or complied in all
material respects with all of the agreements and satisfied in all material
respects all conditions on their respective parts to be performed, complied with
or satisfied pursuant to the Note Documents (other than conditions to be
satisfied by such other parties, which the failure to so satisfy could not
reasonably be expected to have a Material Adverse Effect). There shall exist on
the Closing Date no Event of Default or Default (each as defined in the
Indenture).
(b) No injunction, restraining order or order of any
nature by a Governmental Authority shall have been issued as of the Closing Date
that would prevent or materially interfere with the consummation of any of the
Transactions; and no stop order suspending the qualification or exemption from
qualification of any of the Notes in any jurisdiction shall have been issued and
no Proceeding for that purpose shall have been commenced or, to the actual
knowledge of any Grantor after reasonable inquiry, be pending or threatened as
of the Closing Date.
(c) No action shall have been taken and no Applicable Law
shall have been enacted, adopted or issued that would, as of the Closing Date,
prevent the consummation of any of the Transactions. Except as disclosed in the
SEC Documents or the Bankruptcy Documents, no Proceeding shall be pending or, to
the actual knowledge of Issuer after reasonable inquiry, threatened other than
Proceedings that (A) if adversely determined could not, singly or in the
aggregate, adversely affect the issuance or marketability of the Notes, and (B)
could not, singly or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
(d) Since the date as of which information is given in
the most recently filed Issuer 10-Q and Bankruptcy Documents, in the reasonable
judgment of Purchasers there shall not have been any material adverse change
with respect to Issuer's business, assets, operations, properties, financial
condition or prospects.
(e) Subsequent to March 15, 2004, there shall not have
occurred: (i) any change in U.S. or international financial, political or
economic conditions or currency exchange rates or exchange controls as would, in
the judgment of Purchasers be likely to materially impair the marketability of
the Notes; (ii) any material suspension or material limitation of trading in
securities generally on the New York Stock Exchange or any setting of minimum
prices for trading on such exchange; (iii) any banking moratorium declared by
U.S. Federal or New York authorities; (iv) any major disruption of settlements
of securities or clearance services in the United States or (v) any attack on,
outbreak or escalation of hostilities or act of terrorism involving the United
States, any declaration of war by Congress or any other
AMERCO NOTE PURCHASE AGREEMENT
national or international calamity or emergency if, in the reasonable judgment
of Purchasers, the effect of any such attack, outbreak, escalation, act,
declaration, calamity or emergency makes it impractical or inadvisable to
proceed with completion of the offering or sale of and payment for the Notes.
(f) The Purchasers shall have received on the Closing
Date:
(i) a certificate dated the Closing Date, signed by the
chief executive officer, president or vice president of Issuer and the
principal financial or accounting officer of Issuer, in which such
officers, to the best of their knowledge after reasonable
investigation, shall state that the representations and warranties of
Grantors in this Agreement are true and correct, that each Grantor has
complied with all agreements and satisfied all conditions on its part
to be performed or satisfied hereunder at or prior to the Closing Date,
and that, subsequent to the most recent Issuer 10-Q, there has been no
material adverse change in the business, assets, operations,
properties, financial condition or prospects of Issuer;
(ii) a certificate of the secretary or the assistant
secretary of each Grantor certifying that no dissolution or liquidation
proceedings as to such Grantor have been commenced or are contemplated,
and attaching (a) resolutions of the board of directors of such
Grantor, evidencing approval of the Transactions and the execution,
delivery and performance thereof, and authorizing certain officers to
execute and deliver the same, and certifying that such resolutions were
duly and validly adopted and have not since been amended, revoked or
rescinded, (b) the Charter Documents of such Grantor, certified by the
Secretary of State of the State of such Grantor's organization, (c) an
incumbency certificate signed by the secretary or an assistant
secretary and one other officer of such Grantor certifying as to the
names, titles and true signatures of the officers of such Grantor
authorized to sign the Note Documents to which it is a party and the
other documents to be delivered hereunder, and (d) corporate and tax
good standing certificates as to such Grantor from their respective
states of incorporation and other jurisdictions of incorporation and
from each jurisdiction where each Grantor is qualified to do business.
(iii) an opinion, dated the Closing Date, of counsel to the
Issuer, substantially to the effect set forth in Exhibit D hereto;
(iv) fully executed originals of each of the Notes,
Indenture, Collateral Agreement, Intercreditor Agreement, other
Security Documents and other Note Documents;
(v) an officer's certificate certifying true and complete
copies of the Senior Credit Agreement and related documents, in the
form set forth in Exhibit E hereto;
(vi) evidence satisfactory that all actions necessary or
desirable to perfect and protect the Liens created by the Security
Documents and contemplated thereby have been taken;
(vii) all fees (including, without limitation, the fees
required under the Term Sheets other than the Closing Fee) due and
payable on or before the Closing Date and all expenses due and payable
on or before the Closing Date; and
(viii) all items, documents, agreement, instruments,
certificates or filings required to be delivered pursuant to the
Indenture.
AMERCO NOTE PURCHASE AGREEMENT
(g) None of the parties (other than Purchasers) to any of
the Note Documents, including without limitation this Agreement, the Indenture,
the Security Documents, and the Notes, are in breach or default under their
respective obligations thereunder.
(h) Purchasers shall have approved in writing any
material modification, amendment, termination, cancellation or waiver of any
term of the Plan of Reorganization.
(i) Purchasers shall have received satisfactory evidence
that the Confirmation Order shall have become a Final Order, in such manner as
is reasonably acceptable to Purchasers.
(j) Each Grantor shall have complied in all material
respects with the provisions of the Plan of Reorganization.
9.2. The obligation of Issuer to sell the Notes under this
Agreement is subject to the satisfaction or waiver of each of the following
conditions:
(a) Purchasers shall have delivered payment to Issuer for
the Notes pursuant to Section 2 and Section 4 of this Agreement.
(b) All of the representations and warranties of
Purchasers in this Agreement shall be true and correct in all respects at and as
of the Closing Date, with the same force and effect as if made on and as of such
date.
(c) No injunction, restraining order or order of any
nature by a Governmental Authority shall have been issued as of the Closing Date
that would prevent or interfere with the issuance and sale of the Notes; and no
stop order suspending the qualification or exemption from qualification of any
of the Notes in any jurisdiction shall have been issued and no Proceeding for
that purpose shall have been commenced or be pending or threatened as of the
Closing Date.
SECTION 10. MISCELLANEOUS.
10.1. All notices given pursuant to any provision of this
Agreement shall be in writing and mailed, delivered, telegraphed or telecopied
and confirmed to the party to be notified and its counsel: (a) if to any
Grantor, to: AMERCO, 0000 Xxxxxxxxx Xxx, Xxxxx 000, Xxxx, Xxxxxx 00000-0000,
attention: Assistant Treasurer, (fax no. 000-000-0000); with a copy to: U-Haul
International, Inc., 0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000,
attention: General Counsel, (fax no. 000-000-0000); and with a copy to: Squire,
Xxxxxxx & Xxxxxxx L.L.P., Two Renaissance Square, 00 Xxxxx Xxxxxxx Xxxxxx, Xxxxx
0000, Xxxxxxx, Xxxxxxx 00000, attention: Xxxxxxxxxxx X. Xxxxxxx, Esq., (fax no.
000-000-0000); and (b) if to any Purchaser, to the address for such Purchaser as
set forth on Schedule A attached hereto, with a copy to Sidley Xxxxxx Xxxxx &
Xxxx LLP, 000 Xxxx Xxxxx Xxxxxx, Xxx Xxxxxxx, XX 00000, Attention: Xxxx Xxxxx,
Esq. (fax no. 000- 000-0000).
10.2. This Agreement has been and is made solely for the
benefit of and shall be binding upon Grantors, Purchasers and, to the extent
provided in Section 8 hereof, the controlling persons, officers, directors,
partners, employees, representatives and agents referred to in Section 8, and
their respective heirs, executors, administrators, successors and assigns, all
as and to the extent provided in this Agreement, and no other person shall
acquire or have any right under or by virtue of this Agreement. The term
"successors and assigns" shall not include a purchaser of any of the Notes from
Purchasers merely because of such purchase.
AMERCO NOTE PURCHASE AGREEMENT
10.3. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO
THE APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION
OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
10.4. EACH GRANTOR HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS INDENTURE, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS.
10.5. EACH GRANTOR IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
10.6. EACH GRANTOR IRREVOCABLY CONSENTS, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS
OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
THE ISSUER AND THE GRANTOR AT THE ADDRESS SET FORTH HEREIN FOR THE ISSUER, SUCH
SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH MAILING. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF ANY HOLDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE ISSUER IN ANY OTHER JURISDICTION.
10.7. This Agreement may be signed in various counterparts
which together shall constitute one and the same instrument.
10.8. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
10.9. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction to be invalid,
illegal, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions set forth herein shall remain in fall force and
effect and shall in no way be affected, impaired or invalidated, and the parties
hereto shall use their best efforts to find and employ an alternative means to
achieve the same or substantially the same result as that contemplated by such
term, provision, covenant or restriction. It is hereby stipulated and declared
to be the intention of the parties that they would have executed the remaining
terms, provisions, covenants and restrictions without including any of such that
may be hereafter declared invalid, illegal, void or unenforceable.
10.10. This Agreement may be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may be given, provided that the same are in writing and signed by each of the
signatories hereto.
AMERCO NOTE PURCHASE AGREEMENT
10.11. Any capitalized term not defined herein shall have
the meaning set forth for such term in the Indenture.
10.12. Whether or not the transactions contemplated hereby
are consummated, each Grantor agrees, jointly and severally to pay all costs and
expenses incurred by the Purchaser in connection with such transactions and in
connection with any amendments, waivers or consents under or in respect of this
Agreement or the Notes (whether or not such amendment, waiver or consent becomes
effective), including, without limitation: (a) the costs and expenses incurred
in enforcing or defending (or determining whether or how to enforce or defend)
any rights under this Agreement or the Notes or in responding to any subpoena or
other legal process or informal investigative demand issued in connection with
this Agreement or the Notes, or by reason of being a holder of any Note, and (b)
the costs and expenses, including financial advisors' fees, incurred in
connection with the insolvency or bankruptcy of any Grantor or in connection
with any work-out or restructuring of the transactions contemplated hereby and
by the Notes. Each Grantor will pay, and will save each Purchaser harmless from,
all claims in respect of any fees, costs or expenses if any, of brokers and
finders (other than those retained by such Purchaser). The obligations of each
Grantor under this Section 10.12 will survive the payment or transfer of any
Note, the enforcement, amendment or waiver of any provision of this Agreement or
the Notes, and the termination of this Agreement.
10.13. This Agreement, together with the Indenture, the
Registration Rights Agreement and the other Note Documents, constitutes the
entire understanding of the parties hereto and revokes and supersedes all prior
or contemporaneous agreements, arrangements and understandings between the
parties and is intended as a final expression of their agreement. This Agreement
shall take precedence over any other documents governing the purchase of the
Notes that may be in conflict herewith.
* * *
AMERCO NOTE PURCHASE AGREEMENT
Please confirm that the foregoing correctly sets forth the
agreement between Issuer and Purchasers.
Very truly yours,
ISSUER:
AMERCO, a Nevada corporation
By: /s/ Xxxx X. Xxxxxxxxxxx
__________________________________
Xxxx X. Xxxxxxxxxxx, Secretary
SIGNATURE PAGE 1 OF 10
AMERCO NOTE PURCHASE AGREEMENT
INITIAL GUARANTORS:
AMERCO REAL ESTATE COMPANY OF
ALABAMA, INC., an Alabama corporation
AMERCO REAL ESTATE COMPANY OF
TEXAS, INC., a Texas corporation
AMERCO REAL ESTATE COMPANY, a Nevada
corporation
AMERCO REAL ESTATE SERVICES, INC., a
Nevada corporation
EIGHT PAC COMPANY, a Nevada corporation
ELEVEN PAC COMPANY, a Nevada corporation
FIFTEEN PAC COMPANY, a Nevada corporation
FIVE PAC COMPANY, a Nevada corporation
FOUR PAC COMPANY, a Nevada corporation
FOURTEEN PAC COMPANY, a Nevada
corporation
NATIONWIDE COMMERCIAL CO., an Arizona
corporation
NINE PAC COMPANY, a Nevada corporation
ONE PAC COMPANY, a Nevada corporation
PF&F HOLDINGS CORPORATION, a Delaware
corporation
SEVEN PAC COMPANY, a Nevada corporation
SEVENTEEN PAC COMPANY, a Nevada
corporation
SIX PAC COMPANY, a Nevada corporation
SIXTEEN PAC COMPANY, a Nevada corporation
TEN PAC COMPANY, a Nevada corporation
SIGNATURE PAGE 2 OF 10
AMERCO NOTE PURCHASE AGREEMENT
THREE PAC COMPANY, a Nevada corporation
TWELVE PAC COMPANY, a Nevada corporation
TWO PAC COMPANY, a Nevada corporation
YONKERS PROPERTY CORPORATION, a New
York corporation
By: /s/ Xxxxxx Xxxxxxxx
_______________________________________________
Xxxxxx Xxxxxxxx, President
SIGNATURE PAGE 3 OF 10
AMERCO NOTE PURCHASE AGREEMENT
EMOVE, INC., a Nevada corporation
WEB TEAM ASSOCIATES, INC., a Nevada
corporation
By: /s/ Xxxxxx Xxxxxxxx
--------------------------------
Xxxxxx Xxxxxxxx, Secretary
SIGNATURE PAGE 4 OF 10
AMERCO NOTE PURCHASE AGREEMENT
U-HAUL INSPECTIONS LTD., a British Columbia
corporation
By: /s/ Xxxxxxxx Xxxxxx
_______________________________________________
Xxxxxxxx Xxxxxx, Secretary
SIGNATURE PAGE 5 OF 10
AMERCO NOTE PURCHASE AGREEMENT
A & M ASSOCIATES, INC., an Arizona
corporation
U-HAUL BUSINESS CONSULTANTS, INC., an
Arizona corporation
U-HAUL CO. (CANADA) LTD. U-HAUL CO.
(CANADA) LTEE, an Ontario corporation
U-HAUL CO. OF ALABAMA, INC., an Alabama
corporation
U-HAUL CO. OF ALASKA, an Alaska corporation
U-HAUL CO. OF ARIZONA, an Arizona
corporation
U-HAUL CO. OF ARKANSAS, a Arkansas
corporation
U-HAUL CO. OF CALIFORNIA, a California
corporation
U-HAUL CO. OF COLORADO, a Colorado
corporation
U-HAUL CO. OF CONNECTICUT, a Connecticut
corporation
U-HAUL CO. OF DISTRICT OF COLUMBIA,
INC., a District of Columbia corporation
U-HAUL CO. OF FLORIDA, a Florida corporation
U-HAUL CO. OF GEORGIA, a Georgia
corporation
U-HAUL CO. OF IDAHO, INC., an Idaho
corporation
U-HAUL CO. OF ILLINOIS, INC., an Illinois
corporation
U-HAUL CO. OF INDIANA, INC., an Indiana
corporation
U-HAUL CO. OF IOWA, INC., an Iowa
corporation
SIGNATURE PAGE 6 OF 10
AMERCO NOTE PURCHASE AGREEMENT
U-HAUL CO. OF KANSAS, INC., a Kansas
corporation
U-HAUL CO. OF KENTUCKY, a Kentucky
corporation
U-HAUL CO. OF LOUISIANA, a Louisiana
corporation
U-HAUL CO. OF MAINE, INC., a Maine
corporation
U-HAUL CO. OF MARYLAND, INC., a Maryland
corporation
U-HAUL CO. OF MASSACHUSETTS AND
OHIO, INC., a Massachusetts corporation
U-HAUL CO. OF MICHIGAN, a Michigan
corporation
U-HAUL CO. OF MINNESOTA, a Minnesota
corporation
U-HAUL CO. OF MISSISSIPPI, a Mississippi
corporation
U-HAUL CO. OF MONTANA, INC., a Montana
corporation
U-HAUL CO. OF NEBRASKA, a Nebraska
corporation
U-HAUL CO. OF NEVADA, INC., a Nevada
corporation
U-HAUL CO. OF NEW HAMPSHIRE, INC., a
New Hampshire corporation
U-HAUL CO. OF NEW JERSEY, INC., a New
Jersey corporation
U-HAUL CO. OF NEW MEXICO, INC., a New
Mexico corporation
U-HAUL CO. OF NEW YORK, INC., a New York
corporation
SIGNATURE PAGE 7 OF 10
AMERCO NOTE PURCHASE AGREEMENT
U-HAUL CO. OF NORTH CAROLINA, a North
Carolina corporation
U-HAUL CO. OF NORTH DAKOTA, a North
Dakota corporation
U-HAUL CO. OF OKLAHOMA, INC., an
Oklahoma corporation
U-HAUL CO. OF OREGON, an Oregon
corporation
U-HAUL CO. OF PENNSYLVANIA, a
Pennsylvania corporation
U-HAUL CO. OF RHODE ISLAND, a Rhode
Island corporation
U-HAUL CO. OF SOUTH CAROLINA, INC., a
South Carolina corporation
U-HAUL CO. OF SOUTH DAKOTA, INC., a
South Dakota corporation
U-HAUL CO. OF TENNESSEE, a Tennessee
corporation
U-HAUL CO. OF TEXAS, a Texas corporation
U-HAUL CO. OF UTAH, INC., a Utah corporation
U-HAUL CO. OF VIRGINIA, a Virginia
corporation
U-HAUL CO. OF WASHINGTON, a Washington
corporation
U-HAUL CO. OF WEST VIRGINIA, a West
Virginia corporation
U-HAUL CO. OF WISCONSIN, INC., a Wisconsin
corporation
U-HAUL CO. OF WYOMING, INC., a Wyoming
corporation
U-HAUL COMPANY OF MISSOURI, a Missouri
corporation
SIGNATURE PAGE 8 OF 10
AMERCO NOTE PURCHASE AGREEMENT
U-HAUL INTERNATIONAL, INC., a Nevada
corporation
U-HAUL LEASING & SALES CO., a Nevada
corporation
U-HAUL OF HAWAII, INC., a Hawaii corporation
U-HAUL SELF-STORAGE CORPORATION, a
Nevada corporation
U-HAUL SELF-STORAGE MANAGEMENT
(WPC), INC., a Nevada corporation
By: /s/ Xxxx X. Xxxxxxxxxxx
_______________________________________________
Xxxx X. Xxxxxxxxxxx, Secretary
SIGNATURE PAGE 9 OF 10
AMERCO NOTE PURCHASE AGREEMENT
ACCEPTED AND AGREED TO BY PURCHASERS:
BLACK DIAMOND OFFSHORE LTD.
By: Xxxxxxx Capital, L.P.,
its investment advisor
By: Asgard Investment Corp.,
its general partner
By: [ILLEGIBLE]
---------------------------------
Name:
Title:
DOUBLE BLACK DIAMOND OFFSHORE LDC
By: Xxxxxxx Capital, L.P.,
its investment advisor
By: Asgard Investment Corp.,
its general partner
By: [ILLEGIBLE]
---------------------------------
Name:
Title:
CANPARTNERS INVESTMENTS IV, LLC
By: /s/ Xxxxx X. Xxxxxx
-------------------------
Name: Xxxxx X. Xxxxxx
Title: Authorized Signatory
NEWSTART FACTORS, INC.
By: /s/ Xxxx Xxxxxx
-------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
SATELLITE ASSET MANAGEMENT, L.P.,
as investment manager on behalf of its managed
funds and accounts
By: /s/ Xxxxx Xxxxxxxxx
------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chief Operating Officer and
Principal
SATELLITE CREDIT OPPORTUNITIES FUND, LTD.
By: Satellite Asset Management, L.P.,
its investment manager
By: /s/ Xxxxx Xxxxxxxxx
--------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chief Operating Officer and
Principal
SIL LOAN FUNDING LLC
By: /s/ Xxxxx Xxxxx
--------------------------
Name: Xxxxx Xxxxx
Title: Attorney in fact
SIGNATURE PAGE 10 OF 10
AMERCO NOTE PURCHASE AGREEMENT
ANNEX I TO THE PURCHASE AGREEMENT DATED MARCH 1, 2004
Terms used herein shall have the meanings ascribed to them
below, or if not set forth below, shall have the meanings ascribed to them in
the Indenture.
"ACT" Section 1.3
"AGREEMENT" Section 1.5
"APPLICABLE AGREEMENTS" Section 6.8
"APPLICABLE LAW" Section 6.8
"BANK AGENT" Section 1.1
"CHARTER DOCUMENTS" Section 6.8
"CLOSING" Section 4
"CLOSING DATE" Section 4
"CODE" Section 6.24
"COLLATERAL" Section 1.1
"COLLATERAL AGREEMENT" Section 1.1
"COLLATERAL TRUSTEE" Section 1.1
"COMMISSION" Section 5.9
"CONTROLLING PERSON" Section 8.1
"ENVIRONMENTAL CLAIMS" Section 6.27
"ENVIRONMENTAL LAWS" Section 6.27
"ERISA" Section 6.24
"EXCHANGE ACT" Section 5.7
"EXCHANGE OFFER" Section 5.12
"FINANCIAL STATEMENTS" Section 6.20
"GAAP" Section 6.19
"GOVERNMENTAL AUTHORITY" Section 6.8
"GRANTORS" Section 1.1
"GUARANTY" Section 1.1
ANNEX, EXHIBITS & SCHEDULES-1
AMERCO NOTE PURCHASE AGREEMENT
"INDEMNIFIED PARTIES" Section 8.1
"INDENTURE" Section 1.1
"INITIAL GUARANTORS" First Paragraph
"INTELLECTUAL PROPERTY" Section 6.18
"INTERCREDITOR AGREEMENT" Section 1.1
"ISSUER" First Paragraph
"LOSSES" Section 8.1
"MATERIAL ADVERSE EFFECT" Section 6.2
"MATERIALS OF ENVIRONMENTAL CONCERN" Section 6.27
"NOTES" Section 1.1
"OFFERING" Section 1.2
"PERMITS" Section 6.10
"PERMITTED LIEN" Indenture
"PLEDGED STOCK" Section 6.14
"PROCEEDINGS" Section 6.11
"PURCHASE PRICE" Section 2
"PURCHASERS" Addressees
"REGULATED PERSONS" Section 6.12
"SECURITY INTERESTS" Section 1.1
"SENIOR CREDIT AGREEMENT" Section 1.1
"TAX" Section 6.17
"TIA" Section 6.6
"TRANSACTIONS" Section 3
"TRUSTEE" Section 1.1
ANNEX, EXHIBITS & SCHEDULES-2
AMERCO NOTE PURCHASE AGREEMENT
The following terms shall have the definitions indicated:
"Anti-Terrorism Laws" shall mean any laws relating to
terrorism or money laundering, including Executive Order No. 13224 and the USA
Patriot Act.
"Bankruptcy Code" means Title 11 of the United States Code (11
U.S.C. Sections 101 et seq.), as amended from time to time, and any successor
statute.
"Bankruptcy Court" means the United States Bankruptcy Court
for the District of Nevada.
"Bankruptcy Documents" means, collectively, the Plan of
Reorganization, the Disclosure Statement, each as approved by a Final Order, the
Confirmation Order and the Final Order.
"Confirmation Order" means the order of the Bankruptcy Court
pursuant to a Final Order confirming the Plan of Reorganization pursuant to
Section 1129 of the Bankruptcy Code.
"Debtors" mean Issuer and Amerco Real Estate Company.
"Disclosure Statement" means the Disclosure Statement
concerning the Debtors' First Amended Joint Plan of Reorganization under Chapter
11 of the United States Bankruptcy Code dated November 26, 2003, together with
exhibits and schedules thereto, filed with the Bankruptcy Court.
"DTC" shall mean The Depository Trust Company.
"Exempt Resales" shall mean sales by Purchasers of some or all
of the Notes purchased by Purchasers hereunder solely to persons whom Purchaser
reasonably believes to be "qualified institutional buyers" as defined in Rule
144A under the Act.
"Final Order" means an order or judgment of the Bankruptcy
Court or other court of competent jurisdiction as to which the time to appeal,
seek leave to appeal, petition for certiorari or move for reargument or
rehearing has expired and as to which no appeal, petition for certiorari or
other proceedings for reargument, rehearing or leave to appeal shall be pending
or as to which any right to appeal, petition for certiorari, reargue, rehear or
seek leave to appeal shall have been waived in writing by the party holding such
right in form and substance satisfactory to the Issuer and the Purchasers or, in
the event that an appeal, writ of certiorari, or reargument or rehearing thereof
or leave to appeal has been motioned for or sought, such order of the court
shall have been affirmed by the highest court to which such order was appealed,
or certiorari has been denied or from which reargument or rehearing or leave to
appeal was motioned for or sought, and the time to take any further appeal,
petition for certiorari, move for reargument or rehearing or seek leave to
appeal shall have expired.
"Issuer 10-K" shall mean that certain Annual Report pursuant
to Section 13 or 15(d) of the Securities Act of 1934 on Form 10-K, for the
fiscal year ended on March 31, 2003 of Issuer, filed with the Commission on
August 25, 2003.
"Issuer 10-Q's" shall mean each Quarterly Report pursuant to
Section 13 or 15(d) of the Securities Act of 1934 on Form 10-Q, for the fiscal
quarters ending on June 30, 2003, September 30, 2003, and December 31, 2003
filed with the Commission on September 10, 2003, November 14, 2003, and February
17, 2004 respectively.
ANNEX, EXHIBITS & SCHEDULES-3
AMERCO NOTE PURCHASE AGREEMENT
"Plan of Reorganization" means the First Amended Joint Plan of
Reorganization of Debtors dated November 26, 2003, together with exhibits and
schedules thereto, filed with the Bankruptcy Court, together with any amendments
or modifications thereto.
"Pledged Company" shall have the meaning set forth in the
Stock Pledge Agreement.
"Reasonable Inquiry" shall mean reasonable inquiry by senior
officers of Issuer or any other Initial Guarantor, as applicable.
"SEC Documents" means all reports, documents and other
information filed by Issuer pursuant to the Securities Act of 1933, as amended,
and the Securities Exchange Act of 1934, as amended, and all other rules and
regulations promulgated by the SEC, including such Person's filed Form 10-K and
subsequently filed quarterly reports on Form 10-Q and current reports on Form
8-K. All references to the SEC Documents shall be deemed to include all
documents incorporated by reference therein and all amendments and supplements
thereto.
"Term Sheets" means, collectively, that certain Term Sheet
entered into by Issuer and Canyon Capital Advisors LLC, dated December 1, 2003
and that certain Term Sheet entered into by Issuer, Double Black Diamond
Offshore LDC and Black Diamond Offshore Ltd., dated December 4, 2003, each as
amended or supplemented.
ANNEX, EXHIBITS & SCHEDULES-4
AMERCO NOTE PURCHASE AGREEMENT
EXHIBIT A
FORM OF INDENTURE
ANNEX, EXHIBITS & SCHEDULES-5
AMERCO NOTE PURCHASE AGREEMENT
EXHIBIT B
FORM OF INTERCREDITOR AGREEMENT
ANNEX, EXHIBITS & SCHEDULES-6
AMERCO NOTE PURCHASE AGREEMENT
EXHIBIT C
FORM OF ESCROW LETTER
ANNEX, EXHIBITS & SCHEDULES-7
AMERCO NOTE PURCHASE AGREEMENT
EXHIBIT D
FORM OF LEGAL OPINION
ANNEX, EXHIBITS & SCHEDULES-8
AMERCO NOTE PURCHASE AGREEMENT
EXHIBIT E
OFFICER'S CERTIFICATE
ANNEX, EXHIBITS & SCHEDULES-9
AMERCO NOTE PURCHASE AGREEMENT
SCHEDULE A
PURCHASERS
Canpartners Investments IV, LLC Principal Amount of Notes Purchased: $15,000,000.00
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000 Purchase Price of Notes Purchased: $14,700,000.00
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Black Diamond Offshore, Ltd. Principal Amount of Notes Purchased: $2,400,000.00
c/o Carlson Capital, L.P. Purchase Price of Notes Purchased: $2,352,000.00
0000 XxXxxxxx Xxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Double Black Diamond Offshore LDC Principal Amount of Notes Purchased: $12,600,000.00
c/o Carlson Capital, L.P. Purchase Price of Notes Purchased: $12,348,000.00
0000 XxXxxxxx Xxx, Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxx Xxxxxx
New Start Factors, Inc. Principal Amount of Notes Purchased: $11,498,000.00
0 Xxxxxxxx Xxxxx, Xxxxx 0000 Purchase Price of Notes Purchased: $11,268,040.00
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx
Managing Director
Satellite Asset Management, L.P. Principal Amount of Notes Purchased: $7,677,355.00
000 Xxxxx Xxx., 00xx xxxxx Purchase Price of Notes Purchased: $7,523,808.00
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx,
Chief Operating Officer
Satellite Credit Opportunities Fund, Ltd. Principal Amount of Notes Purchased: $6,434,645.00
000 Xxxxx Xxx., 00xx xxxxx Purchase Price of Notes Purchased: $6,305,952.00
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx,
Chief Operating Officer
SIL Loan Funding LLC Principal Amount of Notes Purchased: $24,390,000.00
000 Xxxxxxxxx Xxxx Purchase Price of Notes Purchased: $23,902,200.00
Xxxxxxxxx, XX 00000
Attention: Xx Xxxx
Managing Director
ANNEX, EXHIBITS & SCHEDULES-10
AMERCO NOTE PURCHASE AGREEMENT
SCHEDULE 6.3
SUBSIDIARIES
ANNEX, EXHIBITS & SCHEDULES-11
AMERCO NOTE PURCHASE AGREEMENT
SCHEDULE 6.4(A)
INDEBTEDNESS OF EACH GRANTOR
ANNEX, EXHIBITS & SCHEDULES-12
AMERCO NOTE PURCHASE AGREEMENT
SCHEDULE 6.4(B)
TRAC LEASE TRANSACTIONS
ANNEX, EXHIBITS & SCHEDULES-13
AMERCO NOTE PURCHASE AGREEMENT
SCHEDULE 6.55
AFFILIATES
ANNEX, EXHIBITS & SCHEDULES-14
AMERCO NOTE PURCHASE AGREEMENT
SCHEDULE 6.58
MAXIMUM DEBT; REFINANCING INDEBTEDNESS
ANNEX, EXHIBITS & SCHEDULES-15
AMERCO NOTE PURCHASE AGREEMENT
