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INTERCREDITOR AGREEMENT
dated as of March 1, 2004
by and between
XXXXX FARGO BANK, N.A.,
as Note Collateral Agent and Trustee
and
XXXXX FARGO FOOTHILL, INC.,
as Loan Agreement Agent
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INTERCREDITOR AGREEMENT
This INTERCREDITOR AGREEMENT, dated as of March 1, 2004 (as
the same may be amended, modified, restated or supplemented from time to time,
this "Agreement"), is by and between: (i) XXXXX FARGO BANK, N.A., as "Trustee"
under the Indenture (as defined below) for the benefit of the Holders from time
to time of the Note Obligations (as defined below) (in such capacity, and
together with any successor thereto in such capacity, the "Note Collateral
Agent" or the "Trustee"), and (ii) XXXXX FARGO FOOTHILL, INC., as
"Administrative Agent" under the Loan Agreement (as defined below) for the
benefit of the holders from time to time of the Priority Lien Obligations (as
defined below) (in such capacity, and together with any successor thereto in
such capacity, the "Loan Agreement Agent").
RECITALS
WHEREAS, pursuant to that certain Loan and Security Agreement,
dated as of even date herewith, entered into by AMERCO, a Nevada corporation
("AMERCO"), each of its subsidiaries party thereto as "Borrowers" (together with
AMERCO, the "Borrowers" and each a "Borrower"), the Lenders (as defined below)
party thereto and the Loan Agreement Agent (such loan and security agreement, as
amended, restated, modified, supplemented or renewed (the "Loan Agreement") or
as refunded, replaced (whether upon or after termination or otherwise) or
refinanced (including by means of sales of debt securities to institutional
investors) in whole or in part from time to time pursuant to a Permitted
Refinancing, the "Replacement Loan Agreement"), the Borrowers and the Guarantors
(as defined in the Loan Agreement) (collectively, the "Grantors") have entered
into, and may in the future enter into, the Priority Lien Security Documents
pursuant to which the Grantors have granted, or will grant, the Loan Agreement
Agent a first priority security interest in the Collateral; and
WHEREAS, pursuant to that certain Indenture, dated of even
date herewith (as the same may be amended, restated, modified, supplemented,
renewed, refunded, replaced or refinanced from time to time, the "Indenture"),
by and among AMERCO, the Guarantors (as defined in the Indenture) and the Note
Collateral Agent, the Grantors have entered into, or may in the future enter
into, the Note Security Documents pursuant to which the Grantors have granted,
or will grant, the Note Collateral Agent a security interest in the Collateral,
which security interest is subordinate to the security interest of the Priority
Liens; and
WHEREAS, pursuant to Section 11.05 of the Indenture, by
acceptance of its Notes, each Holder has agreed to be bound by this Agreement;
and
WHEREAS, the parties hereto desire to enter into this
Agreement to confirm their relative rights with respect to the Collateral as
provided in this Agreement;
NOW THEREFORE, in consideration of the premises, covenants and
agreements as herein set forth and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, the parties hereto
hereby agree as follows:
AGREEMENT
ARTICLE 1.
DEFINITIONS
For purposes of this Agreement, the terms listed in this
Article 1 shall have the respective meanings set forth in this Article 1:
"Affiliate" means, as applied to any Person, any other Person
who, directly or indirectly, controls, is controlled by, or is under common
control with, such Person. For purposes of this definition, "control" means the
possession, directly or indirectly, of the power to direct the management and
policies of a Person, whether through the ownership of Stock, by contract, or
otherwise.
"Agreement" has the meaning specified in the preamble hereof.
"AMERCO" has the meaning specified in the recitals hereof.
"Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors.
"Borrowers" and "Borrower" have the respective meanings set
forth in the recitals hereof.
"Business Day" means any day that is not a Saturday, Sunday,
or other day on which banks are authorized or required to close in the State of
California.
"Capital Lease" means a lease that is required to be
capitalized for financial reporting purposes in accordance with GAAP.
"Cash Equivalents" means (a) marketable direct obligations
issued or unconditionally guaranteed by the United States of America or issued
by any agency thereof and backed by the full faith and credit of the United
States of America, in each case maturing within 1 year from the date of
acquisition thereof, (b) marketable direct obligations issued by any state of
the United States of America or any political subdivision of any such state or
any public instrumentality thereof maturing within 1 year from the date of
acquisition thereof and, at the time of acquisition, having one of the 2 highest
ratings obtainable from either Standard & Poor's Rating Group ("S&P") or Xxxxx'x
Investors Service, Inc. ("Moody's"), (c) commercial paper maturing no more than
270 days from the date of creation thereof and, at the time of acquisition,
having a rating of at least A-1 from S&P or at least P-1 from Moody's, (d)
certificates of deposit or bankers' acceptances maturing within 1 year from the
date of acquisition thereof issued by any bank organized under the laws of the
United States of America or any state thereof having at the date of acquisition
thereof combined capital and surplus of not less than $250,000,000, (e) demand
deposit accounts maintained with any bank organized under the laws of the United
States of America or any state thereof so long as the amount maintained with any
individual bank is less than or equal to $100,000 and is insured by the Federal
Deposit Insurance Corporation, and (f) investments in money market funds
substantially all of whose assets are invested in the types of assets described
in clauses (a) through (e) above.
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"Collateral" means all present and future properties and
assets of AMERCO or any other Grantor upon which a security interest is granted
to secure the Priority Lien Obligations and/or the Note Obligations pursuant to
the Priority Lien Security Documents and the Note Security Documents,
respectively.
"Credit Bid Rights" means, in respect of any order relating to
a sale of assets in any Insolvency or Liquidation Proceeding, that:
(1) such order grants the Holders of Notes (individually
and in any combination) the right to bid at the sale of such assets and
the right to offset such Holders' claims secured by Note Liens upon
such assets against the purchase price of such assets if:
(a) the bid of such Holders is the highest bid
or otherwise determined by the court to be the best offer at
the sale; and
(b) the bid of such Holders includes a cash
purchase price component payable at the closing of the sale in
an amount that would be sufficient on the date of the closing
of the sale, if such amount were applied to such payment on
such date, to Discharge all unpaid Priority Lien Obligations
(except Unasserted Contingent Obligations) and to satisfy all
liens entitled to priority over the Priority Liens that attach
to the proceeds of the sale, and such order requires or
permits such amount to be so applied; and
(2) such order allows the claims of the Holders of Notes
in such Insolvency or Liquidation Proceeding to the extent required for
the grant of such rights.
"Default" means an event, condition, or default that, with the
giving of notice, the passage of time, or both, would be, as applicable, a Loan
Agreement Event of Default or a Note Event of Default.
"Default Notice" has the meaning specified in Section 3.3(b)
hereof.
"Discharge of the Priority Lien Obligations" means termination
of all commitments to extend credit under the Loan Agreement or the Replacement
Loan Agreement that would constitute Priority Lien Debt, payment in full in cash
of the principal of and interest and premium (if any) on all Priority Lien Debt
(except undrawn letters of credit), discharge or cash collateralization (at the
lower of (1) 105% of the aggregate undrawn amount and (2) the percentage of the
aggregate undrawn amount required for release of liens under the terms of the
applicable Priority Lien Document) of all letters of credit outstanding under
any Priority Lien Debt, and payment in full in cash of all other Priority Lien
Obligations (except Unasserted Contingent Obligations) that are outstanding and
unpaid at the time the Priority Lien Debt is paid in full in cash. "Discharge"
and "Discharged" shall have the correlative meaning.
"Enforcement Action" means the exercise of any right or remedy
with respect to any Collateral (including any right of set-off) or the taking of
any action to enforce, collect or realize upon any Collateral, including,
without limitation, the exercise of any right, remedy or action to:
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(1) take possession of or control over any Collateral (other
than the Pledged Collateral);
(2) exercise any collection rights in respect of any
Collateral or retain any proceeds of accounts and other obligations receivable
paid to it directly by any account debtor;
(3) exercise any right of set-off against any property subject
to any Priority Lien;
(4) foreclose upon any Collateral or take or accept any
transfer of title in lieu of foreclosure upon any Collateral;
(5) enforce any claim to the proceeds of insurance upon any
Collateral;
(6) deliver any notice, claim or demand relating to the
Collateral to any Person (including any securities intermediary, depositary bank
or landlord) in the possession or control of any Collateral or acting as bailee,
custodian or agent for any holder of Priority Liens in respect of any
Collateral;
(7) otherwise enforce any remedy available upon default for
the enforcement of any Lien upon the Collateral;
(8) deliver any notice for any of the foregoing purposes or
commence any proceeding for any of the foregoing purposes; or
(9) file, or join in the filing of, any Insolvency or
Liquidation Proceeding or seek relief in any Insolvency or Liquidation
Proceeding permitting it to do any of the foregoing.
"Event of Default" means either a Loan Agreement Event of
Default or a Note Event of Default.
"GAAP" means generally accepted accounting principles as in
effect from time to time in the United States of America, consistently applied.
"Grantors" has the meaning specified in the recitals hereof.
"Guarantee" means a guarantee other than by endorsement of
negotiable instruments for collection in the ordinary course of business, direct
or indirect, in any manner including, without limitation, by way of a pledge of
assets or through letters of credit or reimbursement agreements in respect
thereof, of all or any part of any Indebtedness (whether arising by virtue of
partnership arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take or pay or to maintain financial statement
conditions or otherwise).
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"Hedge Agreement" means any and all agreements, or documents
now existing or hereafter entered into by any Grantor that provide for an
interest rate, credit, commodity or equity swap, cap, floor, collar, forward
foreign exchange transaction, currency swap, cross currency rate swap, currency
option, or any combination of, or option with respect to, these or similar
transactions, for the purpose of hedging any Grantor's exposure to fluctuations
in interest or exchange rates, loan, credit exchange, security or currency
valuations or commodity prices.
"Holder" means a Person in whose name a Note is registered.
"Indebtedness" means (a) all obligations for borrowed money,
(b) all obligations evidenced by bonds, debentures, notes, or other similar
instruments and all reimbursement or other obligations in respect of letters of
credit, bankers acceptances, interest rate swaps, or other financial products,
(c) all obligations as a lessee under Capital Leases, (d) all obligations or
liabilities of others secured by a Lien on any asset of a Person or its
Subsidiaries, irrespective of whether such obligation or liability is assumed,
(e) all obligations to pay the deferred purchase price of assets (other than
trade payables incurred in the ordinary course of business and repayable in
accordance with customary trade practices), (f) all obligations under Hedge
Agreements, and (g) any obligation guaranteeing or intended to guarantee
(whether directly or indirectly guaranteed, endorsed, co-made, discounted, or
sold with recourse) any obligation of any other Person that constitutes
Indebtedness under any of clauses (a) through (f) above.
"Indenture" has the meaning specified in the recitals hereof.
"Insolvency or Liquidation Proceeding" means:
(1) any case commenced by or against any Grantor under
any Bankruptcy Law, any other proceeding for the reorganization,
recapitalization or adjustment or marshalling of the assets or
liabilities of any Grantor, any receivership or assignment for the
benefit of creditors relating to any Grantor or any similar case or
proceeding relative to any Grantor or its creditors, as such, in each
case whether or not voluntary;
(2) any liquidation, dissolution, marshalling of assets
or liabilities or other winding up of or relating to any Grantor, in
each case whether or not voluntary and whether or not involving
bankruptcy or insolvency; or
(3) any other proceeding of any type or nature in which
substantially all claims of creditors of any Grantor are determined and
any payment or distribution is or may be made on account of such
claims.
"Lenders" means, at any time, the parties then holding (or
committed to provide) loans, letters of credit or other extensions of credit or
obligations that constitute (or when provided will constitute) Priority Lien
Obligations.
"Lien" means any interest in an asset securing an obligation
owed to, or a claim by, any Person other than the owner of the asset,
irrespective of whether (a) such interest shall be based on the common law,
statute, or contract, (b) such interest shall be recorded or perfected, and (c)
such interest shall be contingent upon the occurrence of some future event or
events or the existence of some future circumstance or circumstances, without
limiting the generality of
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the foregoing, the term "Lien" includes the lien or security interest arising
from a mortgage, deed of trust, encumbrance, pledge, hypothecation, assignment,
deposit arrangement, security agreement, conditional sale or trust receipt, or
from a lease, consignment, or bailment for security purposes and also including
reservations, exceptions, encroachments, easements, rights-of-way, covenants,
conditions, restrictions, leases, and other title exceptions and encumbrances
affecting estates or interests in real property.
"Loan Agreement" has the meaning specified in the recitals
hereof.
"Loan Agreement Agent" has the meaning specified in the
preamble hereof.
"Loan Agreement Event of Default" has the meaning specified in
Section 8 of the Loan Agreement or, if applicable, the comparable section of the
Replacement Loan Agreement.
"Net Proceeds" means, with respect to any asset disposition by
AMERCO or any other Grantor or any proceeds from casualty insurance received by
AMERCO or any other Grantor or any issuance by AMERCO or any other Grantor of
Stock, the aggregate amount of cash or Cash Equivalents received for such assets
or Stock, net of (a) reasonable and customary transaction costs and expenses,
(b) transfer taxes (including sales and use taxes), (c) amounts payable to
holders of applicable Permitted Liens (as defined in the Loan Agreement or the
Replacement Loan Agreement) to the extent that such Permitted Liens (as defined
in the Loan Agreement or the Replacement Loan Agreement), if any, are senior in
priority to the Priority Liens, (d) an appropriate reserve for income taxes in
accordance with GAAP, and (e) appropriate amounts to be provided as a reserve
against liabilities or otherwise held in escrow in association with any such
disposition, in each case clauses (a) though (e) to the extent the amounts so
deducted are properly attributable to such transaction and payable (or reserved)
by AMERCO or any other Grantor in connection with such disposition or loss or
the issuance of Stock, including, without limitation, reasonable and customary
commissions and underwriting discounts, to a Person that is not an Affiliate of
AMERCO or such other Grantor.
"Note Collateral Agent" has the meaning specified in the
preamble hereof.
"Note Debt" means the $200,000,000 aggregate principal amount
of the Notes issued under the Indenture on the date of the Indenture and all
other Obligations in respect thereof.
"Note Documents" means, collectively, the Indenture, the
Notes, the Note Guarantees, the Note Purchase Agreement, the Registration Rights
Agreement, the Note Security Documents, this Agreement and all agreements
binding on any Grantor related thereto.
"Note Event of Default" has the meaning specified in Section
6.01 of the Indenture.
"Note Guarantees" means, collectively, each Guarantee by a
Grantor (other than AMERCO) of the Note Obligations.
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"Note Lien" means a Lien granted pursuant to a Note Security
Document by any Grantor to the Note Collateral Agent (or any other Holder, or
representative of Holders, of Note Obligations) upon any property or assets of
such Grantor to secure Note Obligations.
"Note Obligations" means Note Debt and all other Obligations
in respect thereof, including, without limitation, any fees, indemnification or
reimbursement obligations owing to the Holders, the Trustee or the Note
Collateral Agent under the Note Documents.
"Note Purchase Agreement" means the Note Purchase Agreement,
dated as of March 1, 2004, among AMERCO, the guarantors party thereto and
certain Holders of Notes.
"Note Security Documents" means the Indenture and one or more
related security agreements, pledge agreements, collateral assignments,
mortgages, collateral agency agreements, control agreements, deeds of trust or
other grants or transfers for security executed and delivered by any Grantor
creating (or purporting to create) a Note Lien upon Collateral in favor of any
Holder or Holders of Note Debt, or any trustee, agent or representative acting
for any such Holder, including, without limitation, the Note Collateral Agent,
as security for any Note Obligations, in each case, as amended, modified,
renewed, restated or replaced, in whole or in part, from time to time, in
accordance with its terms.
"Notes" means the 9.0% Second Lien Senior Secured Notes due
2009.
"Obligations" means:
(1) any principal (including reimbursement obligations
with respect to letters of credit whether or not drawings have been
made thereon), interest (including any interest accruing at the then
applicable rate provided in any applicable Secured Debt Document after
the maturity of the Indebtedness thereunder or during the existence of
an Event of Default and any reimbursement obligations therein and
interest accruing at the then applicable rate provided in any
applicable Secured Debt Document after the filing of any petition in
bankruptcy, or the commencement of any insolvency, reorganization or
like proceeding, whether or not a claim for post-filing or
post-petition interest is allowed in such proceeding), penalties, fees,
indemnifications, reimbursements, damages and other liabilities payable
under the Secured Debt Documents (including any fees and expenses
accruing after the filing of a petition in bankruptcy, or the
commencement of any insolvency, reorganization or like proceeding,
whether or not a claim for post-filing or post-petition interest is
allowed in such proceeding);
(2) the obligation to pay an amount equal to all damages
that a court shall determine any holder of the applicable Secured Debt
has suffered by reason of a breach by the applicable obligor thereunder
of any obligation, covenant or undertaking with respect to any
applicable Secured Debt Document;
(3) any net obligations of the obligor under any
applicable Secured Debt Document to any holder of Secured Debt (or any
representative on its behalf) or any Affiliate thereof under any
interest hedge agreement or foreign exchange agreement; and
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(4) all other "Obligations" (as defined in the Loan
Agreement, the Replacement Loan Agreement and the Indenture, as
applicable).
"Officer" means, with respect to any Person, the Chairman of
the Board, the Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant Treasurer,
the Controller, the Secretary or any Vice-President of such Person.
"Officers' Certificate" means a certificate signed on behalf
of AMERCO by two Officers of AMERCO, one of whom must be the principal executive
officer, the principal financial officer, the treasurer or the principal
accounting officer of AMERCO.
"Opinion of Counsel" means an opinion in a form reasonably
satisfactory to the Trustee from legal counsel who is reasonably acceptable to
the Trustee. The counsel may be an employee of or counsel to AMERCO, any
Subsidiary of AMERCO or the Trustee.
"Permitted Refinancing" means any refinancing of the Priority
Lien Debt provided that: (a) the documents effecting such refinancing do not
directly prohibit the making of payments on the Note Debt; and (b) the senior
lenders party to such Permitted Refinancing become parties to this Agreement or
execute an agreement with the Holders of Note Obligations on substantially
identical terms as this Agreement.
"Person" means any natural person, corporation, limited
liability company, limited partnership, general partnership, limited liability
partnership, joint venture, trust, land trust, business trust, or other
organization, irrespective of whether it is a legal entity, and any government
and agency or political subdivision thereof.
"Pledged Collateral" means any tangible property in the
possession of the Priority Lien Collateral Agent (or its agents or bailees) in
which a security interest is perfected by such possession, including, without
limitation, any investment property, cash collateral account, deposit account,
electronic chattel paper or letter of credit rights or other Collateral as to
which the Priority Lien Collateral Agent (or its agents or bailees) has control
and in which a security interest is perfected by such control. For purposes of
this Agreement, the terms "investment property", "deposit account", "electronic
chattel paper" and "letter of credit rights" shall have the meanings given such
terms in the New York Uniform Commercial Code, as in effect on the date hereof.
"Priority Lien" means a Lien granted pursuant to a Priority
Lien Security Document by any Grantor to Priority Lien Collateral Agent or to
any holder, or representative of holders, of Priority Lien Obligations upon any
property or assets of such Grantor to secure Priority Lien Obligations; and
"Priority Liens" means, collectively, all such Liens.
"Priority Lien Collateral Agent" means the Loan Agreement
Agent or, after all Priority Lien Obligations in respect of the Loan Agreement
have been Discharged, if applicable, the Replacement Loan Agreement Agent.
"Priority Lien Debt" means the principal amount of any
Indebtedness incurred under the Loan Agreement or the Replacement Loan Agreement
and all other Obligations in
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respect thereof, including, without limitation, any such Indebtedness incurred
in any Insolvency or Liquidation Proceeding; provided that the principal amount
of such Indebtedness under the Loan Agreement or the Replacement Loan Agreement
constituting Priority Lien Debt shall at no time exceed $575,000,000 less
mandatory permanent prepayments and permanent reductions in the Revolving
Commitment (as defined in the Loan Agreement or Replacement Loan Agreement) plus
advances made pursuant to the Loan Agreement or Replacement Loan Agreement to
pay expenses of the Lenders (including expenses accruing after the commencement
of any Insolvency or Liquidation Proceeding, whether or not a claim for
post-filing or post-petition expenses is allowed in such proceeding), advances
made to protect or preserve the Collateral, advances made to pay interest
(including interest accruing under Section 2.6(c) of the Loan Agreement or a
comparable section of the Replacement Loan Agreement and interest accruing after
the commencement of any Insolvency or Liquidation Proceeding, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding)
and advances made pursuant to the Loan Agreement or the Replacement Loan
Agreement to pay fees under the Loan Agreement or the Replacement Loan Agreement
(including fees accruing after the commencement of any Insolvency or Liquidation
Proceeding, whether or not a claim for post-filing or post-petition fees are
allowed in such proceeding).
"Priority Lien Documents" means the Loan Agreement or the
Replacement Loan Agreement and the Priority Lien Security Documents and all
other agreements governing, securing or relating to any Priority Lien
Obligations.
"Priority Lien Obligations" means the Priority Lien Debt and
all other Obligations of any Grantor in respect thereof under the Priority Lien
Documents.
"Priority Lien Security Documents" means the Loan Agreement or
the Replacement Loan Agreement and one or more related security agreements,
pledge agreements, collateral assignments, mortgages, deeds of trust or other
grants or transfers for security executed and delivered by any Grantor creating
(or purporting to create) a Lien upon Collateral in favor of any holder or
holders of Priority Lien Debt, or any trustee, agent or representative acting
for any such holders, including, without limitation, the Priority Lien
Collateral Agent, as security for any Priority Lien Obligations, in each case,
as amended, modified, renewed, restated or replaced in whole or in part, from
time to time, in accordance with its terms.
"Registration Rights Agreement" means the Registration Rights
Agreement dated as of March 1, 2004 between AMERCO and certain Holders of Notes
party thereto.
"Replacement Loan Agreement" has the meaning specified in the
recitals hereto.
"Replacement Loan Agreement Agent" means the Person who
becomes the "Administrative Agent" under any loan agreement entered into
pursuant to a Permitted Refinancing.
"Secured Debt" means Note Debt and Priority Lien Debt.
"Secured Debt Document" means the Note Documents and the
Priority Lien Documents.
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"Standstill Period" means a period of time commencing on the
date of delivery of a Default Notice and ending on the earlier of:
(1) the date 180 days following the date of such Default
Notice or, if there has occurred a Standstill Period
or Standstill Periods within the immediately
preceding 365 day period, the date 180 days (less the
number of days in the portion of any Standstill
Period occurring during the immediately preceding 365
day period) following the date of such Default
Notice, or
(2) the date the Note Event of Default which is the
subject of such Default Notice has been cured or
waived in writing by the Trustee or the Holders.
"Stock" means all shares, options, warrants, interests,
participations, or other equivalents (regardless of how designated) of or in a
Person, whether voting or nonvoting, including common stock, preferred stock, or
any other "equity security" (as such term is defined in Rule 3a11-1 of the
General Rules and Regulations promulgated by the United States Securities and
Exchange Commission (and any successor thereto) under the Securities Exchange
Act of 1934, as in effect from time to time).
"Subsidiary" of a Person means a corporation, partnership,
limited liability company, or other entity in which that Person directly or
indirectly owns or controls the shares of Stock having ordinary voting power to
elect a majority of the board of directors (or appoint other comparable
managers) of such corporation, partnership, limited liability company, or other
entity; provided, however, that, except for purposes of Section 3.8 hereof, the
following entities shall not be deemed to be Subsidiaries of any Grantor
hereunder: (1) Private Mini Storage Realty, L.P., a Texas limited partnership;
(2) PM Preferred Properties, L.P., a Texas limited partnership; (3) SAC Holding
Corporation, a Nevada corporation, SAC Holding II Corporation, a Nevada
corporation, Montreal Holding Corporation, a Nevada corporation, and each of
their respective subsidiaries, whether now existing or hereafter formed; (4)
Self-Storage International Holding Corporation, a Nevada corporation, and any
subsidiary thereof, whether now existing or hereafter formed; (5) Republic
Western Insurance Company, an Arizona corporation, and each of its subsidiaries;
(6) Oxford Life Insurance Company, an Arizona corporation, and each of its
subsidiaries; (7) Storage Realty, L.L.C., a Texas limited liability company; (8)
INW Company, a Washington corporation; (9) EJOS, Inc., an Arizona corporation;
(10) Japal, Inc., a Nevada corporation; (11) M.V.S., Inc., a Nevada corporation;
(12) Pafran, Inc., a Nevada corporation; (13) Sophmar, Inc., a Nevada
corporation; (14) Picacho Peak Investments Co., a Nevada corporation; and (15)
any subsidiary of AMERCO formed under the laws of a jurisdiction outside of the
United States and Canada.
"Trustee" has the meaning specified in the recitals hereof.
"Unassorted Contingent Obligations" means, at any time,
Obligations for taxes, costs, indemnifications, reimbursements, damages and
other liabilities (except (i) the principal of and interest and premium (if any)
on, and fees relating to, any Indebtedness, (ii) contingent obligations to
reimburse the issuer of an outstanding letter of credit for amounts that may be
drawn or paid thereunder and (iii) any such contingent claims or demands as to
which the
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Priority Lien Collateral Agent or any holder of Priority Lien Obligations has
then notified AMERCO) in respect of which no claim or demand for payment has
been made at such time.
ARTICLE 2.
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of Note Collateral Agent.
The Note Collateral Agent represents, warrants, acknowledges and agrees on
behalf of itself and any Holders of the Note Obligations on the date hereof that
(1) it is authorized to enter into this Agreement on behalf of itself and each
Holder of Note Obligations, (2) it has the corporate power and authority and the
legal right to execute and deliver and perform its obligations under this
Agreement and has taken all necessary corporate action to authorize its
execution, delivery and performance of this Agreement, and (3) this Agreement
constitutes a legal, valid and binding obligation of the Note Collateral Agent.
Section 2.2 Representations and Warranties of Loan Agreement Agent. The
Loan Agreement Agent represents, warrants, acknowledges and agrees on behalf of
itself and the Lenders under the Loan Agreement on the date hereof that (1) it
is authorized to enter into this Agreement on behalf of itself and such Lenders,
(2) it has the corporate power and authority and the legal right to execute and
deliver and perform its obligations under this Agreement and has taken all
necessary corporate action to authorize its execution, delivery and performance
of this Agreement, and (3) this Agreement constitutes a legal, valid and binding
obligation of the Loan Agreement Agent.
ARTICLE 3.
INTERCREDITOR RELATIONS
Section 3.1 Agreement for the Benefit of Holders of Priority Liens. The
Trustee and the Note Collateral Agent agree, and each Holder of Notes by
accepting a Note agrees, that, so long as any Priority Lien Obligations exist
that have not been Discharged, (1) the Note Liens are, to the extent and in the
manner provided in this Article 3, junior and subordinate in ranking to all
Priority Liens, whenever granted or attaching, upon any present or future
Collateral, (2) the Priority Liens, whenever granted or attaching, upon any
present or future Collateral, will be prior and senior to the Note Liens, (3)
they will not at any time contest the validity, perfection, priority or
enforceability of the Priority Lien Obligations, the Priority Liens or the
Priority Lien Documents or the Liens and security interests of the Priority Lien
Collateral Agent in the Collateral securing the Priority Lien Obligations and
(4) they will not take or assert any Lien on, or security interest in, any
assets of any Grantor or any Affiliate of a Grantor to secure the Note
Obligations unless the Priority Lien Collateral Agent also has a superior Lien
on, and security interest in, such assets to secure the Priority Lien
Obligations.
Section 3.2 Ranking. Notwithstanding (a) anything to the contrary
contained in the Note Security Documents, (b) the time of incurrence of any
Secured Debt, (c) the time, order or method of attachment of the Note Liens or
the Priority Liens, (d) the time or order of filing or recording of financing
statements or other documents filed or recorded to perfect any Lien upon any
Collateral, (e) the time of taking possession or control over any Collateral,
(f) the rules for determining priority under the Uniform Commercial Code or any
other law governing relative
11
priorities of secured creditors, (g) that any Priority Lien may not have been
perfected, (h) that any Priority Lien may be or have become subordinated, by
equitable subordination or otherwise, to any other Lien, or (i) any other
circumstance of any kind or nature whatsoever, whether similar or dissimilar to
any of the foregoing, so long as any Priority Lien Obligations exist that have
not been Discharged, the Note Liens will in all circumstances be junior and
subordinate in ranking to all Priority Liens, whenever granted, upon any present
or future Collateral, and the Priority Liens, whenever granted, upon any present
or future Collateral to the extent the Priority Liens secure the Priority Lien
Obligations will be prior and superior to the Note Liens.
Section 3.3 Restriction on Enforcement of Note Liens.
(a) Subject to clauses (1) through (4) below, Section
3.3(b) and Section 3.14, so long as any Priority Lien Obligations exist that
have not been Discharged, the holders of Priority Liens will have the exclusive
right to enforce, foreclose, collect or realize upon any Collateral consistent
with the provisions of the Priority Lien Security Documents and applicable law;
provided, however, that, prior to or concurrent with the taking of any such
Enforcement Action, the Priority Lien Collateral Agent shall endeavor to deliver
written notice to the Note Collateral Agent that such Enforcement Action has
been commenced, provided that the Priority Lien Collateral Agent shall have no
liability to the Holders for failure to give any notice which is not otherwise
expressly required by applicable law, and the failure to give any notice to the
Note Collateral Agent or the Holders shall not constitute a default under this
Agreement or render ineffective any provision of this Agreement. The Trustee and
the Holders of Notes will not authorize or instruct the Note Collateral Agent,
and the Note Collateral Agent will not, and will not authorize or direct any
Person acting for it, the Trustee or any Holder of Note Obligations, to take any
Enforcement Action, except that, in any event, any Enforcement Action may be
taken, authorized or instructed by the Note Collateral Agent:
(1) as necessary to perfect, or maintain the
perfection or priority of, a Lien upon any Collateral by any method of
perfection except through possession or control; provided, however,
that, in the event that the Priority Lien Collateral Agent, after
written notice from the Trustee or the Note Collateral Agent to do so,
fails to perfect its Priority Liens against any Collateral for which
possession or control is required in order to perfect such Liens, then
the Note Collateral Agent may take control or possession of such
Collateral in order to perfect its Lien in accordance with applicable
law, provided, further, that the Note Collateral Agent shall also hold
any such Collateral for the benefit of the Priority Lien Collateral
Agent and the Lenders consistent with Article 3 hereof;
(2) as necessary to prove, preserve or protect
(but not enforce) the Note Liens, in each case, subject to the
provisions of the Note Security Documents;
(3) with respect to any filing by any Person of
an Insolvency or Liquidation Proceeding, the filing of any claim in or
the taking of any other action not inconsistent with the express
provisions of this Agreement, required by applicable law with respect
to such Insolvency or Liquidation Proceeding, including filing any
necessary responsive or defensive pleadings in opposition to any
motion, claim, adversary proceeding or other pleadings (i) in order to
prevent any Person (other than the Priority Lien Collateral Agent or
Lenders) from seeking to foreclose on the Collateral or to
12
supersede any claim thereto of the Holders of the Note Obligations, the
Trustee or the Note Collateral Agent or (ii) in opposition to any
motion, claim, adversary proceeding or other pleading made by any
Person objecting to or otherwise seeking the disallowance of the claims
of the Holders of the Note Obligations, the Trustee or the Note
Collateral Agent; or
(4) to exercise Credit Bid Rights with respect
to the Note Debt at any sale or foreclosure of Collateral.
(b) If a Note Event of Default has occurred under the
Indenture and the Holders of Note Obligations have accelerated or demanded
payment of the Note Obligations or delivered written notice to AMERCO that a
Note Event of Default based on AMERCO's failure to make a payment of principal
or interest as and when due has occurred and is continuing in accordance with
the terms of the Indenture, the Note Collateral Agent may give the Priority Lien
Collateral Agent written notice (each, a "Default Notice") thereof, specifying
the nature of the Note Event of Default in reasonable detail, and the Priority
Lien Collateral Agent's receipt of which shall commence a Standstill Period as
against the Note Collateral Agent. If the Note Event of Default is continuing at
the expiration of the Standstill Period, and if the Priority Lien Collateral
Agent has not, prior to the expiration of such Standstill Period, notified the
Note Collateral Agent that the Priority Lien Collateral Agent has commenced and
is diligently and in good faith pursuing one or more Enforcement Actions, then
(and only then), upon an additional written notice to the Priority Lien
Collateral Agent, the Note Collateral Agent may, subject to the Lien priority
set forth in this Agreement and prior application of the proceeds of the
Collateral (less the Note Collateral Agent's reasonable expenses, if any, in
obtaining such proceeds) to the Priority Lien Obligations, as provided herein,
take one or more Enforcement Actions.
(c) None of the rights and remedies otherwise available
to the holders of Priority Liens in respect of the foreclosure or other
enforcement of Priority Liens and none of the other rights and remedies of the
holders of Priority Liens and Priority Lien Obligations under the Priority Lien
Documents will be impaired, restricted or affected by this Article 3 or any
actions taken by the holders of Priority Liens hereunder which are not in
violation of the terms of this Agreement.
(d) At any time any Priority Lien Obligations exist that
have not been Discharged:
(1) the Priority Lien Collateral Agent will have
the sole right to adjust settlement of all insurance claims and
condemnation awards in the event of any covered loss, theft,
destruction or condemnation of any Collateral and all claims under
insurance constituting Collateral, subject to the terms of the Priority
Lien Security Documents;
(2) all proceeds of insurance on or constituting
Collateral and all condemnation awards resulting from a taking of any
Collateral will inure to the benefit of, and will be paid to, the
holders of the Priority Liens; and
(3) the Note Collateral Agent will cooperate, if
necessary and as reasonably requested by the Priority Lien Collateral
Agent, in effecting the payment of
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insurance proceeds to the Priority Lien Collateral Agent. If the Note
Collateral Agent unreasonably fails to do so, each of the Priority Lien
Collateral Agent and the holder of any Priority Lien is hereby
irrevocably authorized and empowered, with full power of substitution,
to execute and deliver any documents or instruments in the name of the
Note Collateral Agent reasonably required to effect the payment of
insurance proceeds to the Priority Lien Collateral Agent.
(e) Subject to Section 3.14, so long as there are any
Priority Lien Obligations existing that have not been Discharged, none of the
Holders of Notes, the Trustee or the Note Collateral Agent will:
(1) request judicial relief, in an Insolvency or
Liquidation Proceeding or in any other court, that would hinder, delay,
limit or prohibit the lawful exercise or enforcement of any right or
remedy otherwise available to the holders of Priority Liens in respect
of Priority Liens or that would limit, invalidate, avoid or set aside
any Priority Lien or Priority Lien Security Document or subordinate the
Priority Liens to the Note Liens or grant the Priority Liens equal
ranking to the Note Liens;
(2) oppose or otherwise contest any motion for
relief from the automatic stay or from any injunction against
foreclosure or enforcement of Priority Liens made by any holder of
Priority Liens in any Insolvency or Liquidation Proceeding;
(3) oppose or otherwise contest any lawful
exercise by any holder of Priority Liens of the right to credit bid
Priority Lien Debt at any sale in foreclosure of Priority Liens;
(4) oppose or otherwise contest any other
request for judicial relief made in any court by any holder of Priority
Liens relating to the lawful enforcement of any Priority Lien;
(5) request relief from the automatic stay in
any Insolvency or Liquidation Proceeding; or
(6) challenge the enforceability, perfection or
the validity of the Priority Lien Obligations or the Priority Liens.
Section 3.4 Receipt of Payments by Trustee, Note Collateral Agent or
Noteholders.
(a) Payments of money (or Cash Equivalents) constituting
proceeds of property other than Collateral, received by the Trustee, the Note
Collateral Agent or any Holder of Note Obligations, shall not be governed by or
subject to the provisions of this Agreement and any such payment may be retained
to be applied in accordance with the terms of the Indenture.
(b) Except for payments received pursuant to Section
3.4(c) hereof, payments of money (or Cash Equivalents) constituting proceeds of
Collateral made by any Grantor to the Trustee, the Note Collateral Agent, or any
Holder of Note Obligations (including, without limitation, payments and
prepayments made for application to Note Obligations under the Indenture, or any
other Note Documents) at any time when any Priority Lien Obligations exist
14
that have not been Discharged shall not be subject to the provisions of this
Agreement or otherwise affected by the provisions of Article 3 (other than
Section 3.10) hereof, and any such permitted payments received by the Trustee,
the Note Collateral Agent or the Holders of Note Obligations shall be free from
the Priority Liens and all other Liens thereon except the Note Liens.
(c) Payments of money (or Cash Equivalents) constituting
proceeds of Collateral made by any Grantor to the Trustee, the Note Collateral
Agent or any Holder of Note Obligations (including, without limitation, payments
and prepayments made for application to Note Obligations under the Indenture or
any other Note Documents) at any time when the Priority Lien Obligations exist
that have not been Discharged, and after either (i) the commencement of any
Insolvency or Liquidation Proceeding; or (ii) the Trustee or the Note Collateral
Agent has received written notice from the Priority Lien Collateral Agent
stating that a Loan Agreement Event of Default has occurred and is continuing
and the Priority Lien Debt has become due and payable in full (whether at
maturity, upon acceleration or otherwise), shall be held by the Trustee or the
Note Collateral Agent for the account of the holder of Priority Liens and
remitted to the Priority Lien Collateral Agent upon demand by the Priority Lien
Collateral Agent. To the extent provided by applicable law, the Note Liens will
remain attached to and, subject to this Article 3, enforceable against all
proceeds so held or remitted.
Section 3.5 Insolvency or Liquidation Proceedings.
(a) The provisions of this Article 3 will be applicable
both before and after the filing of any petition by or against any Grantor under
any insolvency or Bankruptcy Law and all converted or succeeding cases in
respect thereof, and all references herein to any Grantor shall be deemed to
apply to the trustee for such Grantor and such Grantor as a
debtor-in-possession. The relative rights of holders of Secured Debt in or to
any distributions from or in respect of any Collateral or proceeds of Collateral
shall continue after the filing of such petition on the same basis as prior to
the date of such filing, subject to any court order approving the financing of,
or use of cash collateral by, any Grantor as debtor-in-possession. If, in any
Insolvency or Liquidation Proceeding and at any time any Priority Lien
Obligations exist that have not been Discharged, all of the Lenders (or such
number of the Lenders as may have the power to bind all of them):
(1) consent to any order for use of cash
collateral or agree to the extension of any Priority Lien Debt
(including, without limitation, any debtor-in- possession financing) to
any Grantor;
(2) consent to any order granting any priming
lien, replacement lien, cash payment or other relief on account of
Priority Lien Obligations as adequate protection (or its equivalent)
for the interests of the holders of Priority Liens in the property
subject to such Priority Liens;
(3) consent to any order approving post-petition
financing pursuant to Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code
(including, without limitation, any "roll-up" of Priority Lien
Obligations); or
15
(4) consent to any order relating to a sale of
assets of any Grantor that:
(i) provides, to the extent the sale is
to be free and clear of Liens, that all Priority Liens and
Note Liens shall attach to the proceeds of the sale; and
(ii) grants Credit Bid Rights to the
Holders of Notes to the extent the Note Collateral Agent is
not prohibited from receiving Credit Bid Rights under
applicable law,
then, the Holders of Notes, the Trustee and the Note Collateral Agent will not
oppose or otherwise contest the entry of such order.
(b) The Holders of Notes, the Trustee and the Note
Collateral Agent will not file or prosecute in any Insolvency or Liquidation
Proceeding any motion for adequate protection or for relief from the automatic
stay (in each case, or any comparable request for relief) based upon their
interests in the Collateral under the Note Liens, except that:
(1) they, or any of them, may freely seek and
obtain relief granting a junior lien co-extensive in all respects with,
but subordinated (as set forth in this Article 3) in all respects to,
all Liens granted in such Insolvency or Liquidation Proceeding to the
holders of Priority Lien Obligations; or
(2) they may assert rights consistent with this
Agreement in connection with the confirmation of any plan of
reorganization or similar dispositive restructuring plan (other than to
the extent such plan provides for the liquidation of assets or
properties of any Grantor); and
(3) they may freely seek and obtain any relief
upon a motion for adequate protection or for relief from the automatic
stay (in each case, or any comparable relief), without any condition or
restriction whatsoever, at any time when no Priority Lien Obligations
exist that have not been Discharged.
(c) If, in any Liquidation or Insolvency Proceeding, debt
obligations of the reorganized debtor secured by Liens upon any property of the
reorganized debtor are distributed, both on account of Priority Lien Obligations
and on account of the Note Obligations, then, to the extent the debt obligations
distributed on account of the Priority Lien Obligations and on account of the
Note Obligations are secured by Liens upon the same property, the provisions of
this Article 3 will survive the distribution of such debt obligations pursuant
to such plan and will apply with like effect to the Liens securing such debt
obligations.
(d) The Holders of Notes, the Trustee and the Note
Collateral Agent will not assert or enforce, at any time when any Priority Lien
Obligations exist that have not been Discharged, any claim under Section 506(c)
of the United States Bankruptcy Code senior to or on a parity with the Priority
Liens for costs or expenses of preserving or disposing of any Collateral.
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Section 3.6 Release of Collateral or Note Guarantees upon Sale or Other
Disposition.
(a) If, at any time when any Priority Lien Obligations
exist that have not been Discharged, AMERCO delivers an Officers' Certificate to
the Trustee and the Note Collateral Agent stating that:
(1) any specified Collateral, or all Stock owned
by any Grantor in a Subsidiary which, directly or indirectly through
another Subsidiary, owns such Collateral, is sold, transferred or
otherwise disposed of:
(A) by the owner of such
Collateral to a Person other than a Grantor in a transaction permitted under
both the Priority Lien Documents and the Indenture; provided, however, that the
Priority Lien Collateral Agent shall remit to the Note Collateral Agent the
proceeds, if any, of such disposition remaining at any time when no Priority
Lien Obligations exist that have not been Discharged or as ordered by a court of
competent jurisdiction; or
(B) during the existence of
any Loan Agreement Event of Default that has occurred and is continuing to the
extent the Priority Lien Collateral Agent has consented to such sale; provided,
however, that the Priority Lien Collateral Agent shall remit to the Note
Collateral Agent the proceeds, if any, of such distribution remaining at any
time when no Priority Lien Obligations exist that have not been Discharged or as
ordered by a court of competent jurisdiction; and
(2) either all Priority Lien Obligations have
been Discharged or all Priority Liens (not including the proceeds
payable to the Priority Lien Collateral Agent pursuant to clause (1)(B)
above), as the case may be, will be forever released and discharged
upon such sale, transfer or other disposition,
then (whether or not any Insolvency or Liquidation Proceeding is pending at the
time) the Note Liens upon such Collateral (not including the proceeds payable to
the Note Collateral Agent pursuant to clause (1)(B) above) will automatically be
released and discharged as and when and to the extent such Liens securing
Priority Lien Obligations are released and discharged.
(b) If, at any time when any Priority Lien Obligations
exist that have not been Discharged, AMERCO delivers an Officers' Certificate to
the Trustee and the Note Collateral Agent stating that:
(1) all or substantially all Stock owned by any
Grantor in any Subsidiary (a "Sold Subsidiary") is sold, transferred or
otherwise disposed of (whether directly by transfer of Stock issued by
the Sold Subsidiary or indirectly by transfer of Stock of other
Subsidiaries which, directly or indirectly, own Stock issued by the
Sold Subsidiary):
(A) by the owner of such Stock
to a Person other than any Grantor in a transaction permitted under the Priority
Lien Documents and the Indenture; provided, however, that the Priority Lien
Collateral Agent shall remit to the Note Collateral Agent the proceeds, if any,
of such disposition remaining at any time when no Priority Lien
17
Obligations exist that have not been Discharged or as ordered by a court of
competent jurisdiction; or
(B) during the existence of
any Loan Agreement Event of Default to the extent the Priority Lien Collateral
Agent has consented to such sale, transfer or disposition; provided, however,
that the Priority Lien Collateral Agent shall remit to the Note Collateral Agent
the proceeds, if any, of such distribution remaining at any time when no
Priority Lien Obligations exist that have not been Discharged or as ordered by a
court of competent jurisdiction; and
(2) either all Priority Lien Obligations have
been Discharged or each Guarantee of Priority Lien Obligations made by
the Sold Subsidiary and all Priority Liens upon property of the Sold
Subsidiary (not including the proceeds payable to the Priority Lien
Collateral Agent payable pursuant to clause (1)(B) above) will be
forever released and discharged upon such sale, transfer or other
disposition,
then (whether or not any Insolvency or Liquidation Proceeding is pending at the
time) the Note Guarantee made by such Sold Subsidiary, the Note Lien on the
Stock of such Subsidiary and all Note Liens upon the property of such Sold
Subsidiary will automatically be released and discharged as and when and to the
extent such guarantees of Priority Lien Obligations and Liens securing Priority
Lien Obligations (not including the proceeds payable to the Note Collateral
Agent pursuant to clause (1)(B) above) are released and discharged.
(c) Upon delivery to the Trustee and the Note Collateral
Agent of an Officers' Certificate stating that any release of Note Liens has
become effective pursuant to Section 3.6(a) or 3.6(b), the Note Collateral Agent
will promptly execute and deliver to the Priority Lien Collateral Agent and
AMERCO an instrument confirming such release on customary terms and without any
recourse, representation, warranty or liability whatsoever. If the Note
Collateral Agent unreasonably fails to do so, the Priority Lien Collateral Agent
is hereby irrevocably authorized and empowered, with full power of substitution,
to execute and deliver such instrument in the name of the Note Collateral Agent.
(d) Except as permitted in Section 3.6(a) and (b) above,
nothing herein shall be construed or deemed to permit the release of Note Liens
upon the Collateral without the express, written consent of the Holders of Note
Obligations.
Section 3.7 Amendment of Note Security Documents.
(a) At any time when any Priority Lien Obligations exist
that have not been Discharged, the Note Collateral Agent will not enter into,
and the Trustee and the Holders of Notes will not authorize or direct, any
amendment of or supplement to any Note Security Document relating to any
Collateral that would make such Note Security Document more burdensome in any
material respect with the comparable provisions of the Priority Lien Security
Documents relating to such Collateral, and no such amendment or supplement will
be enforceable. For the purposes of this Section 3.7(a), (i) no inconsistency
reflected in the Note Security Documents delivered in connection with the
issuance of the Notes, as compared with the comparable provisions of the
applicable Priority Lien Security Documents then in effect, will
18
be subject to the provisions of this Section 3.7(a), and (ii) any provision
granting rights or powers to the Note Collateral Agent that are not granted to
the holders of Priority Liens securing Priority Lien Obligations will be deemed
materially more burdensome and be ineffective until the Prior Lien Obligations
have been Discharged.
(b) No amendment, supplement, waiver or change otherwise
permitted by this Agreement in respect of the Priority Lien Documents will be
prohibited or in any manner restricted or affected by, or by reason of, the
provisions of this Article 3.
(c) Notwithstanding Section 3.7(a) or (b), without the
consent of any Holder of Notes, the Grantors, or any of them, and the Trustee
may, with the consent of the Note Collateral Agent, amend or supplement this
Agreement to:
(1) cure any ambiguity, defect or inconsistency;
or
(2) make any change that would provide any
additional rights or benefits to the Holders of Notes or that does not
(in the Trustee's good faith discretion) adversely affect the rights
under this Agreement of any such Holder.
Section 3.8 Waiver of Certain Subrogation, Marshalling, Appraisal and
Valuation Rights.
(a) To the fullest extent permitted by law, so long as
there are any Priority Lien Obligations that have not been Discharged, the
Holders of Notes, the Trustee and the Note Collateral Agent agree not to assert
or enforce (provided that upon Discharge of all Priority Lien Obligations, to
the extent available under applicable law, the ability to enforce such rights
shall be automatically reinstated):
(1) any right of subrogation to the rights or
interests of holders of Priority Liens (or any claim or defense based
upon impairment of any such right of subrogation);
(2) any right of marshalling accorded to a
junior lienholder, as against the holders of Priority Liens (as
priority lienholders), under equitable principles; or
(3) any statutory right of appraisal or
valuation accorded under any applicable state law to a junior
lienholder in a proceeding to foreclose on a Priority Lien.
(b) Without in any way limiting the generality of the
foregoing and subject to the provisions of the Loan Agreement or, if applicable,
the Replacement Loan Agreement, each holder of Priority Lien Obligations or
Priority Liens may at any time and from time to time, without the consent of or
notice to any Holder of Note Obligations, or Note Liens, without incurring any
responsibility or liability to any Holder of Note Obligations, or Note Liens,
and without in any manner prejudicing, affecting or impairing the ranking
agreements and other obligations set forth in this Article 3:
(1) make loans and advances to AMERCO or any of
its Subsidiaries or issue, guaranty or obtain letters of credit for
account of AMERCO or any of its
19
Subsidiaries or otherwise extend credit to AMERCO or any of its
Subsidiaries, in any amount (up to the maximum principal amount of the
Priority Lien Debt) and on any terms, whether pursuant to a commitment
or as a discretionary advance and whether or not any Default or failure
of condition is then continuing;
(2) change the manner, place or terms of payment
or extend the time of payment of, or renew or alter, compromise,
accelerate, extend or refinance, any Priority Lien Obligations or any
agreement, guaranty, Lien or obligation of AMERCO or any of its
Subsidiaries or any other person or entity in any manner related
thereto, or otherwise amend, supplement or change in any manner any
Priority Lien Obligations or Priority Liens or any such agreement,
guaranty, lien or obligation;
(3) increase or reduce the amount of any
Priority Lien Obligation (up to the maximum principal amount of the
Priority Lien Debt) or the interest, premium, fees or other amounts
payable in respect thereof;
(4) release or discharge any Priority Lien
Obligation or any guaranty thereof or any agreement or obligation of
AMERCO or any of its Subsidiaries or any other person or entity with
respect thereto (provided, however, that such release or discharge of a
Priority Lien shall not require the release or discharge of the
corresponding Note Lien except as provided in Section 3.6);
(5) take or fail to take any Priority Lien or
any other collateral security for any Priority Lien Obligation or take
or fail to take any action which may be necessary or appropriate to
ensure that any Priority Lien is duly enforceable or perfected or
entitled to priority as against any other Lien or to ensure that any
proceeds of any property subject to any Priority Lien are applied to
the payment of any Priority Lien Obligation;
(6) release, discharge or permit the lapse of
any or all Priority Liens;
(7) exercise or enforce, in any manner, order or
sequence, or fail to exercise or enforce, any right or remedy against
any Grantor or any collateral security or any other person, entity or
property in respect of any Priority Lien Obligation or any Priority
Lien or any right or power under this Article 3, and apply any payment
or proceeds of Collateral to the Priority Lien Obligations in any order
of application; or
(8) sell, exchange, release, foreclose upon or
commence any Enforcement Action with any property that may at any time
be subject to any Priority Lien.
(c) No exercise, delay in exercising or failure to
exercise any right arising under this Article 3, no act or omission of any
holder of Priority Liens or Priority Lien Obligations in respect of AMERCO or
any of its Subsidiaries or any other person or entity or any collateral security
for any Priority Lien Obligation or any right arising under this Article 3, no
change, impairment, or suspension of any right or remedy of any holder of any
Priority Liens or Priority Lien Obligations, and no other lawful act, failure to
act, circumstance, occurrence or event which, but for this provision, would or
could act as a release or exoneration of any obligation under this Article 3
will in any way affect, decrease, diminish or impair any of the
20
ranking agreements and other obligations of the Holders of Notes, the Trustee
and the Note Collateral Agent set forth in this Article 3.
(d) The Lenders, the Priority Lien Collateral Agent and
the other holders of Priority Liens or Priority Lien Obligations will not have
any duty whatsoever, express or implied, fiduciary or otherwise, to any Holder
of Note Obligations or Note Liens.
(e) To the maximum extent permitted by law, each of the
Holders of Notes, the Trustee and the Note Collateral Agent waives any claim it
may have against the Lenders, the Priority Lien Collateral Agent or any other
holder of Priority Liens or Priority Lien Obligations with respect to or arising
out of any action or failure to act on the part of the Lenders, the Priority
Lien Collateral Agent or any other holder of Priority Liens or Priority Lien
Obligations or their respective directors, officers, employees or agents with
respect to any exercise of rights or remedies in respect of the Priority Liens
or the Priority Lien Obligations or under the Priority Lien Documents or any
transaction relating to the Collateral. Neither any Lender nor any Priority Lien
Collateral Agent nor any other holder of Priority Liens or Priority Lien
Obligations nor any of their respective directors, officers, employees or agents
will be liable for failure to demand, collect or realize upon any of the
Collateral or for any delay in doing so, except to the extent arising out of the
gross negligence or willful misconduct (as determined by a final judgment of a
court of competent jurisdiction) of such Lender, Priority Lien Collateral Agent
or other holder or its directors, officers, employees or agents, or will be
under any obligation to sell or otherwise dispose of any Collateral upon the
request of AMERCO or any other Grantor or upon the request of any Holder of Note
Obligations, or Note Liens or any other Person or to take any other action
whatsoever with regard to the Collateral or any part thereof.
(f) The holders of Priority Liens and Priority Lien
Obligations, on the one hand, and the Holders of Note Obligations, or Note
Liens, on the other hand, shall each be responsible for keeping themselves
informed of the financial condition of AMERCO and its Subsidiaries and all other
circumstances bearing upon the risk of nonpayment of the Priority Lien
Obligations or Note Obligations. Neither the holders of Priority Liens and
Priority Lien Obligations, nor the Priority Lien Collateral Agent, on the one
hand, nor the Holders of Note Obligations or Note Liens, nor the Trustee, on the
other hand, shall have any duty to advise the other party of information
regarding such condition or circumstances or, except as otherwise expressly
provided herein, as to any other matter. If any holder of Priority Liens or
Priority Lien Obligations or any Priority Lien Collateral Agent on the one hand,
or the Holders of Note Obligations or Note Liens , on the other hand, in their
respective discretion, undertake at any time or from time to time to provide any
such information to the other party, such first party shall be under no
obligation to provide any similar information on any subsequent occasion, to
provide any additional information, to undertake any investigation, or to
disclose any information which, pursuant to accepted or reasonable commercial
finance practice, it wishes to maintain confidential.
Section 3.9 Limitation on Certain Relief and Defenses.
(a) No action taken or omitted for the benefit of the
holders of Priority Liens by AMERCO or any of its Subsidiaries in breach of any
covenant set forth in the Indenture will constitute a defense to the enforcement
of the provisions of this Article 3 by such holders in
21
accordance with the terms of this Article 3, if, when such action was taken or
omitted, such holders received and in good faith relied on an Officers'
Certificate or Opinion of Counsel to the effect that such action was permitted
under the Indenture. No action taken or omitted for the benefit of the holders
of the Note Liens by AMERCO or any of its Subsidiaries in breach of any covenant
set forth in the Priority Lien Documents will constitute a defense to the
enforcement of the provisions of this Article 3 by such holders in accordance
with the terms of this Article 3, if, when such action was taken or omitted,
such holders received and in good faith relied on an Officers' Certificate of
Opinion of Counsel to the effect that such action was permitted under the
Priority Lien Documents.
(b) The Note Liens will not be forfeited, invalidated,
discharged or otherwise affected or impaired by any breach of any obligation of
the Holders of Notes, the Trustee or the Note Collateral Agent set forth in this
Article 3.
(c) The Priority Liens will not be forfeited,
invalidated, discharged or otherwise affected or impaired by any breach of any
obligation of the Priority Lien Collateral Agent set forth in this Article 3.
Section 3.10 Reinstatement.
(a) If the payment of any amount applied to any Priority
Lien Obligations secured by any Priority Liens is later avoided or rescinded
(including by settlement of any claim for avoidance or rescission) or otherwise
set aside, then:
(1) to the fullest extent lawful, all claims for
the payment of such amount as Priority Lien Obligations and, to the
extent securing such claims, all such Priority Liens will be reinstated
and entitled to the benefits of this Article 3; and
(2) if a Discharge of the Priority Lien
Obligations became effective prior to such reinstatement, the
contractual priority of the Priority Liens so reinstated, as set forth
in Section 3.2, will be concurrently reinstated on the date and to the
extent such Priority Liens are reinstated, beginning on such date, as
though no Priority Lien Obligations or Priority Liens had been
outstanding at any time prior to such date, and will remain effective
until the claims secured by the reinstated Priority Liens are
Discharged;
provided that AMERCO shall deliver forthwith an Officers' Certificate, and/or
the Priority Lien Collateral Agent or any holder of Priority Lien Obligations
may deliver a written notice, to the Note Collateral Agent and the Trustee
stating that Priority Lien Obligations have been reinstated and identifying the
Priority Lien Obligations so reinstated. If this Agreement shall have been
terminated prior to such reinstatement of the Priority Liens, this Agreement
shall be reinstated in full force and effect, and such prior termination shall
not diminish, release, discharge, impair or otherwise affect the obligations of
the parties hereto from such date of reinstatement.
(b) Notwithstanding the foregoing, no:
(1) action to enforce Note Liens at any time
prior to the date of any reinstatement pursuant to Section 3.10(a) (or,
if later, the date on which the Officers'
22
Certificate or written notice referred to in Section 3.10(a) is
delivered to the Trustee and the Note Collateral Agent);
(2) receipt or collection of Collateral or any
other property by the Holders of Notes, the Trustee or the Note
Collateral Agent at any time prior to the date of any such
reinstatement (or, if later, the date on which the Officers'
Certificate or written notice referred to in Section 3.10(a) is
delivered to the Trustee and the Note Collateral Agent);
(3) application of any Collateral or other
property to the payment of Note Obligations at any time prior to the
date of any such reinstatement (or, if later, the date on which the
Officers' Certificate or written notice referred to in Section 3.10(a)
is delivered to the Trustee and the Note Collateral Agent); or
(4) other action taken or omitted by the Holders
of Notes, the Trustee or the Note Collateral Agent or other event
occurring at any time prior to the date of any such reinstatement (or,
if later, the date on which the Officers' Certificate or written notice
referred to in Section 3.10(a) is delivered to the Trustee and the Note
Collateral Agent),
will, if it was permitted at such time under this Article 3 without giving
effect to any subsequent reinstatement under Section 3.10(a), (1) constitute a
breach of any obligation of the Holders of Notes, the Trustee or the Note
Collateral Agent under this Article 3 or (2) subject to Section 3.10(c), give
rise to any right, claim or interest whatsoever enforceable by any holder of
Priority Liens or Priority Lien Obligations or by any other Person.
(c) Notwithstanding any contrary provision in Section 3.4
or this Section 3.10, in the case of clauses (2) and (3) of Section 3.10(b), any
Net Proceeds received by, or on behalf of, the Trustee, the Note Collateral
Agent or any Holder of Notes, prior to the date of reinstatement of the Priority
Lien Obligations, from any receipt, collection or application of, or any other
Enforcement Action of any kind taken against, Collateral less than 91 days after
the date on which the applicable Priority Lien Obligation was paid in full shall
be turned over to the Priority Lien Collateral Agent for application to the
Priority Lien Obligations in accordance with this Agreement; and provided that
the Trustee and the Note Collateral Agent, as applicable, shall not be required
to distribute any such Net Proceeds to any Holder of Notes until such 91st day.
Notwithstanding the foregoing, to the extent any case is commenced by or against
any Grantor under any Bankruptcy Law within 91 days after the date on which the
Priority Lien Obligations are paid in full, such Net Proceeds received prior to
the commencement of the case shall be held by the Trustee or the Note Collateral
Agent until the earlier of (i) the date on which any plan of reorganization or
any similar dispositive restructuring plan in respect of the case is confirmed,
(ii) the date on which the Priority Lien Collateral Agent receives an order from
the bankruptcy court reasonably satisfactory to it stating that the Discharge of
the Priority Lien Obligations shall not be avoided or rescinded, (iii) the date
on which any of the Priority Lien Obligations are avoided or rescinded, in which
case such Net Proceeds shall be turned over to the Priority Lien Collateral
Agent for application to the Priority Lien Obligations in accordance with this
Agreement (to the extent not prohibited by the bankruptcy court) or (iv) the
entry of an order of the bankruptcy court directing the application of such Net
Proceeds. In the event that any such
23
Net Proceeds are turned over to the Priority Lien Collateral Agent, the Note
Debt and Note Liens shall be thereupon reinstated to the extent of the amount of
the Net Proceeds turned over to the Priority Lien Collateral Agent.
Section 3.11 Amendment: Waiver.
(a) No amendment or supplement to the provisions of this
Article 3 will:
(1) be effective unless set forth in a writing
signed by the Trustee and the Note Collateral Agent with the consent of
the Holders of at least a majority in principal amount at maturity of
the Notes; and
(2) become effective at any time any Priority
Lien Obligations exist that have not been Discharged unless such
amendment or supplement is consented to in a writing signed by the
Priority Lien Collateral Agent acting upon the direction or with the
consent of the holders of the applicable percentage (as required under
the Loan Agreement or the Replacement Loan Agreement) in principal
amount of all Priority Lien Debt then outstanding or committed under
the Loan Agreement or the Replacement Loan Agreement, voting as a
single class.
Any such amendment or supplement that imposes any obligation
upon the Note Collateral Agent or adversely affects the rights of the Note
Collateral Agent in its individual capacity at any time when the Trustee is not
the Note Collateral Agent will become effective only with the consent of the
Note Collateral Agent.
(b) No waiver of any of the provisions of this Article 3
will in any event be effective unless set forth in a writing signed and
consented to, as required for an amendment under this Section 3.11, by the party
to be bound thereby.
Section 3.12 Enforcement.
(a) Except as otherwise set forth in this Section 3.12,
the provisions of this Article 3 are intended for the sole benefit of, and may
be enforced solely by, the holders of Priority Liens and Priority Lien
Obligations granted and outstanding from time to time; provided, however, that:
(1) the definition of "Priority Lien Debt" is
intended for the benefit of both the holders of Priority Liens and
Priority Lien Obligations granted and outstanding from time to time and
AMERCO; and
(2) the provisions of Section 3.16 are intended
for the sole benefit of, and may be enforced solely by, the Holders of
Note Liens and Note Obligations granted and outstanding from time to
time (or by the Note Collateral Agent on their behalf).
(b) The rights of the Holders of Notes and the Note
Collateral Agent set forth in Sections 3.3, 3.5 and 3.10 are intended for the
sole benefit of the Holders of Notes and the Note Collateral Agent and may be
enforced only by the Holders of Notes or by the Note Collateral Agent.
24
(c) The obligations of the Holders of Notes, the Trustee
and the Note Collateral Agent set forth in Sections 3.3, 3.4, 3.5, 3.6, 3.7,
3.8, 3.9 and 3.10:
(1) are intended for the sole benefit of the
holders of Priority Lien Obligations and may be enforced only by the
holders of Priority Lien Obligations or by the Priority Lien Collateral
Agent; and
(2) will terminate, unconditionally and (subject
only to Section 3.10) forever, upon either of (a) Discharge of the
Priority Lien Obligations or (b) the release of the Note Liens in whole
as provided under Section 11.04 of the Indenture.
(d) No right to enforce the ranking agreements or any
other obligation set forth in this Article 3 may be impaired by any act or
failure to act by AMERCO, the Trustee or any Holder of Notes or by the failure
of AMERCO, the Trustee or any Holder of Notes to comply with this Agreement.
(e) The obligations of the holders of Priority Lien Debt
and the Priority Lien Collateral Agent and the Holders of Notes, the Trustee and
the Note Collateral Agent under this Article 3 are continuing obligations that
may be terminated only by an amendment that becomes effective as set forth in
Section 3.11.
(f) Except for the Persons identified in this Section
3.12, to the extent and as to the obligations set forth in this Section 3.12, no
other Person will be entitled to rely on, have the benefit of or be entitled to
enforce the lien ranking agreements or any other obligation set forth in this
Article 3.
Section 3.13 Notes, Note Guarantees and Other Note Obligations Not
Subordinated. The provisions of this Article 3 are intended solely to set forth
the relative ranking, as Liens, of the Note Liens as against the Priority Liens.
Neither the Notes, the Note Guarantees and other Note Obligations nor, except as
otherwise provided in this Article 3, the exercise or enforcement of any right
or remedy for the payment or collection thereof (other than the restrictions
with respect to the enforcement of remedies against the Collateral as set forth
in this Article 3) are intended to be, or will ever be by reason of the
provisions of this Article 3, in any respect subordinated, deferred, postponed,
restricted or prejudiced.
Section 3.14 Relative Rights. This Article 3 defines the relative
rights, as lienholders, of Holders of Note Liens and holders of Priority Liens.
Nothing in this Agreement will:
(1) impair, as between AMERCO and Holders of
Notes, the obligation of AMERCO, which is absolute and unconditional,
to pay principal of, premium and interest, if any, on the Notes in
accordance with their terms or to perform any other obligation of
AMERCO or any other Grantor under the Note Documents;
(2) affect the relative rights of Holders of
Notes and creditors of any Grantor (other than holders of Priority
Liens);
(3) restrict the right of any Holder of Notes to
xxx for payments that are then due and owing (but not enforce any
judgment in respect thereof against any
25
Collateral other than the enforcement of any judgment in respect of any
other action not specifically prohibited by Sections 3.3 or 3.5);
(4) prevent the Trustee, the Note Collateral
Agent or any Holder of Notes from exercising against any Grantor any of
its other available remedies upon a Note Event of Default not
specifically prohibited by Sections 3.3 or 3.5; or
(5) restrict the right of the Trustee, the Note
Collateral Agent or any Holder of Notes from taking any lawful action
in an Insolvency or Liquidation Proceeding not specifically prohibited
by Sections 3.3 or 3.5.
If any Grantor fails because of this Article 3 to perform any
obligation binding upon it under any Note Document, the failure is still a Note
Event of Default.
Section 3.15 Bailee for Perfection.
(a) The Priority Lien Collateral Agent shall hold the
Pledged Collateral in its possession or control (or in the possession or control
of its agents or bailees) as bailee for the Note Collateral Agent solely for the
purpose of perfecting the security interest granted in such Pledged Collateral
pursuant to the Note Security Documents, subject to the terms and conditions of
this Agreement; provided that, solely for purposes of perfecting Liens in cash
collateral accounts, deposit accounts, electronic chattel paper and letter of
credit rights included in the Collateral, the Priority Lien Collateral Agent
agrees to act as agent for the Note Collateral Agent. The Priority Lien
Collateral Agent and Note Collateral Agent agree that if the Priority Lien
Collateral Agent shall enter into a control agreement with respect to any
security account or deposit account, the Note Collateral Agent will be given
notice by the Company and may also become a party thereto in order to perfect
its security interest in such accounts. If and to the extent such control
agreements provide for the right of either the Priority Lien Collateral Agent or
the Note Collateral Agent to give notice or direction to the depository or
intermediary, as applicable, with respect to such accounts, the Note Collateral
Agent hereby agrees that it will not give any such notice or direction to any
such depository or intermediary unless and until all Priority Lien Obligations
have been Discharged. Borrowers and the Note Collateral Agent agree to exercise
reasonable efforts to name or otherwise establish the Note Collateral Agent as
secondary collateral agent with respect to Collateral upon which Liens are
perfected by means other than notice. The Priority Lien Collateral Agent agrees
to reasonably cooperate with any specific requests made by Borrowers in the
event that the consent of the Priority Lien Collateral Agent may be required in
connection therewith.
(b) So long as any Priority Lien Obligations exist that
have not been Discharged, the Priority Lien Collateral Agent shall be entitled
to deal with the Pledged Collateral in accordance with the terms of the Priority
Lien Documents and this Agreement.
(c) The Priority Lien Collateral Agent shall not have any
obligation whatsoever to Note Collateral Agent, the Trustee or the Holders of
any Notes or other Note Lien Obligations to assure that the Pledged Collateral
is genuine or owned by any Grantor or otherwise or to preserve rights or
benefits of any Person except as expressly set forth in this Section 3.15. The
duties or responsibilities of the Priority Lien Collateral Agent under this
26
Section 3.15 shall be limited solely to holding the Pledged Collateral as bailee
for the Note Collateral Agent for purposes of perfecting the Lien therein held
by the Note Collateral Agent to secure Note Obligations. The Priority Lien
Collateral Agent shall not have any obligation to the Note Collateral Agent, the
Trustee or any Holder of Note Debt to care for, protect or insure any Pledged
Collateral or to ensure that the Lien on such Pledged Collateral has been
properly or sufficiently created or entitled to any particular priority.
(d) The Priority Lien Collateral Agent shall not have, by
reason of the Note Security Documents, the Note Documents, this Agreement or any
other document or instrument, a fiduciary relationship in respect of the Note
Collateral Agent, the Trustee or the Holders of Notes or any other Note
Obligations. Neither the Note Collateral Agent nor the Trustee shall have, by
reason of the Priority Lien Documents or this Agreement or any other document or
instrument, a fiduciary relationship in respect of the Priority Lien Collateral
Agent or the Lenders.
Section 3.16 Delivery of Collateral and Proceeds of Collateral. If all
Priority Lien Obligations have been Discharged, the Priority Lien Collateral
Agent shall, to the extent permitted by applicable law, deliver to (1) the Note
Collateral Agent (if Note Liens and Note Lien Obligations then remain
outstanding), or (2) such other Person as a court of competent jurisdiction may
otherwise direct, (a) any Collateral held by, or on behalf of, the Priority Lien
Collateral Agent or any holder of Priority Lien Obligations, and (b) all
proceeds of Collateral held by, or on behalf of, the Priority Lien Collateral
Agent or any holder of Priority Lien Obligations, whether arising out of an
action taken to enforce, collect or realize upon any Collateral or otherwise.
Such Collateral and such proceeds shall be delivered without recourse and
without any representation or warranty whatsoever as to the enforceability,
perfection, priority or sufficiency of any Lien securing or guaranty or other
supporting obligation for any Priority Lien Debt or Priority Lien Obligations,
together with any necessary endorsements or as a court of competent jurisdiction
may otherwise direct.
Section 3.17 Termination of Agreement. Except and to the extent
provided in Section 3.10 hereof, this Agreement shall terminate automatically
and be of no further force or effect upon the earlier to occur of (i) release of
all Priority Liens or (ii) all Priority Lien Obligations have been Discharged.
In that event, and at such time that the Note Obligations are still outstanding
and the Note Security Documents are in effect, the Priority Lien Collateral
Agent shall (and AMERCO and its Subsidiaries so consent and agree) (a) turn over
any remaining cash of the Borrowers in excess of the Priority Lien Debt to the
Note Collateral Agent, (b) if at such time the Priority Lien Collateral Agent
continues to hold any certificates representing shares of stock, instruments or
chattel paper included in the Collateral or to hold any other Collateral, the
Priority Lien Collateral Agent shall turn over such certificates, instruments
and chattel paper and such other Collateral to the Note Collateral Agent to be
held by it under the Note Security Documents, and (c) the Priority Lien
Collateral Agent shall cooperate, in such reasonable respects as are requested
by the Note Collateral Agent, with the Note Collateral Agent and AMERCO to
substitute the Note Collateral Agent for the Priority Lien Collateral Agent with
respect to each account control agreement with respect to deposit accounts that
constitute Collateral. In no event shall the Note Collateral Agent have any
liability for the acts or omissions of the Priority Lien Collateral Agent, nor
shall the Priority Lien Collateral Agent have any liability for the acts or
omissions of the Note Collateral Agent.
27
ARTICLE 4.
MISCELLANEOUS
Section 4.1 Amendments, Modifications, and Waivers; Cumulative
Remedies. No amendment, modification or waiver of any provision of this
Agreement shall be effective unless the same shall be in writing and signed by
each of the parties hereto, and then such amendment, modification or waiver
shall be effective only in the specific instance and for the specific purpose
for which it is given. No failure to exercise, nor any delay in exercising, on
the part of any party of, any right, power or privilege hereunder shall operate
as a waiver thereof. No single or partial exercise of any right, power or
privilege hereunder shall preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies
provided herein are cumulative, may be exercised singly or concurrently and are
not exclusive of any other rights or remedies provided by law.
Section 4.2 Indenture References. Notwithstanding anything to the
contrary in this Agreement, any references contained herein to any Section,
clause, paragraph, definition or other provision of the Indenture (including any
definition contained therein) shall be deemed to be a reference to such Section,
clause, paragraph, definition or other provision as in effect on the date of
this Agreement; provided that any reference to any such Section, clause,
paragraph or other provision shall refer to such Section, clause, paragraph or
other provision of the Indenture (including any definition contained therein) as
amended or modified from time to time if such amendment or modification has been
(1) made in accordance with the Indenture and (2) at any time any Priority Lien
Obligations exist that have not been Discharged, approved in a writing delivered
to the Trustee and the Note Collateral Agent by, or on behalf of, the requisite
holders of Priority Lien Obligations as are needed under the terms of the
applicable Priority Lien Documents to approve such amendment or modification.
Section 4.3 Successors and Assigns. The provisions of this Agreement
shall be binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns, including, without limitation, any person or
entity that succeeds to the role of the Note Collateral Agent or the Priority
Lien Collateral Agent.
Section 4.4 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
telecopy), and, unless otherwise expressly provided herein, shall be deemed to
have been duly given or made when received, or, in the case of telecopy notice,
when received and confirmed by telephone, addressed as follows:
If to the Note Collateral Agent or the Trustee:
Xxxxx Fargo Bank, N.A.
Corporate Trust Services
Sixth & Marquette; X0000-000
Xxxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx, Assistant Vice President
Facsimile: 000-000-0000
28
If to the Loan Agreement Agent:
Xxxxx Fargo Foothill, Inc.
0000 Xxxxxxxx Xxxxxx
Xxxxx 0000X
Xxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Specialty Finance Division Manager
Telecopier No. 310.453.7444
With copies to:
Xxxxx X. Xxxxx, Esq.
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
000 Xxxxxxxxx Xxxxxx, X.X. Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Any party may hereafter notify the other parties hereto of a
change in its notice address.
Section 4.5 Counterparts. This Agreement may be executed in one or more
duplicate counterparts and when signed by all of the parties listed below shall
constitute a single binding agreement.
Section 4.6 Governing Law; Consent to Jurisdiction and Venue. THIS
AGREEMENT AND THE OBLIGATIONS ARISING HEREUNDER SHALL BE GOVERNED BY, AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
APPLICABLE TO CONTRACTS MADE AND PERFORMED IN SUCH STATE, AND ANY APPLICABLE
LAWS OF THE UNITED STATES OF AMERICA. EACH OF THE PARTIES HERETO HEREBY CONSENTS
AND AGREES THAT THE STATE OR FEDERAL COURTS LOCATED IN NEW YORK CITY SHALL HAVE
NON-EXCLUSIVE JURISDICTION TO HEAR AND DETERMINE ANY CLAIMS OR DISPUTES AMONG
THE PARTIES HERETO PERTAINING TO THIS AGREEMENT OR TO ANY MATTER ARISING OUT OF
OR RELATING TO THIS AGREEMENT, PROVIDED THAT THE PARTIES HERETO ACKNOWLEDGE THAT
ANY APPEALS FROM THOSE COURTS MAY HAVE TO BE HEARD BY A COURT LOCATED OUTSIDE OF
NEW YORK CITY AND, PROVIDED. FURTHER, THAT NOTHING IN THIS AGREEMENT SHALL BE
DEEMED OR OPERATE TO PRECLUDE THE PRIORITY LIEN COLLATERAL AGENT FROM BRINGING
SUIT OR TAKING OTHER LEGAL ACTION IN ANY OTHER JURISDICTION TO REALIZE ON ANY
SECURITY FOR THE PRIORITY LIEN OBLIGATIONS, OR TO ENFORCE A JUDGMENT OR OTHER
COURT ORDER IN FAVOR OF SUCH PRIORITY LIEN COLLATERAL AGENT. EACH OF THE PARTIES
HERETO EXPRESSLY SUBMITS AND CONSENTS IN ADVANCE TO SUCH JURISDICTION IN ANY
ACTION OR SUIT COMMENCED IN ANY SUCH COURT, AND EACH OF THE PARTIES HERETO
HEREBY WAIVES ANY OBJECTION WHICH IT MAY
29
HAVE BASED UPON LACK OF PERSONAL JURISDICTION, IMPROPER VENUE OR FORUM NON
CONVENIENS. EACH OF THE PARTIES HERETO HEREBY WAIVES PERSONAL SERVICE OF THE
SUMMONS, COMPLAINT AND OTHER PROCESS ISSUED IN ANY SUCH ACTION OR SUIT AND
AGREES THAT SERVICE OF SUCH SUMMONS, COMPLAINT AND OTHER PROCESS MAY BE MADE BY
REGISTERED OR CERTIFIED MAIL ADDRESSED TO IT AT THE ADDRESS SET FORTH HEREIN,
AND THAT SERVICE SO MADE SHALL BE DEEMED COMPLETED UPON THE EARLIER OF SUCH
PARTY'S ACTUAL RECEIPT THEREOF OR THREE (3) DAYS AFTER DEPOSIT IN THE U.S.
MAILS, PROPER POSTAGE PREPAID.
Section 4.7 Mutual Waiver of Jury Trial. BECAUSE DISPUTES ARISING IN
CONNECTION WITH COMPLEX FINANCIAL TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY
RESOLVED BY AN EXPERIENCED AND EXPERT PERSON AND THE PARTIES WISH APPLICABLE
STATE AND FEDERAL LAWS TO APPLY (RATHER THAN ARBITRATION RULES), THE PARTIES
DESIRE THAT THEIR DISPUTES BE RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS.
THEREFORE, TO ACHIEVE THE BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL
SYSTEM AND OF ARBITRATION, THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY
IN ANY ACTION, SUIT, OR PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER
SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN THE PARTIES ARISING OUT OF,
CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THEM IN CONNECTION WITH, THIS AGREEMENT OR THE TRANSACTIONS RELATED
THERETO.
Section 4.8 Specific Performance. In addition to the provisions of
Section 3.16, the parties hereto agree that irreparable damage would occur, and
that monetary damages would not be a sufficient remedy, in the event that any of
the provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached (or threatened to be breached). Each
of the parties shall be entitled to, and no other party hereto shall, directly
or indirectly, oppose or otherwise contest any motion or other legal action
brought to:
(1) obtain, an injunction or injunctions or
other equitable relief as a remedy to prevent breaches (or threatened
breaches) of this Agreement; and
(2) enforce specifically the terms and
provisions of this Agreement in any court of the United States or any
state having jurisdiction, without proof of actual damages or a
requirement that bond be posted.
The remedies described in this Agreement are in addition to
any other remedy to which any of the parties is entitled at law or in equity or
otherwise.
Section 4.9 Entire Agreement. This Agreement integrates all the terms
and conditions mentioned herein or incidental hereto and supersedes all oral
negotiations and prior writings in respect to the subject matter hereof. In the
event of any conflict between the terms, conditions and provisions of this
Agreement and any such agreement, document or instrument, the terms, conditions
and provisions of this Agreement shall prevail.
30
Section 4.10 Severability. In case any one or more of the provisions
contained or incorporated by reference in this Agreement should be invalid,
illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby, and the parties hereto shall enter into good faith
negotiations to replace the invalid, illegal or unenforceable provision with a
view to obtaining the same commercial effect as this Agreement would have had if
such provision had been legal, valid and enforceable.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
31
IN WITNESS WHEREOF, the parties hereto have caused this
Intercreditor Agreement to be executed by their respective officers or
representatives hereunto duly authorized as of the day and year first above
written.
XXXXX FARGO FOOTHILL, INC.
as Loan Agreement Agent
By: /s/ Xxxxxx Xxxxx
--------------------------------
Name: Xxxxxx Xxxxx
---------------------------
Title: SVP
XXXXX FARGO BANK, N.A., as Note Collateral
Agent and Trustee
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxx
----------------------------
Title: Assistant Vice President
---------------------------
INTERCREDITOR AGREEMENT
CONSENT AND AGREEMENT
The undersigned are not party to, nor beneficiary of, the
Intercreditor Agreement. Each of the undersigned hereby acknowledges receipt of
a copy of the foregoing Intercreditor Agreement as of the date thereof and
further acknowledges the terms and provisions thereof and agrees not to take any
action which is inconsistent with, or to contest or challenge the validity of,
any term or provision thereof, and agrees that its successors and assigns shall
be bound by the foregoing.
AMERCO REAL ESTATE COMPANY, a
Nevada Corporation
AMERCO REAL ESTATE COMPANY OF
ALABAMA, INC., an Alabama Corporation
AMERCO REAL ESTATE COMPANY OF
TEXAS, INC., a Texas Corporation
AMERCO REAL ESTATE SERVICES, INC.,
a Nevada Corporation
ONE PAC COMPANY, a Nevada Corporation
TWO PAC COMPANY, a Nevada Corporation
THREE PAC COMPANY, a Nevada Corporation
FOUR PAC COMPANY, a Nevada Corporation
FIVE PAC COMPANY, a Nevada Corporation
SIX PAC COMPANY, a Nevada Corporation
SEVEN PAC COMPANY, a Nevada Corporation
EIGHT PAC COMPANY, a Nevada Corporation
NINE PAC COMPANY, a Nevada Corporation
TEN PAC COMPANY, a Nevada Corporation
ELEVEN PAC COMPANY, a Nevada Corporation
TWELVE PAC COMPANY, a Nevada Corporation
FOURTEEN PAC COMPANY, a Nevada Corporation
FIFTEEN PAC COMPANY, a Nevada Corporation
SIXTEEN PAC COMPANY, a Nevada Corporation
SEVENTEEN PAC COMPANY, a Nevada Corporation
INTERCREDITOR AGREEMENT
NATIONWIDE COMMERCIAL CO., an
Arizona corporation
YONKERS PROPERTY CORPORATION, a
New York corporation
PF & F HOLDINGS CORPORATION, a
Delaware corporation
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxx, President
INTERCREDITOR AGREEMENT
EMOVE, INC., a Nevada corporation
WEB TEAM ASSOCIATES, INC., a Nevada
corporation
By: /s/ Xxxxxx Xxxxxxxx
---------------------------------------
Xxxxxx Xxxxxxxx, Secretary
INTERCREDITOR AGREEMENT
U-HAUL INSPECTIONS, LTD., a British
Columbia corporation
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------------
Xxxxxxxx Xxxxxx, Secretary
INTERCREDITOR AGREEMENT
AMERCO, a Nevada corporation
U-HAUL INTERNATIONAL, INC., a Nevada
corporation
A & M ASSOCIATES, INC., an Arizona
corporation
U-HAUL SELF-STORAGE CORPORATION, a
Nevada corporation
U-HAUL SELF-STORAGE MANAGEMENT
(WPC), INC., a Nevada corporation
U-HAUL BUSINESS CONSULTANTS, INC.,
an Arizona corporation
U-HAUL LEASING & SALES CO., a Nevada
corporation
U-HAUL CO. OF ALASKA, an Alaska
corporation
U-HAUL CO. OF ALABAMA, INC., an
Alabama corporation
U-HAUL CO. OF ARKANSAS, a Arkansas
corporation
U-HAUL CO. OF ARIZONA, an Arizona
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 OF HAWAII, INC., a Hawaii
corporation
U-HAUL CO. OF IDAHO, INC., an Idaho
corporation
INTERCREDITOR AGREEMENT
U-HAUL CO. OF IOWA, INC., an Iowa
corporation
U-HAUL CO. OF ILLINOIS, INC., an Illinois
corporation
U-HAUL CO. OF INDIANA, INC., an Indiana
corporation
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 MASSACHUSETTS AND
OHIO, INC., a Massachusetts corporation
U-HAUL CO. OF MARYLAND, INC., a
Maryland corporation
U-HAUL CO. OF MAINE, INC., a Maine
corporation
U-HAUL CO. OF MICHIGAN, a Michigan
corporation
U-HAUL CO. OF MINNESOTA, a
Minnesota corporation
U-HAUL COMPANY OF MISSOURI, a
Missouri corporation
U-HAUL CO. OF MISSISSIPPI, a Mississippi
corporation
U-HAUL CO. OF MONTANA, INC., a
Montana corporation
U-HAUL CO. OF NORTH CAROLINA, a
North Carolina corporation
U-HAUL CO. OF NORTH DAKOTA, a North
Dakota 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
INTERCREDITOR AGREEMENT
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
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 WISCONSIN, INC., a
Wisconsin corporation
U-HAUL CO. OF WEST VIRGINIA, a West
Virginia corporation
U-HAUL CO. OF WYOMING, INC., a Wyoming
corporation
U-HAUL CO. (CANADA) LTD. U-HAUL CO.
(CANADA) LTEE, an Ontario corporation
By: /s/ Xxxx X. Xxxxxxxxxxx
-----------------------------------
Xxxx X. Xxxxxxxxxxx, Secretary
INTERCREDITOR AGREEMENT
