EXECUTION COPY
AMERCO
AND THE GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO
9.0% SECOND LIEN SENIOR SECURED NOTES DUE 2009
---------------------------
INDENTURE
Dated as of March 1, 2004
---------------------------
XXXXX FARGO BANK, N.A.,
as Trustee
CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- --------------
310(a)(1)................................................... 7.10
(a)(2)................................................... 7.10
(a)(3)................................................... 7.12
(a)(4)................................................... N.A.
(a)(5)................................................... 7.10
(b)...................................................... 7.03; 7.10
(c)...................................................... N.A.
311(a)...................................................... 7.11
(b)...................................................... 7.11
(c)...................................................... N.A.
312(a)...................................................... 2.05
(b)...................................................... 13.03
(c)...................................................... 13.03
313(a)...................................................... 7.06
(b)(2)................................................... 7.06; 7.07
(c)...................................................... 7.06; 13.02
(d)...................................................... 7.06
314(a)...................................................... 4.03
314(a)(4)................................................... 13.05
(c)(1)................................................... 13.04
(c)(2)................................................... 13.04
(c)(3)................................................... N.A.
(e)...................................................... 13.05
(f)...................................................... N.A.
315(a)...................................................... 7.01
(b)...................................................... 7.05;13.02
(c)...................................................... 7.01
(d)...................................................... 7.01
(e)...................................................... 6.11
316(a) (last sentence)...................................... 2.09
(a)(1)(A)................................................ 6.05
(a)(1)(B)................................................ 6.04
(a)(2)................................................... N.A.
(b)...................................................... 6.06; 6.07
(c)...................................................... 2.12
317(a)(1)................................................... 6.08
(a)(2)................................................... 6.09
(b)...................................................... 2.04
318(a)...................................................... 13.01
(b)...................................................... N.A.
(c)...................................................... 13.01
N.A means Not Applicable
Note: This Cross-Reference Table is not part of this Agreement.
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE.............................. 1
1.01 Definitions................................................................ 1
1.02 Other Definitions.......................................................... 30
1.03 Incorporation by Reference of Trust Indenture Act.......................... 31
1.04 Accounting Terms; GAAP..................................................... 31
1.05 Code....................................................................... 32
1.06 Construction............................................................... 32
1.07 Schedules and Exhibits..................................................... 32
ARTICLE II THE NOTES............................................................... 32
2.01 Form and Dating............................................................ 32
2.02 Execution and Authentication............................................... 33
2.03 Registrar and Paying Agent................................................. 34
2.04 Paying Agent to Hold Money in Trust........................................ 34
2.05 Holder Lists............................................................... 34
2.06 Transfer and Exchange...................................................... 34
2.07 Replacement Notes.......................................................... 43
2.08 Outstanding Notes.......................................................... 43
2.09 Treasury Notes............................................................. 43
2.10 Temporary Notes............................................................ 44
2.11 Cancellation............................................................... 44
2.12 Defaulted Interest......................................................... 44
2.13 CUSIP Numbers.............................................................. 44
2.14 Deposit of Moneys.......................................................... 45
ARTICLE III REDEMPTION AND PREPAYMENT............................................... 45
3.01 Notices to the Trustee..................................................... 45
3.02 Selection of Notes to Be Redeemed.......................................... 45
3.03 Notice of Redemption....................................................... 46
3.04 Effect of Notice of Redemption............................................. 46
3.05 Deposit of Redemption Price................................................ 47
3.06 Notes Redeemed in Part..................................................... 47
3.07 Optional Redemption........................................................ 47
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(continued)
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3.08 Mandatory Redemption....................................................... 48
ARTICLE IV AFFIRMATIVE COVENANTS................................................... 48
4.01 Payment of Notes........................................................... 48
4.02 Maintenance of Office or Agency............................................ 48
4.03 Accounting System.......................................................... 49
4.04 Financial Statements, Reports, Certificates................................ 49
4.05 Guarantor Reports.......................................................... 52
4.06 Maintenance of Properties.................................................. 53
4.07 Taxes...................................................................... 53
4.08 Insurance.................................................................. 53
4.09 Location of Equipment...................................................... 54
4.10 Compliance with Laws....................................................... 55
4.11 Leases..................................................................... 55
4.12 Existence.................................................................. 55
4.13 Environmental.............................................................. 55
4.14 Real Estate................................................................ 56
4.15 Reorganization Plan........................................................ 56
4.16 Vehicles................................................................... 56
4.17 Cash Management and Asset Preservation Agreements.......................... 57
4.18 Credit Card Agreements..................................................... 58
4.19 Disclosure Updates......................................................... 58
4.20 Material Contracts; Affiliate Contracts.................................... 58
4.21 Employee Benefits.......................................................... 58
ARTICLE V NEGATIVE COVENANTS...................................................... 59
5.01 Indebtedness, Etc.......................................................... 59
5.02 Liens...................................................................... 61
5.03 Restrictions on Fundamental Changes........................................ 61
5.04 Disposal of Assets......................................................... 62
5.05 Change Name................................................................ 62
5.06 Guarantee.................................................................. 62
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TABLE OF CONTENTS
(continued)
PAGE
5.07 Nature of Business......................................................... 63
5.08 Prepayments and Amendments................................................. 63
5.09 Change of Control.......................................................... 64
5.10 Ownership of Certain Assets................................................ 64
5.11 Distributions.............................................................. 64
5.12 Accounting Methods......................................................... 65
5.13 Formation of Subsidiaries; Investments..................................... 65
5.14 Transactions with Affiliates............................................... 66
5.15 Suspension................................................................. 67
5.16 Use of Proceeds............................................................ 67
5.17 Change in Location of Chief Executive Office; Equipment with Bailees....... 67
5.18 Securities Accounts........................................................ 67
5.19 Financial Covenants........................................................ 67
5.20 Employee Benefits.......................................................... 69
5.21 Sales and Leasebacks....................................................... 70
5.22 Anti-Terrorism Laws........................................................ 70
5.23 Speculative Transactions................................................... 70
5.24 Amendment to Certain Agreements............................................ 70
5.25 Waiver of Stay, Extension or Usury Laws.................................... 71
ARTICLE VI DEFAULTS AND REMEDIES................................................... 71
6.01 Events of Default.......................................................... 71
6.02 Acceleration............................................................... 73
6.03 Other Remedies............................................................. 74
6.04 Waiver of Past Defaults.................................................... 74
6.05 Control by Majority........................................................ 74
6.06 Limitation on Suits........................................................ 75
6.07 Rights of Holders of Notes to Receive Payment.............................. 75
6.08 Collection Suit by the Trustee............................................. 75
6.09 The Trustee May File Proofs of Claim....................................... 76
6.10 Priorities................................................................. 76
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TABLE OF CONTENTS
(continued)
PAGE
6.11 Undertaking for Costs...................................................... 77
6.12 The Trustee May Enforce Claims Without Possession of Notes................. 77
6.13 Restoration of Rights and Remedies......................................... 77
6.14 Rights and Remedies Cumulative............................................. 77
6.15 Delay or Omission Not Waiver............................................... 78
ARTICLE VII TRUSTEE................................................................. 78
7.01 Duties of the Trustee...................................................... 78
7.02 Rights of the Trustee...................................................... 79
7.03 Individual Rights of the Trustee........................................... 81
7.04 The Trustee's Disclaimer................................................... 81
7.05 Notice of Defaults......................................................... 81
7.06 Reports by the Trustee to Holders of the Notes............................. 82
7.07 Compensation and Indemnity................................................. 82
7.08 Replacement of the Trustee................................................. 83
7.09 Successor Trustee by Xxxxxx, etc........................................... 85
7.10 Eligibility; Disqualification.............................................. 85
7.11 Preferential Collection of Claims Against Company.......................... 85
7.12 Additional Co-Collateral Trustees; Separate Collateral Trustees............ 85
7.13 Expenses................................................................... 87
ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE................................ 88
8.01 Option to Effect Legal Defeasance or Covenant Defeasance................... 88
8.02 Legal Defeasance and Discharge............................................. 88
8.03 Covenant Defeasance........................................................ 88
8.04 Conditions to Legal or Covenant Defeasance................................. 89
8.05 Deposited Money and U.S. Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions............................................. 90
8.06 Repayment to Company....................................................... 91
8.07 Reinstatement.............................................................. 91
ARTICLE IX AMENDMENT, SUPPLEMENT AND WAIVER........................................ 92
9.01 Without Consent of Holders of Notes........................................ 92
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TABLE OF CONTENTS
(continued)
PAGE
9.02 With Consent of Holders of Notes........................................... 92
9.03 Compliance with Trust Indenture Act........................................ 94
9.04 Revocation and Effect of Consents.......................................... 94
9.05 Notation on or Exchange of Notes........................................... 94
9.06 The Trustee to Sign Amendments, etc........................................ 95
9.07 Effect of Amendment of, Refinancing of or Termination of New Credit
Agreement.................................................................. 95
9.08 WP Xxxxx Transaction....................................................... 99
ARTICLE X NOTE GUARANTEES......................................................... 99
10.01 Guarantee.................................................................. 99
10.02 Limitation on Guarantor Liability.......................................... 102
10.03 Execution and Delivery of Note Guarantee................................... 103
10.04 Guarantors May Consolidate, etc., on Certain Terms......................... 103
10.05 Rights under the Note Guarantees........................................... 103
10.06 Primary Obligations........................................................ 104
10.07 Waiver of Subrogation and Contribution..................................... 104
10.08 Cumulative Remedies........................................................ 104
10.09 Successors and Assigns..................................................... 105
10.10 Guarantee by Future Subsidiaries........................................... 105
ARTICLE XI COLLATERAL.............................................................. 105
11.01 Delivery of Security Documents............................................. 105
11.02 Recording and Opinions..................................................... 108
11.03 Possession and Use of Collateral........................................... 108
11.04 Release and Disposition of Collateral...................................... 109
11.05 Intercreditor Agreement.................................................... 112
11.06 Grant of Security Interest................................................. 112
11.07 Negotiable Collateral and Chattel Paper.................................... 112
11.08 Collection of Accounts, General Intangibles, and Negotiable Collateral..... 113
11.09 Delivery of Additional Documentation Required.............................. 113
11.10 Power of Attorney.......................................................... 114
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(continued)
PAGE
11.11 Control Agreements......................................................... 114
11.12 Commercial Tort Claims..................................................... 114
11.13 Grants, Rights and Remedies................................................ 115
11.14 Survival................................................................... 117
11.15 Authorization of Actions to be Taken by the Trustee Under the Collateral
Documents.................................................................. 118
11.16 Quebec Security............................................................ 118
11.17 Right to Inspect........................................................... 119
ARTICLE XII SATISFACTION AND DISCHARGE.............................................. 120
12.01 Satisfaction and Discharge................................................. 120
12.02 Application of Trust Money................................................. 120
ARTICLE XIII MISCELLANEOUS........................................................... 121
13.01 Trust Indenture Act Controls............................................... 121
13.02 Notices.................................................................... 121
13.03 Communication by Holders of Notes with Other Holders of Notes.............. 122
13.04 Certificate and Opinion as to Conditions Precedent......................... 123
13.05 Statements Required in Certificate or Opinion.............................. 123
13.06 Rules by the Trustee and Agents............................................ 123
13.07 No Personal Liability of Directors, Officers, Employees and Stockholders... 123
13.08 Confidentiality............................................................ 124
13.09 Governing Law.............................................................. 124
13.10 No Adverse Interpretation of Other Agreements.............................. 125
13.11 Successors................................................................. 125
13.12 Severability............................................................... 125
13.13 Counterpart Originals...................................................... 125
13.14 Table of Contents, Headings, etc........................................... 125
13.15 Supremacy of this Agreement................................................ 126
13.16 Further Assurances......................................................... 126
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EXHIBITS
Exhibit A FORM OF CLASS A NOTE
Exhibit B FORM OF CLASS B NOTE
Exhibit C FORM OF NOTE GUARANTEE
Exhibit D FORM OF SUPPLEMENTAL INDENTURE
vii
INDENTURE dated as of March 1, 2004 (this "Agreement") by and among
AMERCO, a Nevada corporation (the "Company"), the guarantors listed on the
signature pages hereto (collectively, the "Guarantors") and XXXXX FARGO BANK,
N.A., as trustee and collateral trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
1.01 Definitions.
"Account Debtor" means any Person who is or who may become obligated
under, with respect to, or on account of, an Account, Chattel Paper, or a
General Intangible.
"Accounts" means any Person's now owned or hereafter acquired right,
title, and interest with respect to "accounts" as such term is defined in the
Code, and any and all Supporting Obligations in respect thereof.
"Additional Interest" has the meaning set forth in the Registration
Rights Agreement and/or any additional interest provided for herein or in the
Note Documents, including without limitation, the interest set forth in Section
11.01(e) hereof.
"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; provided, however, that, for purposes of Section 5.14 hereof: (a) any
Person which owns directly or indirectly 10% or more of the securities having
ordinary voting power for the election of directors or other members of the
governing body of a Person or 10% or more of the partnership or other ownership
interests of a Person (other than as a limited partner of such Person) shall be
deemed to control such Person, (b) each director (or comparable manager) of a
Person shall be deemed to be an Affiliate of such Person, and (c) each
partnership or joint venture in which a Person is a partner or joint venturer
shall be deemed to be an Affiliate of such Person. For the avoidance of doubt,
SAC Holding shall not be deemed to be an Affiliate of the Borrowers for purposes
of this Agreement.
"Affiliate Contracts" means any agreement to which any Note Party is a
party, on the one hand, and any Affiliate of such Note Party is a party, on the
other hand, as such agreements are in place as of the Issue Date.
"Agency Letter" means that certain letter agreement executed and
delivered by Xxxxxxx Xxxxxx, Xxxx Xxxxxx (or any other person acceptable to
Trustee from time to time having similar employee responsibilities) and Trustee,
as amended, modified or replaced from time to time, the form and substance of
which are reasonably satisfactory to Trustee.
"Agent" means any Registrar or Paying Agent.
"Agreement" means this Indenture, as amended or supplemented from time
to time.
"Agreement to Indemnify" means that certain agreement to indemnify
entered into by the Company in connection with the execution of the SAC
Participation and Subordination Agreement.
"amend" means to amend, supplement, restate, amend and restate or
otherwise modify; and "amendment" shall have a correlative meaning.
"Anti-Terrorism Laws" means any laws relating to terrorism or money
laundering, including Executive Order No. 13224 and the USA Patriot Act.
"Applicable Laws" means with respect to any Person, those laws, rules,
regulations, statutes and ordinances that apply to that Person or its business,
undertakings, property or securities.
"Applicable Procedures" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary that apply to such transfer or exchange.
"AREC" means Amerco Real Estate Company, a Nevada corporation.
"Asset" means any asset or property.
"Assigned Storage Agreements" has the meaning set forth in the
definition of "Synthetic Lease Collateral".
"Availability" means, as of any date of determination, if such date is
a Business Day, and determined at the close of business on the immediately
preceding Business Day, if such date of determination is not a Business Day, the
amount that the Borrowers are entitled to borrow as Advances (as defined in the
New Credit Agreement) under Section 2.1 of the New Credit Agreement (after
giving effect to all then outstanding Obligations (as defined in the New Credit
Agreement) (other than Bank Product Obligations, as defined in the New Credit
Agreement) and all sublimits and reserves applicable under the New Credit
Agreement).
"Bank Lenders" means the "Lenders" as defined in the New Credit
Agreement.
"Bank Lenders' Agent" means Xxxxx Fargo Foothill, Inc., a California
corporation, solely in its capacity as administrative agent and collateral agent
for the Bank Lenders under the New Credit Agreement, and any successor thereto.
"Bank Lenders' Collateral Agent" means the Bank Lenders' Agent, in its
capacity as collateral agent for the benefit of the Bank Lenders under the
Intercreditor Agreement, or any successor thereto.
2
"Bankruptcy Code" means Title 11 of the United States Code; provided
that when the context so requires with respect to the Canadian Subsidiaries,
"Bankruptcy Code" shall mean the Bankruptcy and Insolvency Act (Canada) or the
Companies' Creditors Arrangement Act (Canada), in any case, as in effect from
time to time.
"Bankruptcy Law" means the Bankruptcy Code or any similar federal,
provincial, or state law for the relief of debtors.
"Benefit Plan" means a "defined benefit plan" (as defined in Section
3(35) of ERISA) for which any Borrower or any Subsidiary or ERISA Affiliate of
any Note Party has been an "employer" (as defined in Section 3(5) of ERISA)
within the past 6 years.
"Blocked Person" means:
(a) a Person that is listed in the annex to, or is otherwise
subject to the provisions of, Executive Order No. 13224;
(b) a Person owned or controlled by, or acting for or on
behalf of, any Person that is listed in the annex to, or is otherwise
subject to the provisions of, Executive Order No. 13224;
(c) a Person or entity with which any bank or other financial
institution is prohibited from dealing or otherwise engaging in any
transaction by any Anti-Terrorism Law;
(d) a Person or entity that commits, threatens or conspires to
commit or supports "terrorism" as defined in Executive Order No. 13224;
(e) a Person or entity that is named as a "specially
designated national" on the most current list published by OFAC at its
official website or any replacement website or other replacement
official publication of such list; or
(f) a Person or entity who is affiliated with a Person or
entity listed above.
"Board of Directors" means the board of directors (or comparable
managers) of the Company or any committee thereof duly authorized to act on
behalf thereof.
"Books" means any Person's now owned or hereafter acquired books and
records (including all of its Records indicating, summarizing, or evidencing its
assets (including the Collateral) or liabilities, all of any Person's Records
relating to its or their business operations or financial condition, and all of
its goods or General Intangibles related to such information).
"Borrowers" means the "Borrowers" under the New Credit Agreement,
including as of the Issue Date the Company, 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,
Five PAC Company, a Nevada corporation, Fourteen PAC Company, a Nevada
corporation, One PAC Company, a Nevada corporation, Seven PAC Company, a Nevada
corporation, Sixteen PAC Company, a Nevada corporation, Ten
3
PAC Company, a Nevada corporation, U-Haul Co. of Alaska, an Alaska corporation,
U-Haul Co. of Arizona, and Arizona corporation, U-Haul Co. of Florida, a Florida
corporation, U-Haul of Hawaii, Inc., a Hawaii corporation, U-Haul International,
Inc., a Nevada corporation, and Yonkers Property Corporation, a New York
corporation. (Such Borrowers are referred to hereinafter each individually as a
"Borrower".)
"Business Day" means a day other than a Saturday, Sunday or other day
on which banking institutions in New York, New York are authorized or required
by law to close.
"Canadian Income Tax Act" means the Income Tax Act (Canada), R.S.C.
1985 C.1 (5th Supp.), as amended from time to time.
"Canadian Subsidiaries" means, collectively, U-Haul (Canada) and U-Haul
Inspections Ltd., a British Columbia corporation.
"Capital Expenditures" means, with respect to any Person for any
period, gross expenditures that are capital expenditures as determined in
accordance with GAAP for such period, whether such expenditures are paid in cash
or financed; minus lease funding received pursuant to operating and Capital
Lease commitments for such period; minus Net Dispositions for such period;
provided, however, Net Dispositions from the WP Xxxxx Transaction received after
the Issue Date but prior to March 31, 2004, shall be deemed received during
fiscal year 2005.
"Capital Lease" means a lease that is required to be capitalized for
financial reporting purposes in accordance with GAAP.
"Capitalized Lease Obligation" means that portion of the obligations
under a Capital Lease that is required to be capitalized in accordance with
GAAP.
"Cash Equivalents" means (a) marketable direct obligations issued or
unconditionally guaranteed by the United States or issued by any agency thereof
and backed by the full faith and credit of the United States, 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 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 two highest ratings obtainable from either
Standard & Poor's Rating Group ("S&P") or Xxxxx'x Investors Service, Inc.
("Xxxxx'x"), (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 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 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.
"Certificate(s) of Title" means a certificate evidencing the title to a
Vehicle.
4
"Change of Control" means (a) any "person" or "group" (within the
meaning of Sections 13(d) and 14(d) of the Exchange Act), other than Permitted
Holders, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act), directly or indirectly, of 30%, or more, of the Stock of the
Company having the right to vote for the election of members of the Board of
Directors, (b) a majority of the members of the Board of Directors do not
constitute Continuing Directors, (c) any Borrower ceases to own, directly or
indirectly, and control 100% of the outstanding capital Stock of any of its
Subsidiaries extant as of the Issue Date unless the disposition, liquidation or
merger of such Subsidiary was permitted by Section 5.03 hereof, (d) (i) all or
substantially all of the assets of the Company and its Restricted Subsidiaries
(as defined in the New AMERCO Note Indenture) are sold or otherwise transferred
to any Person other than a Wholly-Owned Restricted Subsidiary (as defined in the
New AMERCO Notes Indenture) that is a Note Party or (ii) the Company
consolidates or merges with or into another Person or any Person consolidates or
merges with or into the Company, in either case under this clause (d), in one
transaction or a series of related transactions in which immediately after the
consummation thereof Persons owning voting stock representing in the aggregate a
majority of the total voting power of the voting stock of the Company
immediately prior to such consummation do not own voting stock representing a
majority of the total voting power of the voting stock of the Company or the
surviving or transferee Person, or (e) the Company shall adopt a plan of
liquidation or plan of dissolution or any such plan shall be approved by the
stockholders of the Company.
"Chapter 11 Case" means Case NO. BK-03-52103-GWZ in the United States
Bankruptcy Court for the District of Nevada.
"Chattel Paper" means any Person's now owned or hereafter acquired
right, title and interest in respect of "chattel paper" as such term is defined
in the Code, including, without limitation, any tangible or electronic chattel
paper.
"Class A Definitive Note" means one or more Definitive Notes that do
not bear and are not required to bear the Private Placement Legend substantially
in the form of Exhibit A.
"Class A Global Note" means a permanent global Note substantially in
the form of Exhibit A attached hereto that bears the Global Note Legend and that
has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing a series of Notes that do not bear the Private
Placement Legend.
"Class A Notes" means the $120.0 million of 9.0% Second Lien Senior
Secured Notes due 2009 to be issued on the Issue Date in accordance with this
Agreement and pursuant to Section 1145 of the Bankruptcy Code, and any
additional Class A Notes issued in the Exchange Offer pursuant to Section
2.06(f) hereof.
"Class B Definitive Note" means a Definitive Note bearing the Private
Placement Legend substantially in the form of Exhibit B.
"Class B Global Note" means a global Note substantially in the form of
Exhibit B attached hereto that bears the Private Placement Legend and that has
the "Schedule of Exchanges
5
of Interests in the Global Note" attached thereto, and that is deposited with or
on behalf of and registered in the name of Depository, representing the series
of Class B Notes.
"Class B Notes" means the $80.0 million of 9.0% Second Lien Senior
Secured Notes due 2009 to be issued on the Issue Date in accordance with this
Agreement and pursuant to Regulation D of the Securities Act.
"Class B Purchase Agreement" means the Note Purchase Agreement, dated
as of March 1, 2004, by and among the Company, the Guarantors and the purchasers
of the Class B Notes, as such agreement may be amended, modified or supplemented
from time to time.
"Code" means the New York Uniform Commercial Code, as in effect from
time to time.
"Co-Collateral Trustee" means a Person acting jointly with the
Collateral Trustee as collateral agent under this Agreement, the Intercreditor
Agreement and the Security Documents.
"Collateral" means all of each Note Party's now owned or hereafter
acquired right, title, and interest in and to each of the following:
(a) Accounts,
(b) Books,
(c) Chattel Paper,
(d) Commercial Tort Claims,
(e) Deposit Accounts,
(f) Equipment,
(g) General Intangibles,
(h) Inventory,
(i) Investment Property,
(j) Negotiable Collateral,
(k) Real Property Collateral,
(l) Supporting Obligations,
(m) money, cash, Cash Equivalents, or other assets of each
such Note Party that now or hereafter come into the possession, custody, or
control of any Bank Lender, the Bank Lenders' Agent, the Trustee or any Holder
and are held for the benefit of the Holders,
(n) the proceeds and products, whether tangible or intangible,
of any of the foregoing, including proceeds of insurance covering any or all of
the foregoing, and any and all
6
Accounts, Books, Chattel Paper, Deposit Accounts, Equipment, General
Intangibles, Inventory, Investment Property, Negotiable Collateral, Real
Property, Supporting Obligations, money, deposit accounts, or other tangible or
intangible property resulting from the sale, exchange, collection, or other
disposition of any of the foregoing, or any portion thereof or interest therein,
and the proceeds thereof, and
(o) to the extent not included in the foregoing, all other
personal property of the Note Parties of any kind or description (including,
without limitation, with respect to either Canadian Guarantor, all "personal
property" (as defined in the PPSA) of such party and all "proceeds" (as defined
in the PPSA) thereof);
provided, however, that the Excluded Assets shall not be included in the
Collateral.
"Collateral Access Agreement" means a landlord waiver, bailee waiver,
mortgagee waiver, or acknowledgement of any lessor, warehouseman, processor,
mortgagee, assignee, or other Person in possession of, having a Lien upon, or
having rights or interests in the Equipment or Inventory, in each case in the
same form and substance as delivered to the Bank Lenders' Agent under the New
Credit Agreement, with such modifications as are necessary to reflect that the
Trustee's Liens in the Collateral are security interests, second in priority
only to the first priority security interests granted to Bank Lenders' Agent
pursuant to the New Credit Agreement and the other Loan Documents (as defined in
the New Credit Agreement).
"Collateral Trustee" means Xxxxx Fargo Bank, N.A., a national banking
association, in its capacity as collateral agent under this Agreement, the
Intercreditor Agreement and the Security Documents for the benefit of the
Holders, or any successor thereto.
"Collections" means all cash, checks, notes, instruments, and other
items of payment (including insurance proceeds, proceeds of cash sales, rental
proceeds, and tax refunds) of the Borrowers.
"Commercial Tort Claims" means any Person's now owned or hereafter
acquired right, title and interest with respect to any "commercial tort claim"
as such term is defined in the Code, including, without limitation, the PWC
Litigation.
"Company" means AMERCO, a Nevada corporation, and any and all
successors thereto and not any of its Subsidiaries.
"Confirmation Order" means the order entered in the Chapter 11 Case on
February 20, 2004, confirming the Reorganization Plan.
"Consolidated" means, with respect to the Company, the consolidation of
the income statement accounts of the Company's Subsidiaries with those of the
Company, all in accordance with GAAP, provided, that "consolidated" will not
include (a) the consolidation of the accounts of SAC Holding with the accounts
of the Company but for the inclusion of interest income earned on the Junior
Notes and management fees earned by U-Haul related to properties it manages that
are owned by SAC Holding; and (b) the consolidation of the accounts of the
Insurance Subsidiaries with the accounts of the Company but for the inclusion of
pre-tax net income earned by (or losses of) the Insurance Subsidiaries.
7
"Consolidated Cash Interest Expense" means, for any period, the
Consolidated Interest Expense of the Company paid in cash for such period
(including, without limitation, the Unused Line Fees (as defined in the New
Credit Agreement), the interest component of any deferred payment obligations,
the interest component of all payments associated with Capitalized Lease
Obligations, commissions, discounts and other fees and charges incurred in
respect of a Letter of Credit (as defined in the New Credit Agreement) or
bankers' acceptance financing and net payments pursuant to Hedge Agreements),
provided that Consolidated Cash Interest Expense shall exclude interest expense
accrued or capitalized during such period.
"Consolidated Charges" means, for any period, any extraordinary and/or
non-recurring Consolidated charges of the Company, representing restructuring
charges, payments to restructuring financial advisors and legal counsel,
non-cash impairment of asset charges and other non-cash write-offs that were
deducted in arriving at Consolidated Net Income; provided, however, (a) the
aggregate amount of Consolidated Charges calculated for the 3-month period
ending March 31, 2004 shall not exceed $75,000,000, (b) the aggregate amount of
Consolidated Charges calculated for the 3-month period ending June 30, 2004
shall not exceed $3,800,000, (c) the aggregate amount of Consolidated Charges
calculated for the 6-month period ending September 30, 2004 shall not exceed
$7,500,000, (d) the aggregate amount of Consolidated Charges calculated for the
9-month period ending December 31, 2004 shall not exceed $11,300,000, and (e)
the aggregate amount of Consolidated Charges calculated for the 12-month period
ending March 31, 2005 and as of the end of each fiscal quarter thereafter shall
not exceed $15,000,000.
"Consolidated EBITDA" means, for any period, the sum, without
duplication, of (i) Consolidated Net Income for such period; plus (ii)
Consolidated Interest Expense for such period; plus (iii) provision for
Consolidated taxes of the Company based on income or profits for such period (to
the extent such income or profits were included in computing the Consolidated
Net Income for such period); plus (iv) Consolidated depreciation, amortization
and other non-cash expense of the Company; plus (v) Consolidated Charges in each
case that were deducted in determining the Consolidated Net Income for such
period; minus (vi) pre-tax net income of the Insurance Subsidiaries; plus (vii)
losses of the Insurance Subsidiaries; minus (viii) gains from sales of any Real
Property; plus (ix) losses from sales of any Real Property minus (x) to the
extent the Synthetic Leases (including any refinancings, in whole or in part
thereof), or any of them, are treated as Capital Leases in accordance with the
requirements of GAAP, the amounts of principal and interest due and paid under
such Synthetic Leases for such period, as such principal amounts are set forth
on Schedule 7.8(a) of the New Credit Agreement as of the Issue Date.
"Consolidated Interest Expense" means, for any period, the Consolidated
interest expense of the Company for such period, whether paid, accrued or
capitalized (including, without limitation, amortization of original issue
discount, non-cash interest payments, the Unused Line Fees (as defined in the
New Credit Agreement), the interest component of any deferred payment
obligations, the interest component of all payments associated with Capitalized
Lease Obligations, commissions, discounts and other fees and charges incurred in
respect of a Letter of Credit (as defined in the New Credit Agreement) or
bankers' acceptance financing and net payments pursuant to Hedge Agreements).
8
"Consolidated Net Income" means, for any period, the net income of the
Company for such period, determined in accordance with GAAP, provided that such
net income is calculated pursuant to the income statement presentation set forth
in the definition of "Consolidated".
"Continuing Director" means (a) any member of the Board of Directors
who was a director (or comparable manager) of the Company on the Issue Date, and
(b) any individual who becomes a member of the Board of Directors after the
Issue Date if such individual was appointed or nominated for election to the
Board of Directors by a majority of the Continuing Directors, but excluding any
such individual originally proposed for election in opposition to the Board of
Directors in office at the Issue Date in an actual or threatened election
contest relating to the election of the directors (or comparable managers) of
the Company (as such terms are used in Rule 14a-11 under the Exchange Act) and
whose initial assumption of office resulted from such contest or the settlement
thereof.
"Control Agreement" means a control agreement executed and delivered by
the Company or one of its Subsidiaries, the Trustee, and the applicable
securities intermediary with respect to a Securities Account or a bank with
respect to a Deposit Account, in the same form and substance delivered to the
Bank Lenders' Agent under the New Credit Agreement, with such modifications as
are necessary to reflect that the Trustee's Liens in the Collateral subject
thereto are security interests, second in priority only to the first priority
security interests granted to Bank Lenders' Agent pursuant to the New Credit
Agreement and the other Loan Documents (as defined in the New Credit Agreement).
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 13.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Copyright Security Agreement" means that certain copyright security
agreement executed and delivered by each of the Note Parties that own copyrights
as of the Issue Date and the Trustee, in the same form and substance as
delivered to the Bank Lenders' Agent under the New Credit Agreement, with such
modifications as are necessary to reflect that the Trustee's Liens in the
Collateral subject thereto are security interests, second in priority only to
the first priority security interests granted to Bank Lenders' Agent pursuant to
the New Credit Agreement and the other Loan Documents (as defined in the New
Credit Agreement).
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"DDA" means any checking or other demand deposit account maintained by
any Borrower.
"Dealer List" means, at any date, a report of the name and location of
all U-Haul Dealers as of such date.
"Dealership Contract" means a U-Haul dealership contract between a
subsidiary of U-Haul, on the one hand, and a U-Haul Dealer, on the other hand.
9
"Default" means any event, condition, or default that, with the giving
of notice, the passage of time or both, would be an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit A or Exhibit B hereto, as applicable,
except that such Note shall not bear the Global Note Legend and shall not have
the "Schedule of Exchanges of Interests in the Global Note" attached thereto.
"Deposit Accounts" means any Person's now owned or hereafter acquired
right, title and interest with respect to any "deposit account" as such term is
defined in the Code, including, without limitation, any DDAs.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Agreement.
"Depositary Custodian" means the Trustee, as custodian for the
Depositary with respect to the Notes in global form, or any successor entity
thereto.
"DIP Loan Agreement" means that certain Senior Secured, Super-Priority
Debtor-in-Possession Loan and Security Agreement, dated as of August 15, 2003,
among the Company, AREC, Xxxxx Fargo Foothill, Inc., as agent, and the various
lenders party thereto, as amended by that certain First Amendment to Loan and
Security Agreement dated as of September 23, 2003.
"DIP Obligations" means, as of any date of determination, all
Obligations (as defined in the DIP Loan Agreement) outstanding under the DIP
Loan Agreement, including any Advances (as defined in the DIP Loan Agreement)
outstanding (including, without limitation, the face amount of any outstanding
Letter of Credit issued pursuant to the DIP Loan Agreement), the Term Loan (as
defined in the DIP Loan Agreement) and accrued interest, fees and other charges
payable thereunder.
"Dollars" or "$" means United States dollars.
"Dormant Subsidiaries" means, collectively, EJOS, Inc., an Arizona
corporation, Japal, Inc., a Nevada corporation, M.V.S., Inc., a Nevada
corporation, Pafran, Inc., a Nevada corporation, Sophmar, Inc., a Nevada
corporation, and Picacho Peak Investments Co, a Nevada corporation.
"ECF Carry Forward Amount" means, at any time of determination, (a)(i)
as of the Issue Date through September 30, 2004, $3,335,000, (ii) as of October
1, 2004 through March 30, 2005, 50% of Borrowers' Excess Cash Flow (whether
positive or negative) for the period commencing on April 1, 2004 and ending on
September 30, 2004, based on unaudited financial statements provided to the
Trustee pursuant to Section 4.04(a), or (iii) as of March 31, 2005 and at all
times thereafter, 50% of Borrowers' Excess Cash Flow for the fiscal year ending
March 31, 2005 (whether positive or negative), based on the audited financial
statements provided to the Trustee pursuant to Section 4.04(b), plus Borrowers'
Excess Cash Flow for each fiscal year thereafter (to the extent positive) for
which audited financial statements have been provided to
10
the Trustee pursuant to Section 4.04(b), minus (b) the sum of (i) the aggregate
amount of dividends paid in arrears on account of the preferred stock of the
Company on or after January 1, 2004 made from Borrowers' Excess Cash Flow
pursuant to clause (c) of Section 5.11, and (ii) the aggregate amount of
prepayments of the principal amount of the Indebtedness under the New AMERCO
Notes and the Notes made from Borrowers' Excess Cash Flow after the Issue Date
pursuant to clause (2) of Section 5.08(a)(vi), and (iii) the aggregate amount of
prepayments of the principal amount of the Indebtedness under the Synthetic
Leases made from Borrower's Excess Cash Flow after the Issue Date pursuant to
clause (3) of Section 5.08(a)(vii), in each case on a cumulative basis.
"Effective Date" has the meaning set forth in the Reorganization Plan.
"Environmental Actions" means any complaint, summons, citation, notice,
directive, order, claim, litigation, investigation, judicial or administrative
proceeding, judgment, letter, or other communication from any Governmental
Authority, or any third party involving violations of Environmental Laws or
releases of Hazardous Materials from (a) any assets, properties, or businesses
of any Borrower or any predecessor in interest, (b) from adjoining properties or
businesses, or (c) from or onto any facilities which received Hazardous
Materials generated by any Borrower or any predecessor in interest.
"Environmental Indemnity Agreements" means, collectively, those certain
environmental indemnity agreements executed and delivered by Note Parties in
favor of the Trustee, in the same form and substance as delivered to Bank
Lenders' Agent under the New Credit Agreement.
"Environmental Law" means any applicable federal, state, provincial,
foreign or local statute, law, rule, regulation, ordinance, code, binding and
enforceable guideline, binding and enforceable written policy, or rule of common
law now or hereafter in effect and in each case as amended, or any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, to the extent binding on Borrowers, relating
to the environment, employee health and safety, or Hazardous Materials,
including CERCLA; RCRA; the Federal Water Pollution Control Act, 33 U.S.C.
Section 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601
et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 3803 et seq.; the Oil Pollution Act of 1990, 33
U.S.C. Section 2701 et seq.; the Emergency Planning and the Community
Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Hazardous
Material Transportation Act, 49 U.S.C. Section 1801 et seq.; and the
Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq. (to the extent
it regulates occupational exposure to Hazardous Materials); any state and local
or foreign counterparts or equivalents, in each case as amended from time to
time.
"Environmental Liabilities and Costs" means all liabilities, monetary
obligations, Remedial Actions, losses, damages, punitive damages, consequential
damages, treble damages, costs and expenses (including all reasonable fees,
disbursements and expenses of counsel, experts, or consultants and costs of
investigation and feasibility studies), fines, penalties, sanctions, and
interest incurred as a result of any claim or demand by any Governmental
Authority or any third party, and which relate to an Environmental Action.
11
"Environmental Lien" means any Lien in favor of any Governmental
Authority for Environmental Liabilities and Costs.
"Equipment" means any Person's now owned or hereafter acquired right,
title, and interest with respect to equipment, machinery, machine tools, motors,
furniture, furnishings, fixtures, Vehicles, tools, parts, goods (other than
consumer goods, farm products, or Inventory), wherever located, including all
attachments, accessories, accessions, replacements, substitutions, additions,
and improvements to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto.
"ERISA Affiliate" means (a) any Person subject to ERISA whose employees
are treated as employed by the same employer as the employees of a Borrower or a
Subsidiary of a Borrower under IRC Section 414(b), (b) any trade or business
subject to ERISA whose employees are treated as employed by the same employer as
the employees of a Borrower or a Subsidiary of Borrower under IRC Section
414(c), (c) solely for purposes of Section 302 of ERISA and Section 412 of the
IRC, any organization subject to ERISA that is a member of an affiliated service
group of which a Borrower or a Subsidiary of Borrower is a member under IRC
Section 414(m), or (d) solely for purposes of Section 302 of ERISA and Section
412 of the IRC, any Person subject to ERISA that is a party to an arrangement
with a Borrower or a Subsidiary of a Borrower and whose employees are aggregated
with the employees of a Borrower or a Subsidiary of a Borrower under IRC Section
414(o).
"Event of Default" has the meaning set forth in Section 6.01.
"Excess Availability" means the amount, as of the date any
determination thereof is to be made, equal to the difference between (a) the
lesser of (i) the Borrowing Base (as defined in the New Credit Agreement) or
(ii) the sum of (1) the Maximum Revolver Amount (as defined in the New Credit
Agreement) plus (2) the Term Loan Amount (as defined in the New Credit
Agreement), and (b) the Obligations (as defined in the New Credit Agreement)
then outstanding.
"Excess Availability Test" means, at the time of payment of any
Indebtedness under the New AMERCO Notes or Notes pursuant to Section
5.8(a)(v)(ii) or at the time of declaration or payment of any dividend or
dividend in arrears pursuant to Section 5.11(b) or Section 5.11(c),
respectively, (a) Borrowers' Excess Availability plus Qualified Cash (as
reported to the Bank Lenders' Agent by Borrowers pursuant to Section 6.2(a) of
the New Credit Agreement), exceeds (i) $35,000,000 plus (ii) the amount of such
dividend or debt payment as of the date of such payment and as of the month end
for each of the preceding consecutive 12 fiscal months immediately preceding
such payment date, and (b) after giving effect to such payment, Borrowers'
Excess Availability plus Qualified Cash, as reflected in the Projections (as
defined in the New Credit Agreement) most recently delivered to the Trustee
pursuant to Section 4.04(c) hereof, is projected to exceed $35,000,000 for the
month end of each of the 12 fiscal months immediately succeeding such payment
date.
"Excess Cash Flow" means, for the fiscal year most recently ended prior
to any determination date and based upon the audited financial statements
delivered by Borrowers
12
pursuant to Section 4.04(b), (a) Consolidated EBITDA, minus (b) the sum of (i)
Consolidated Cash Interest Expense, plus (ii) Capital Expenditures permitted
hereunder, plus (iii) payments of the principal amount of Funded Debt (other
than payments of principal made under the revolving credit facility contained in
the New Credit Agreement and advances and prepayments of the Notes and the New
AMERCO Notes paid from the Borrowers' Excess Cash Flow pursuant to clause (2) of
Section 5.08(a)(vi) hereof) paid during such period and other permitted debt
service payments made, plus (v) federal, state and local income taxes paid in
cash, minus (c) the aggregate amount of dividends paid on account of the Stock
of the Company during such fiscal year pursuant to clause (b) of Section 5.11.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Notes" means the Class A Notes issued in the Exchange Offer
pursuant to Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
"Excluded Assets" means (a) the Synthetic Leases and the Synthetic
Lease Collateral, (b) the Junior Notes and the interest accrued thereon and
proceeds received from the monetization of Junior Notes, (c) all Real Property
set forth on Schedule E-1 of the New Credit Agreement under contract of sale as
of the Issue Date and proceeds received from any such sale, (d) all Real
Property subject to a first priority Lien of Oxford as of the Issue Date, as set
forth on Schedule E-1 of the New Credit Agreement, (e) all Real Property
designated as "Surplus Real Property" as of the Issue Date, as set forth on
Schedule E-1 of the New Credit Agreement and any proceeds received from any sale
of such Real Property, (f) the Company's Stock of the Insurance Subsidiaries and
the proceeds received from the monetization of such Stock, (g) proceeds in
excess of $50,000,000 from any settlement, judgment or other recovery from the
PWC Litigation, (h) Vehicles (including any tow dolly or auto transport) that,
as of the Issue Date are or thereafter become, and remain subject to, a TRAC
Lease Transaction, and proceeds from the sale of such Vehicles to the extent no
Note Party has any rights to or interest in such proceeds, except to the extent
such Vehicles become subject to the Trustee's Liens pursuant to Section 5.04
hereof, (i) Vehicles (including any tow dolly or auto transport) that become and
remain subject to the PMCC Leveraged Lease and proceeds from the sale of such
Vehicles to the extent no Note Party has any rights to or interest in such
proceeds, and (j) the cash collateral accounts set forth on Schedule 2.7(e) to
the New Credit Agreement. With respect to the Excluded Assets set forth in
clause (g) above, it is hereby acknowledged and agreed that attorneys' fees and
costs, court costs, expert witness fees and expenses and other similar costs and
expenses paid or payable by the Company with respect to the PWC Litigation or
any current or future taxes paid or payable by the Company with respect to
settlement payments or damage awards (after taking into account any available
tax credits or deductions and any tax sharing arrangements) with respect to the
PWC Litigation shall not be deducted from or otherwise offset against the
Trustee's Collateral.
13
"Executive Order No. 13224" means Executive Order No. 13224 on
Terrorist Financing, effective September 24, 2001, as the same has been, or
shall hereafter be, renewed, extended, amended or replaced.
"Fair Market Valuation" means the most recent fair market valuation
acceptable to the Bank Lenders by a third party appraiser acceptable to the Bank
Lenders of the Real Property Collateral which is subject to a valid and
perfected Trustee's Lien (second only to the first priority security interests
granted to Bank Lenders' Agent pursuant to the New Credit Agreement and the
other Loan Documents (as defined in the New Credit Agreement)), subject only to
Permitted Liens of the type described in clauses (a), (b), (c), (f), (j), (k),
(l) and (n) of the definition thereof.
"Family Member" means, with respect to any individual, spouse and
lineal descendants (including children and grandchildren by adoption) of such
individual, the spouses or each such lineal descendants, and the lineal
descendants of such Persons.
"Family Trusts" means, with respect to any individual, any trusts,
limited partnerships or other entities established for the primary benefit of
the executor or administrator of the estate of, or other legal representative
of, such individual.
"FEIN" means Federal Employer Identification Number.
"Funded Debt" means without double-counting, with respect to the
Company on a Consolidated basis, as of any date of determination, all
obligations of the type described in clauses (a) through (c) and clause (e) of
the definition of "Indebtedness" and clause (f) of such definition with respect
to any guaranty of any of the foregoing, and specifically including, without
limitation, the amount of outstanding Obligations hereunder.
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States, consistently applied.
"General Intangibles" means any Person's now owned or hereafter
acquired right, title, and interest with respect to general intangibles (as that
term is defined in the Code), including payment intangibles, contract rights,
rights to payment, rights arising under common law, statutes, or regulations,
choses or things in action, goodwill, patents, trade names, trademarks,
servicemarks, copyrights, blueprints, drawings, purchase orders, customer lists,
monies due or recoverable from pension funds, route lists, rights to payment and
other rights under any royalty or licensing agreements, infringement claims,
computer programs, information contained on computer disks or tapes, software,
literature, reports, catalogs, pension plan refunds, pension plan refund claims,
insurance premium rebates, tax refunds, and tax refund claims, and any and all
Supporting Obligations in respect thereof, and any other personal property other
than goods, money, Accounts, Chattel Paper, Commercial Tort Claims, Deposit
Accounts, Investment Property, and Negotiable Collateral.
"Global Note Legend" means the legend set forth in Section 2.06(g),
which is required to be placed on all Global Notes issued under this Agreement.
14
"Global Notes" means, individually and collectively, each of the Class
A Global Notes and Class B Global Notes, substantially in the form of Exhibit A
and Exhibit B hereto, respectively, issued in accordance with Section 2.01,
2.02, 2.06, 2.07 and 2.10 hereof.
"Governing Documents" means, with respect to any Person, the
certificate or articles of incorporation, bylaws, or other organizational
documents of such Person.
"Governmental Authority" means any federal (including the federal
government of Canada), state, provincial, local or other governmental or
administrative body, instrumentality, department, or agency, or any court,
tribunal, administrative hearing body, arbitration panel, commission or other
similar dispute-resolving panel or body.
"Guarantee" means a direct or indirect guarantee by any Person of any
Indebtedness of any other Person and includes any obligation, direct or
indirect, contingent or otherwise, of such Person: (1) to purchase or pay (or
advance or supply funds for the purchase or payment of) Indebtedness of such
other Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services
(unless such purchase arrangements are on arm's-length terms and are entered
into in the ordinary course of business), to take-or-pay, or to maintain
financial statement conditions or otherwise); or (2) entered into for purposes
of assuring in any other manner the obligee of such Indebtedness of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part). The terms "guarantee," when used as a verb, and "guaranteed" have
correlative meanings.
"Guarantor" and "Guarantors" means all direct and indirect Subsidiaries
of the Company, except for the Insurance Subsidiaries, any Subsidiary formed
under the laws of a jurisdiction outside of the United States and Canada,
Storage Realty, L.L.C., a Texas limited liability company, INW, and the Dormant
Subsidiaries. For the avoidance of doubt, SAC Holding shall not be a Guarantor
under this Agreement. As of the Issue Date, all Guarantors are listed on the
signature page of this Agreement.
"Guarantor Security Agreement" means, collectively, one or more
security agreements, hypothecations or other similar agreements executed and
delivered by Guarantors and the Trustee, in the same form and substance as such
security agreements, hypothecations or similar agreements delivered by the
Guarantors to the Bank Lenders' Agent under the New Credit Agreement, with such
modifications as are necessary to reflect the fact that the Trustee's Liens in
the Collateral subject thereto are security interests, second in priority only
to the first priority security interests granted to Bank Lenders' Agent pursuant
to the New Credit Agreement and the other Loan Documents (as defined in the New
Credit Agreement).
"Guaranty Agreement" means the Guaranty executed and delivered by
Guarantors and the Trustee, in the same form and substance delivered by the
Guarantors to the Bank Lenders' Agent under the New Credit Agreement, with such
modifications as are necessary to reflect that the Trustee's security interests
are second in priority only to the first priority security interests granted to
Bank Lenders' Agent pursuant to the New Credit Agreement and the other Loan
Documents (as defined in the New Credit Agreement).
15
"Hazardous Materials" means (a) substances that are defined or listed
in, or otherwise classified pursuant to, any Applicable Laws or regulations as
"hazardous substances," "hazardous materials," "hazardous wastes," "toxic
substances," or any other formulation intended to define, list, or classify
substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, reproductive toxicity, or "EP
toxicity", (b) oil, petroleum, or petroleum derived substances, natural gas,
natural gas liquids, synthetic gas, drilling fluids, produced waters, and other
wastes associated with the exploration, development, or production of crude oil,
natural gas, or geothermal resources, (c) any flammable substances or explosives
or any radioactive materials, and (d) asbestos in any form or electrical
equipment that contains any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of 50 parts per million.
"Hedge Agreement" means any and all agreements or documents now
existing or hereafter entered into by the Company or its Subsidiaries 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 the Company's or its
Subsidiaries' exposure to fluctuations in interest or exchange rates, loan,
credit exchange, security or currency valuations or commodity prices.
"Holder" means any registered holder, from time to time, of the Notes.
"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), and (f) 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 (e) above.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Insolvency Proceeding" means any proceeding commenced by or against
any Person under any provision of the Bankruptcy Code or under any other state,
provincial or federal (including the federal laws of Canada) bankruptcy or
insolvency law, assignments for the benefit of creditors, formal or informal
moratoria, compositions, extensions generally with creditors, or proceedings
seeking reorganization, arrangement, or other similar relief.
"Insurance Subsidiaries" means, collectively, Oxford and RepWest.
"Intangible Assets" means, with respect to any Person, that portion of
the book value of all of such Person's assets that would be treated as
intangibles under GAAP.
16
"Intercreditor Agreement" means that certain Intercreditor Agreement,
as of even date herewith, between the Trustee and the Bank Lenders' Collateral
Agent, as amended, modified, supplemented, extended or restated from time to
time.
"Interest" means, with respect to all Notes, interest on the Notes, and
with respect to the Class B Notes, Additional Interest, if any, on the Class B
Notes or Exchange Notes issued in exchange therefor, as provided in the
Registration Rights Agreement.
"Inventory" means any Person's now owned or hereafter acquired right,
title, and interest with respect to inventory, including goods held for sale or
lease or to be furnished under a contract of service, goods that are leased by
such Person as lessor, goods that are furnished by such Person under a contract
of service, and raw materials, work in process, or materials used or consumed in
such Person's business, including, without limitation, supplies and embedded
software.
"Investment" means, with respect to any Person, any investment by such
Person in any other Person (including Affiliates) in the form of loans,
guarantees, advances, or capital contributions (excluding (a) commission,
travel, and similar advances to officers and employees of such Person made in
the ordinary course of business, and (b) bona fide Accounts arising in the
ordinary course of business consistent with past practices), purchases or other
acquisitions for consideration of Indebtedness or Stock, and any other items
that are or would be classified as investments on a balance sheet prepared in
accordance with GAAP.
"Investment Property" means any Person's now owned or hereafter
acquired right, title, and interest with respect to "investment property" as
that term is defined in the Code, and any and all Supporting Obligations in
respect thereof.
"INW" means INW Company, a Washington corporation.
"IRC" means the Internal Revenue Code of 1986, as in effect from time
to time.
"IRS" means the Internal Revenue Service of the United States and any
successor thereto.
"Issue Date" means the date on which the Notes are originally issued.
For the avoidance of doubt, such date is March 15, 2004.
"Junior Notes" means those promissory notes issued by SAC Holding to
Nationwide Commercial Co., an Arizona corporation, U-Haul and Oxford prior to
the Parent Relief Date, as amended and restated as of the Issue Date.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"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 the
17
foregoing, the term "Lien" includes the lien, security interest or hypothec
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 Real Property.
"Major Space Leases" means lease agreements, other than lease
agreements covering all or a portion of Real Property subject to the Synthetic
Leases, pursuant to which the proposed demised premises exceeds 5,000 square
feet and the proposed term thereof, inclusive of all extensions and renewals,
exceeds 10 years.
"Management Agreements" means, collectively, those certain property
management agreements between Subsidiaries of U-Haul, on the one hand, and any
of SAC Holding or SSI, on the other hand.
"Material Adverse Change" means (a) a material adverse change in the
business, prospects, operations, results of operations, assets, liabilities or
condition (financial or otherwise) of the Borrowers and their Subsidiaries
(other than the Insurance Subsidiaries) taken as a whole, (b) a material
impairment of the ability of a Note Party to perform its obligations under the
Note Documents to which it is a party or of the ability of the Trustee or the
Holders to enforce the Obligations or realize upon the Collateral, or (c) a
material impairment of the enforceability or priority of the Trustee's Liens
with respect to the Collateral as a result of an action or failure to act on the
part of a Borrower or a Subsidiary of a Borrower (other than the Insurance
Subsidiaries). For the avoidance of doubt, changes affecting SAC Holding shall
not constitute a "Material Adverse Change."
"Material Contracts" means the agreements set forth on Schedule M-1 to
the New Credit Agreement, which include each of the agreements (a) filed in
connection with any Note Party's SEC Filings and in existence as of the Issue
Date, (b) executed in connection with the Reorganization Plan, and (c) those
agreements to which any Note Party is a party and the loss or breach of which by
such Note Party would result in a Material Adverse Change, as such agreements
are in existence on the Issue Date or as amended to the extent permitted
hereunder.
"Mortgage Policy" means mortgagee title insurance policies (or marked
commitments to issue the same) for the Real Property Collateral issued by the
same title insurance company or companies issuing mortgagee title insurance
policies in connection with the mortgages granted pursuant to the New Credit
Agreement in amounts reasonably satisfactory to the Trustee assuring the Trustee
that the Mortgages encumbering such Real Property Collateral owned by a Note
Party are valid and enforceable mortgage Liens thereon (second only to the first
priority security interests granted to Bank Lenders' Agent pursuant to the New
Credit Agreement and the other Loan Documents (as defined in the New Credit
Agreement)) free and clear of all defects and encumbrances except Permitted
Liens, and the Mortgage Policies otherwise shall be in form and substance
reasonably satisfactory to the Trustee.
"Mortgages" means, individually and collectively, one or more
mortgages, hypothecs, deeds of trust, or deeds to secure debt, executed and
delivered by a Note Party in favor of the
18
Trustee, for the benefit of the Holders, in similar form and substance to those
delivered to the Bank Lenders' Agent or the Fonde de pouvoir under the New
Credit Agreement, with such modifications as necessary to reflect the fact that
the Trustee's rights in the Collateral subject thereto are Liens (second only to
the first priority security interests granted to Bank Lenders' Agent pursuant to
the New Credit Agreement and the other Loan Documents (as defined in the New
Credit Agreement)) that encumber the Real Property Collateral and the related
improvements thereto.
"Multiemployer Plan" means a "multiemployer plan" (as defined in
Section 4001(a)(3) of ERISA) to which the Company, any of its Subsidiaries, or
any ERISA Affiliate has contributed, or was obligated to contribute, within the
past six (6) years.
"Negotiable Collateral" means any Person's now owned and hereafter
acquired right, title, and interest with respect to letters of credit, letter of
credit rights, instruments, promissory notes, drafts, and documents, and any and
all Supporting Obligations in respect thereof.
"Net Disposition" means the aggregate amount of Net Proceeds received
by a Note Party from the disposition of any Equipment that is a capital asset
and any Real Property that constitutes an Excluded Asset during any period.
"Net Proceeds" means, with respect to any asset disposition by the
Company or any Subsidiary of the Company or any proceeds from casualty insurance
received by the Company or any Subsidiary, the aggregate amount of cash or Cash
Equivalents received for such assets, 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 hereunder
to the extent that such Permitted Liens (other than the Synthetic Leases), if
any, are senior in priority to the Trustee's 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) through (e) to
the extent the amounts so deducted are properly attributable to such transaction
and payable (or reserved) by the Company or any Subsidiary of the Company in
connection with such disposition or loss, including without limitation
reasonable and customary commissions and underwriting discounts, to a Person
that is not an Affiliate of the Company or such Subsidiary.
"New AMERCO Note Accounts" means, collectively, the Restated SAC Notes
Escrow Account, the 3.08(b) Account and any other Deposit Account that holds or
otherwise constitutes the collateral securing the obligations under the New
AMERCO Note Documents.
"New AMERCO Note Documents" means, collectively, the New AMERCO Note
Indenture, the New AMERCO Notes and such other documents executed by the Company
in connection therewith.
"New AMERCO Note Indenture" means the Indenture with respect to the
issuance of New AMERCO Notes, dated March 15, 2004, among the Company, the
guarantors listed on the signature pages thereto, and The Bank of New York, as
trustee, governing the New AMERCO Notes.
19
"New AMERCO Note Lenders" means those Persons that are "Holders" under
the New AMERCO Note Indenture.
"New AMERCO Notes" means the 12% Senior Secured Subordinated Notes Due
2011 in the principal amount of $148,646,137 issued pursuant to the New AMERCO
Note Indenture.
"New Credit Agreement" means the Loan and Security Agreement dated as
of March 1, 2004, by and among Xxxxx Fargo Foothill, Inc., as lead arranger,
administrative agent, and collateral agent, the Bank Lenders and the Borrowers,
as may be subsequently amended, restated, refinanced, refunded, extended or
replaced from time to time whether by the same or any other agent, lender or
group of lenders.
"Note Documents" means this Agreement (together with all exhibits and
schedules hereto), the Notes, the Cash Management Agreements (as defined in the
New Credit Agreement), the Collateral Access Agreements, the Confirmation Order,
the Control Agreements, the Copyright Security Agreement, the Guarantor Security
Agreement, the Guaranty Agreement, the Note Guarantees, the Environmental
Indemnity Agreements, the Mortgages, the Patent and Trademark Security
Agreement, the Quebec Security Documents, the Agency Letter, the Stock Pledge
Agreement, any other Security Document and any other agreement entered into, now
or in the future, by any Note Party and accepted by the Trustee or any Holder in
connection with this Agreement or any other Security Document.
"Note Guarantee" means, collectively, the guarantee by each Guarantor
of the Company's obligations under this Agreement, the Notes and the other Note
Documents in favor of the Trustee, for the benefit of the Holders.
"Note Party" means the Company or any Guarantor, and "Note Parties"
means the Company and all Guarantors.
"Notes" means the Class A Notes, the Class B Notes and the Exchange
Notes.
"Obligation" means any principal, interest, premiums, Additional
Interest, penalties, fees, indemnifications, reimbursements, costs, expenses,
damages and other liabilities payable and any performance due under the
documentation governing any Indebtedness.
"OFAC" means the Office of Foreign Assets Control of the United States
Department of Treasury.
"Officer" means any of the following of the Company: the Chairman of
the Board of Directors, the Chief Executive Officer, the Chief Financial
Officer, the President, any Vice President, the Treasurer or the Secretary.
"Officer's Certificate" means a certificate signed by an Officer.
"Organizational ID Number" means, with respect to any Person, the
organizational identification number assigned to such Person by the applicable
governmental unit or agency of the jurisdiction of organization or formation of
such Person.
20
"Oxford" means Oxford Life Insurance Company, an Arizona corporation,
and its Subsidiaries, whether now existing or hereafter formed.
"Parent Relief Date" means June 20, 2003.
"Participant" means, with respect to the Depositary, a Person who has
an account with the Depositary.
"Patent and Trademark Security Agreement" means that certain patent and
trademark security agreement executed and delivered by all Note Parties that own
patent or trademarks as of the Issue Date, and the Trustee, in the same form and
substance as delivered to the Bank Lenders' Agent under the New Credit
Agreement, with such modifications as necessary to reflect the fact that the
Trustee's Liens in the Collateral subject thereto are security interests, second
in priority only to the first priority security interests granted to Bank
Lenders' Agent pursuant to the New Credit Agreement and the other Loan Documents
(as defined in the New Credit Agreement).
"PBGC" means the Pension Benefit Guaranty Corporation as defined in
Title IV of ERISA, or any successor thereto.
"Permitted Discretion" means a determination made in good faith and in
the exercise of reasonable (from the perspective of a secured asset-based
lender) business judgment.
"Permitted Dispositions" means (a) sales or other dispositions by the
Borrowers or their Subsidiaries of Equipment that is substantially worn,
damaged, or obsolete in the ordinary course of business, as determined by the
Borrowers or their Subsidiaries, as the case may be, (b) the use or transfer of
money or Cash Equivalents by Borrowers or their Subsidiaries in a manner that is
not prohibited by the terms of this Agreement or the other Note Documents, (c)
the licensing by Borrowers or their Subsidiaries, on a non-exclusive basis, of
patents, trademarks, copyrights, and other intellectual property rights in the
ordinary course of business, (d) conveyances, assignments, leases, transfers,
sales or dispositions of any Excluded Asset, (e) leases and licenses of
self-storage units to customers in the ordinary course of business, (f) the
granting of billboard and cell tower leases on any Real Property, (g) the
granting of space leases in the ordinary course of business that do not
constitute Major Space Leases, unless otherwise consented to by the Bank
Lenders' Agent, (h) dispositions of Real Property or any part thereof required
in connection with condemnations or takings, or dispositions in lieu thereof,
where the compensation paid on account thereof is immediately remitted to the
Bank Lenders' Agent, (i) so long as no Event of Default has occurred and is
continuing, dispositions of box-trucks, cargo vans and pickup trucks in the
ordinary course of the Company's and U-Haul's fleet rotation program, so long as
the aggregate net book value of box-trucks, cargo vans and pickup trucks subject
to Trustee's Liens does not decrease by more than (i) $40,000,000 in any of (A)
the first fiscal quarter after the Issue Date (to be tested as of the end of
such period), (B) the first two fiscal quarters after the Issue Date (to be
tested as of the end of such period), (C) the first three fiscal quarters after
the Issue Date (to be tested as of the end of such period), or (D) each 12-month
period thereafter (to be tested as of the end of each fiscal quarter), or (ii)
$160,000,000 in the aggregate after the Issue Date, (j) the granting of
Permitted Easements, (k) so long as no Event of Default has occurred and is then
continuing, the sale in the ordinary course of business of Vehicles acquired
within the previous 130 days in connection with a TRAC Lease Transaction to the
extent the obligations
21
thereunder are permitted by this Agreement, (l) the sale, disposition or
replacement of Vehicles exchanged in connection with the PMCC Like Kind Exchange
Lease, (m) sales or other dispositions set forth in the Reorganization Plan and
approved in the Confirmation Order, (n) the sale of that certain portion of the
parcel of Real Property Collateral located at 000 Xxxxx Xxxx, Xxxxxxxxxxxx, Xxx
York that is subject to the lease purchase option exercised prior to the Issue
Date, (o), so long as no Event of Default shall be caused thereby, other
dispositions of Real Property Collateral with a Fair Market Valuation in an
aggregate amount not to exceed either (i) $10,000,000 during any fiscal year or
(ii) $35,000,000 in total after the Issue Date; provided, however, the sale or
other disposition of any parcel of Real Property Collateral (x) shall result in
a Note Party receiving proceeds in an amount of not less than 80% of the Fair
Market Valuation of such Real Property Collateral, and (y) with an appraised
Fair Market Valuation exceeding $7,000,000 shall not constitute a Permitted
Disposition, and (p) leases and licenses of any portion of the Real Property
subject to the Synthetic Leases to tenants in the ordinary course of business.
"Permitted Easements" means (a) easements, licenses, rights-of-way and
other rights and privileges in the nature of easements reasonably necessary or
desirable for the use, repair, or maintenance of any Real Property as herein
provided and (b) if required by applicable Governmental Authority, the
dedication or transfer of unimproved portions of any Real Property for road,
highway or other public purposes; so long as, in each case (other than with
respect to Real Property subject to the Synthetic Leases) (i) such grant,
dedication or transfer does not materially impair the value or remaining useful
life of the applicable Real Property or the fair market value of such Real
Property or materially impair or interfere with the use or operations thereof,
(ii) such grant, dedication or transfer, in the Company's business judgment, is
reasonably necessary in connection with the use, maintenance, alteration or
improvement of the applicable Real Property and (iii) such grant, dedication or
transfer will not cause the applicable Real Property or any portion thereof to
fail to comply with the provisions of the Note Documents and all Applicable Law.
"Permitted Holder" means Xxxxxx X. Xxxxx, Xxxx X. Xxxxx, Xxxxx X.
Xxxxx, and their Family Members, and their Family Trusts.
"Permitted Investments" means (a) Investments in cash and Cash
Equivalents, (b) Investments in negotiable instruments for collection, (c)
advances made in connection with purchases of goods or services in the ordinary
course of business, (d) Investments by any Note Party in any other Note Party;
provided, to the extent such Investment is in the form of Indebtedness, such
Indebtedness shall be unsecured and contractually subordinated to the
Obligations and, upon any such relevant Note Party ceasing to be a wholly-owned
Subsidiary of the Company or such Indebtedness being owed to any Person other
than a Note Party, such Note Party shall be deemed to have incurred Indebtedness
not permitted by this clause (d), (e) Investments by U-Haul and Nationwide
Commercial Co. evidenced by the Junior Notes not to exceed the principal amount
outstanding thereunder as of the Issue Date (except for increases in principal
resulting solely from the accrual of interest thereon), (f) payments by U-Haul
and its Subsidiaries of expenses on behalf of SAC Holdings pursuant to the
Management Agreements provided that all such expenses are promptly reimbursed by
the appropriate other parties to the Management Agreements, (g) Investments in
PMSR, PM Preferred or any of its or their Affiliates owned by the Company or any
of its Subsidiaries or SAC Holding solely to the extent
22
required pursuant to the Company's obligations under the Support Party
Agreements, so long as (i) on the date of such Investment, Borrowers' Excess
Availability plus Qualified Cash (as reported by Borrowers pursuant to Section
6.2(a) of the New Credit Agreement) exceeds (A) $35,000,000 plus (B) the amount
of such Investment, as of the date of such payment and as of the end of the
month for each of the preceding consecutive 12 fiscal months immediately
preceding such payment date, (ii) after giving effect to such Investment,
Borrowers' Excess Availability plus Qualified Cash, as reflected in the
Projections (as defined in the New Credit Agreement) most recently delivered to
Trustee pursuant to Section 4.03(c) hereof, is projected to exceed $35,000,000
as of the month end for each of the 12 fiscal months immediately succeeding the
date of such Investment for each of the 12 fiscal months, and (iii) no Event of
Default has occurred and is continuing or would result therefrom, (h) guarantees
by the Company of the obligations of its Subsidiaries that are Note Parties to
the extent such obligations are otherwise permitted hereunder and are consistent
with past practices, (i) payments by U-Haul and its Subsidiaries in the ordinary
course of business and consistent with past practices of certain ordinary course
operating expenses on behalf of any U-Haul Dealer pursuant to a Dealership
Contract, provided that the applicable U-Haul Dealer reimburses U-Haul and its
Subsidiaries for all such expenses in accordance with the provisions of the
Dealership Contract, (j) Hedge Agreements, as permitted hereunder, (k) other
Investments in an aggregate amount not to exceed $5,000,000 per year, and (l)
Investments pursuant to that certain promissory note dated February 12, 1997
from PMSR in favor of U-Haul in the original principal amount of $10,000,000,
with such Indebtedness of PMSR thereunder assumed by PMSI Investors, LLC on or
about November 30, 1999.
"Permitted Liens" means (a) Liens held by the Trustee for the benefit
of the Holders, (b) Liens for unpaid taxes that (i) are not yet delinquent, or
(ii) are the subject of a Permitted Protest, (c) Liens set forth on Schedule P-1
to the New Credit Agreement, (d) (i) Liens on the Synthetic Lease Collateral
arising under the Synthetic Leases and the interests of lessors under operating
leases, and (ii) the interests of the lessor and indenture trustee under the
PMCC Leveraged Lease, (e) purchase money Liens or the interests of lessors in
leased assets under Capital Leases to the extent that such Liens or interests
secure Purchase Money Indebtedness permitted hereunder and so long as such Lien
attaches only to the asset purchased or acquired and the proceeds thereof, (f)
Liens arising by operation of law in favor of warehousemen, landlords, carriers,
mechanics, materialmen, laborers, or suppliers, incurred in the ordinary course
of business and not in connection with the borrowing of money, and which Liens
either (i) are for sums not yet delinquent or (ii) are the subject of Permitted
Protests, (g) Liens arising from deposits made in connection with obtaining
worker's compensation or other unemployment insurance, (h) Liens or deposits to
secure performance of bids, tenders, or leases incurred in the ordinary course
of business and not in connection with the borrowing of money, (i) Liens granted
as security for surety or appeal bonds in connection with obtaining such bonds
in the ordinary course of business, (j) Liens with respect to the Real Property
Collateral that are exceptions to the commitments for title insurance issued in
connection with the Mortgages, as accepted by the Trustee, (k) with respect to
any Real Property, Permitted Easements, (l) Liens arising from judgments and
attachments in connection with court proceedings provided that the attachment or
enforcement of such Liens would not result in an Event of Default hereunder and
such Liens are subject to a Permitted Protest and no material Collateral is
subject to a material risk of loss or forfeiture and the claims in respect of
such Liens are fully covered by insurance (subject to ordinary and customary
deductibles) and a stay of execution pending appeal or proceeding for
23
review is in effect, (m) Liens granted to the New AMERCO Note Lenders pursuant
to the New AMERCO Note Documents on the property described in clauses (b), (c),
(e), (f) and (g) of the definition of "Excluded Assets" set forth in this
Section 1.01, (n) Liens granted to the Bank Lenders' Agent pursuant to the New
Credit Agreement and the other Loan Documents (as defined in the New Credit
Agreement), (o) Liens on Real Property in favor of Oxford as of the Issue Date,
as set forth on Schedule E-1 to the New Credit Agreement, (p) subject to the
provisions of Section 2.7(e) of the New Credit Agreement, Liens on the cash
collateral accounts set forth on Schedule 2.7(e) of the New Credit Agreement,
and (q) Liens arising from the refinancing of the Obligations (as defined in the
New Credit Agreement), which do not result in the creation of additional first
priority Liens in excess of the first priority Liens in existence on the Issue
Date.
"Permitted Protest" means the right of the Company or any of its
Subsidiaries, as applicable, to protest any Lien (other than any such Lien that
secures the Obligations), taxes (other than payroll taxes or taxes that are the
subject of a United States federal tax lien), or rental payment, provided that
(a) a reserve with respect to such obligation is established on such Person's
Books in such amount as is required under GAAP, (b) any such protest is
instituted promptly and prosecuted diligently by the Company or any of its
Subsidiaries, as applicable, in good faith, and (c) while any such protest is
pending, there will be no impairment of the enforceability, validity, or
priority of any of the Trustee's Liens.
"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.
"Personal Property Collateral" means all Collateral other than Real
Property.
"PMCC Like Kind Exchange Lease" means that certain Master Equipment
Lease Agreement dated as of June 30, 2000, between Norwest Bank Minnesota,
National Association, as lessor, and U-Haul Leasing & Sales Co., as lessee, and
all ancillary agreements referenced therein, as all of the foregoing exist on
the Issue Date, and as amended to the extent permitted herein.
"PMCC Leveraged Lease" means that certain Equipment Lease Agreement
(U-Haul Trust No. 96-1) dated as of June 28, 1996 between Fleet National Bank,
as lessor, and U-Haul Leasing & Sales Co., as lessee, and all ancillary
agreements referenced therein, as all of the foregoing exist on the Issue Date,
and as amended to the extent permitted herein.
"PM Preferred" means PM Preferred Properties, L.P., a Texas limited
partnership.
"PMSR" means Private Mini Storage Realty, L.P., a Texas limited
partnership.
"PMSR Agreement" means that certain PMSR Agreement dated as of the
Effective Date among the Company, PMSR, JPMorgan Chase Bank, as agent, and the
Lenders party thereto.
"PPSA" means the Personal Property Security Act, as in effect from time
to time in any applicable Canadian province or territory.
24
"principal" means, with respect to the Notes, the principal of the
Notes.
"Private Placement Legend" means the legend set forth in Section
2.06(g) to be placed on all Class B Notes issued under this Agreement except
where otherwise permitted by the provisions of this Agreement.
"Purchase Money Indebtedness" means Indebtedness (other than the
Obligations, but including Capitalized Lease Obligations), incurred at the time
of, or within 20 days after, the acquisition of any fixed assets for the purpose
of financing all or any part of the acquisition cost thereof.
"PWC Litigation" means that certain claim filed by the Company against
PricewaterhouseCoopers on or about June 5, 2003 in the Superior Court of
Arizona, Maricopa County, No. CV2003-011032, and all related disputes between
the Company and PricewaterhouseCoopers.
"Qualified Cash" means, as of any date of determination, the amount of
unrestricted cash and Cash Equivalents of the Note Parties that is in Deposit
Accounts or in Securities Accounts, or any combination thereof, and after August
15, 2003, which such Deposit Account or Securities Account is the subject of a
Control Agreement and is maintained by a branch office of the bank or securities
intermediary located within the United States.
"Quebec Security Documents" means, collectively, (a) the deed of
hypothec and issue of bonds by each Canadian Subsidiary in favor of the Fonde de
pouvoir creating a hypothec in the principal amount of Cdn$1,320,000,000 in all
the Canadian Subsidiaries' personal (movable) and real (immovable) property, (b)
the delivery order by each Canadian Subsidiary to the Fonde de pouvoir, (c) the
25% demand bond issued by each Canadian Subsidiary to the Trustee and certified
by the Fonde de pouvoir, and (d) the pledge agreement by each Canadian
Subsidiary pledging the 25% demand bond in favor of the Trustee in the form and
substance delivered to Bank Lenders' Agent, with such modifications as are
necessary to reflect Trustee's security interests, second in priority only to
the first priority security interests granted to Bank Lenders' Agent pursuant to
the New Credit Agreement and the other Loan Documents (as defined in the New
Credit Agreement).
"Real Property" means any estates or interests in real property now
owned or hereafter acquired by any Note Party and the improvements thereto.
"Real Property Collateral" means the parcel or parcels of Real Property
identified on Schedule R-1 to the New Credit Agreement and any Real Property
hereafter acquired by a Note Party on which the Trustee has, or any Note Party
is required (in accordance with this Agreement or any other Note Document) to
grant, a Lien.
"Record" means information that is inscribed on a tangible medium or
which is stored in an electronic or other medium and is retrievable in
perceivable form.
"Redeem" means to redeem, repurchase, purchase, defease, retire,
discharge or otherwise acquire or retire for value; and "redemption" shall have
a correlative meaning.
25
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of March 1, 2004, by and among the Company, the Guarantors
and the purchasers of the Class B Notes, as such agreement may be amended,
modified or supplemented from time to time.
"Refinance" means to refinance, repay, prepay, replace, renew or
refund.
"Remedial Action" means all actions taken to (a) clean up, remove,
remediate, contain, treat, monitor, assess, evaluate, or in any way address
Hazardous Materials in the indoor or outdoor environment, (b) prevent or
minimize a release or threatened release of Hazardous Materials so they do not
migrate or endanger or threaten to endanger public health or welfare or the
indoor or outdoor environment, (c) perform any pre-remedial studies,
investigations, or post-remedial operation and maintenance activities, or (d)
conduct any other actions authorized by 42 U.S.C. Section 9601.
"Reorganization Plan" means that certain First Amended Joint Plan of
Reorganization dated November 26, 2003, filed under Chapter 11 of the United
States Bankruptcy Code by the Company and AREC, together with any amendments or
modifications thereto.
"RepWest" means Republic Western Insurance Company, an Arizona
corporation, and its Subsidiaries, whether now existing or hereafter formed.
"Required Holders" means at any time of determination:
(a) if at such time Class B Notes are then outstanding, then (i) the
Holders of at least 75% of the aggregate principal amount of the then
outstanding Class B Notes, and (ii) Holders of a majority in aggregate principal
amount of the Class A Notes then outstanding; and
(b) if at such time there are no Class B Notes outstanding, the Holders
of a majority in aggregate principal amount of the Notes then outstanding.
"Required Lenders" has the meaning ascribed thereto in the New Credit
Agreement.
"Reservation Management System" means the software system known as
"Microres," which is used in connection with customer reservations of U-Haul
products and services.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Office of the Trustee (or any successor group
of the Trustee) or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of such Person's knowledge of
and familiarity with the particular subject.
"Restated SAC Notes Escrow Account" means that certain segregated
Deposit Account or investment account maintained by the Company pursuant to
Section 11.05 of the New AMERCO Note Indenture.
26
"SAC Holding" means, collectively, 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.
"SAC Holding Senior Bond" means the 8.5% senior notes due 2014 in
principal amount of $200,000,000 issued pursuant to the SAC Notes Indenture.
"SAC Notes Indenture" means that certain Indenture with respect to the
issuance of the SAC Holding Senior Bond, dated as of March 15, 2004, among SAC
Holding Corporation, SAC Holding II Corporation and Law Debenture Trust Company
of New York.
"SAC Participation and Subordination Agreement" means that certain
participation and subordination agreement dated as of March 15, 2004, by and
among SAC Holding, the Company, U-Haul, and Law Debenture Trust Company of New
York, as Trustee under the SAC Notes Indenture.
"Sale Date" has the meaning set forth in Section 5.04.
"SEC" means the United States Securities and Exchange Commission and
any successor thereto.
"SEC Filings" means, with respect to any Person, all reports, documents
and other information filed by such Person pursuant to the Securities Act, and
the Securities Exchange Act of 1934, as amended, and all other rules and
regulations promulgated by the SEC, including such Person's filed Form 10-K and
subsequently filed quarterly reports on Form 10-Q and current reports on Form
8-K.
"Securities Account" means a "securities account" as that term is
defined in the Code.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means a Shelf Registration Statement as
defined in the Registration Rights Agreement.
"SSI" means Self-Storage International Holding Corporation, a Nevada
corporation, and any Subsidiary thereof, whether now existing or hereafter
formed.
"Statutory Lien Payments" means all contributions required to be made
by Company and its Subsidiaries pursuant to the Canada Pension Plan Act
(Canada), provincial pension plan contributions, workers compensation
assessments, and employment insurance premiums payable under Applicable Laws.
"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 SEC under the Exchange Act).
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"Stock Pledge Agreement" means, collectively, one or more stock pledge
agreements, in the form and substance similar to those delivered to Bank
Lenders' Agent under the New Credit Agreement (with such modifications as
necessary to reflect the fact that the Trustee's Liens in the Collateral subject
thereto are security interests, second in priority only to the first priority
security interests granted to Bank Lenders' Agent pursuant to the New Credit
Agreement and the other Loan Documents (as defined in the New Credit
Agreement)), executed and delivered in favor of the Trustee by each Note Party
that owns Stock of a Subsidiary of the Company; provided a Stock Pledge
Agreement shall not be required in connection with the Stock of the Insurance
Subsidiaries, the Dormant Subsidiaries, INW, or Storage Realty, L.L.C.
"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, PMSR, PM Preferred, SAC Holding and SSI shall not be deemed
to be Subsidiaries of any Borrower herein.
"Support Party Agreement" means, collectively, (a) that certain Support
Party Agreement dated as of February 28, 2003 by and among the Company and PM
Preferred in favor of GMAC Commercial Holding Corp., as administrative agent, as
amended by the First Amendment to Support Party Agreement dated as of June 13,
2003, and (b) that certain PMSR Agreement to be dated as of the Effective Date,
by and among the Company, PMSR, XX Xxxxxx Xxxxx Bank, as administrative agent,
and lenders signatory thereto, in each case as amended prior to the Issue Date
and after the Issue Date as permitted herein (provided, in each case, such
amendment does not increase the obligations of any Note Party thereunder).
"Supporting Obligation" means any Person's now owned or hereafter
acquired right, title and interest with respect to any "supporting obligation"
as that term is defined in the Code.
"Synthetic Lease Collateral" means (a) the Real Property and Real
Property interests leased under the Synthetic Leases and all structures,
buildings and other immovable improvements located on such Real Property (the
"Synthetic Lease Properties"); (b) all equipment, machinery, apparatus,
fittings, furniture, fixtures and other property of every kind and nature
whatsoever now or hereafter affixed to any portion of the Synthetic Lease
Properties or which is used for the storage of property of storage customers of
any Synthetic Leases under any Assigned Storage Agreements (defined below)
(excluding Vehicles), and which are now owned or hereafter acquired by any
lessor under any Synthetic Lease or in which any such lessor has or shall have
an interest, and all appurtenances and additions thereto and substitutions
therefor; (c) all storage rental agreements, leases and licenses with respect to
the Synthetic Lease Properties now or hereinafter entered into and all
amendments, supplements and modifications thereto (collectively, the "Assigned
Storage Agreements"); (d) all rents, maintenance fees, advance fees and
deposits, security deposits and prepaid amounts, income, receipts, issues,
profits and revenues arising from the Synthetic Lease Properties, (e) to the
extent arising from Assigned Storage Agreements or other rights to payment for
storage space at the Synthetic Lease Properties by storage customers, "general
intangibles" (including "payment intangibles") and "accounts" (as such terms are
defined in the Code), and other rights to payment for storage space at the
Synthetic Lease Properties by storage customers, (f) license and concession
fees, proceeds
28
and other benefits to which any Synthetic Lessee or any agent of a Synthetic
Lessee may now or hereafter be entitled with respect to the Assigned Storage
Agreements; (g) all books, records, writings, data bases, and information
relating to, used or useful in connection with, evidencing, embodying,
incorporating or referring to, any of the foregoing; (h) any award or
compensation or insurance payment or other proceeds to which any Synthetic
Lessee may become entitled by reason of its interest in the Synthetic Lease
Properties; and (i) all products, offspring, rents, issues, profits, returns,
income and Proceeds (as defined in the Code) of and from any and all of the
foregoing.
"Synthetic Lease Properties" has the meaning set forth in the
definition of "Synthetic Lease Collateral".
"Synthetic Leases" means, collectively, (i) the Amended and Restated
Master Lease dated as of March 15, 2004 between AREC, as lessee, and BMO Global
Capital Solutions, Inc., as lessor, and any other documents, agreements,
mortgages, deeds of trust and other instruments executed in connection
therewith, (ii) that certain Second Amended and Restated Master Lease and
Open-End Mortgage dated as of March 15, 2004 among U-Haul and AREC, as lessees,
the various Lessors, identified therein, as lessor, and BMO Global Capital
Solutions, Inc. as Agent Lessor for the Lessors, and any documents, agreements,
mortgages, deeds of trust, and other instruments executed in connection
therewith, and (iii) that certain Canadian U-Haul Master Lease dated as of April
5, 2001 between Computershare Trust Company of Canada, as successor to Montreal
Trust Company of Canada, and U-Haul (Canada), and any documents, agreements,
mortgages, deeds of trust, and other instruments executed in connection
therewith, each as may be subsequently amended, restated or refinanced to the
extent permitted hereunder.
"Synthetic Lessee" means any of AREC, U-Haul and U-Haul (Canada) and
any of their respective successors in interest as lessees under the Synthetic
Leases that may succeed to such interests in accordance with this Agreement and
the applicable Synthetic Leases.
"3.08(b) Account" means that certain segregated Deposit Account or
investment account maintained by the Company at The Bank of New York pursuant to
Section 3.08(b) of the New AMERCO Note Indenture.
"TIA" means the Trust Indenture Act of 1939, as amended.
"TRAC Lease Transaction" means any operating or capital lease (as
determined in accordance with GAAP) entered into by any Note Party pursuant to a
"Terminal Rental Adjustment Clause" lease (including, without limitation, the
PMCC Like Kind Exchange Lease) whereby (a) (i) the ownership of a Vehicle that
is owned by such Note Party is transferred to a lessor within 130 days of the
acquisition of such Vehicle or (ii) the ownership of a Vehicle is transferred to
a lessor by someone other than a Note Party, and (b) the Vehicle so transferred
is leased back to the Note Party by such lessor.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Agreement and
thereafter means the successor serving hereunder.
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"Trustee's Liens" means the Liens granted by the Company and the
Guarantors to the Trustee, for the benefit of the Holders of the Notes, under
this Agreement, the Security Documents and the other Note Documents.
"U-Haul" means U-Haul International, Inc., a Nevada corporation.
"U-Haul (Canada)" means U-Haul Co. (Canada) Ltd. U-Haul Co. (Canada)
Ltee, an Ontario corporation.
"U-Haul Dealer" means any Person that leases Vehicles on behalf of
U-Haul in the ordinary course of business pursuant to a Dealership Contract, as
identified on the Dealer List.
"USA Patriot Act" means the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Pub. L. No. 107-56, 115 Stat. 272 (2001), as the same has been, or shall
hereafter be, renewed, extended, amended or replaced.
"U.S. Government Obligations" means direct non-callable obligations of,
or obligations guaranteed by, the United States of America for the payment of
which guarantee or obligations the full faith and credit of the United States is
pledged.
"Vehicle" or "Vehicles" means any vehicle (including any motor
vehicle), trailer or other asset of any Note Party represented by a certificate
of title.
"WP Xxxxx Transaction" means the transaction, in form and substance
reasonably satisfactory to Required Lenders, whereby UH Storage (DE) Limited
Partnership, a Delaware limited partnership, or other Affiliate of W.P. Xxxxx &
Co., LLC, will acquire the Real Property that is subject to the Synthetic Leases
(excluding Real Property located in Canada) and such Synthetic Leases shall be
paid in full and terminated, all as more fully set forth on Schedule W-1 to the
New Credit Agreement.
1.02 Other Definitions.
Defined in
Term Section
---- -------
"Additional Documents" 11.09
"Authentication Order" 2.02
"Covenant Defeasance" 8.03
"DTC" 2.03
"Event of Default" 6.01
"Fonde de pouvoir" 11.16
"Guaranteed Obligations" 10.01
"Legal Defeasance" 8.02
"Paying Agent" 2.03
"Registrar" 2.03
"Sale Date" 5.04
"Security Documents" 11.01
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1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Agreement refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Agreement.
The following TIA terms used in this Agreement have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Agreement;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes and the Note Guarantees means the Company and
the Guarantors, respectively, and any successor obligor upon the Notes and the
Note Guarantees, respectively.
All other terms used in this Agreement that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
Terms defined under the New Credit Agreement and referenced herein
shall have the meanings ascribed in the New Credit Agreement as of the date
hereof, notwithstanding any later modification or termination of the New Credit
Agreement, unless such modification is made in accordance with Article IX
hereof. Amendments to such definitions as used herein may only be made in
accordance with Article IX hereof.
1.04 Accounting Terms; GAAP.
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that for purposes of determining compliance
with any covenant set forth in Article V, such terms shall be construed in
accordance with GAAP as in effect on the date of this Agreement applied on a
basis consistent with the application used in preparing the Borrowers' audited
financial statements referred to in Section 4.04. If any change in accounting
principles from those used in the preparation of the audited financial
statements referred to in Section 4.04 hereafter occasioned by the promulgation
of any rule, regulation, pronouncement or opinion by or required by the
Financial Accounting Standards Board (or successors thereto or agencies with
similar functions) would result in a change in the method of calculation of
financial covenants, standards or terms found in Article I or Article V, except
as provided in Section 9.07, the parties hereto agree to enter into negotiations
in order to amend such provisions so as to equitably reflect such changes with
the desired result that the criteria for evaluating the Company's financial
condition shall be the same after such change as if such change had not been
made; provided, however, the parties hereto agree to construe all terms of an
accounting or financial nature in accordance with GAAP as in effect prior to any
such change in accounting principles until the parties hereto have amended the
applicable provisions of this Agreement.
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1.05 Code.
Any terms used in this Agreement that are defined in the Code shall be
construed and defined as set forth in the Code unless otherwise defined herein.
1.06 Construction.
Unless the context of this Agreement or any other Note Document clearly
requires otherwise, references to the plural include the singular, references to
the singular include the plural, the term "including" is not limiting, and the
term "or" has, except where otherwise indicated, the inclusive meaning
represented by the phrase "and/or." The words "hereof," "herein," "hereby,"
"hereunder," and similar terms in this Agreement or any other Note Document
refer to this Agreement or such other Note Document, as the case may be, as a
whole and not to any particular provision of this Agreement or such other Note
Document, as the case may be. Section, subsection, clause, schedule, and exhibit
references herein are to this Agreement unless otherwise specified. Any
reference in this Agreement or in the other Note Documents to any agreement,
instrument, or document shall include all alterations, amendments, changes,
extensions, modifications, renewals, replacements, substitutions, joinders, and
supplements, thereto and thereof, as applicable (subject to any restrictions on
such alterations, amendments, changes, extensions, modifications, renewals,
replacements, substitutions, joinders, and supplements set forth herein). Any
reference herein to any Person shall be construed to include such Person's
successors and assigns. Any requirement of a writing contained herein or in the
other Note Documents shall be satisfied by the transmission of a Record and any
Record transmitted shall constitute a representation and warranty as to the
accuracy and completeness of the information contained therein.
1.07 Schedules and Exhibits.
All of the schedules and exhibits attached to this Agreement, together
with any amendments, restatements, supplements, or other modifications to such
schedules and exhibits permitted hereunder shall be deemed incorporated herein
by reference.
ARTICLE II
THE NOTES
2.01 Form and Dating.
(a) General. The Class A Notes and Class B Notes and the related
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A and Exhibit B hereto, respectively. Each Note shall include the Note
Guarantee in the form of Exhibit C attached hereto, executed by each of the
Guarantors existing on the date of the issuance of such Note, the terms of which
are incorporated in and made a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or usage
(provided that any such notation, legend, or endorsement is in a form reasonably
acceptable to the Required Holders). Each Note shall be dated the date of its
authentication. The Notes shall be in denominations of $1 and integral multiples
thereof. On the Issue Date, the purchasers of the Class B Notes shall be issued
Class B Definitive Notes.
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The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Agreement and the Company, the
Guarantors and the Trustee, by their execution and delivery of this Agreement,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Agreement, the provisions of this Agreement shall govern and be
controlling.
(b) Global Notes. Class A Notes and Class B Notes issued in global form
shall be substantially in the form of Exhibit A and Exhibit B attached hereto,
respectively (including the Global Note Legend thereon and the "Schedule of
Exchanges of Interests in the Global Note" attached thereto). Class A Notes and
Class B Notes issued in definitive form shall be substantially in the form of
Exhibit A and Exhibit B attached hereto, respectively (but without the Global
Note Legend thereon and without the "Schedule of Exchanges of Interests in the
Global Note" attached thereto). Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall provide that it
shall represent the aggregate principal amount of outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges and redemptions. Any endorsement of a Global
Note to reflect the amount of any increase or decrease in the aggregate
principal amount of outstanding Notes represented thereby shall be made by the
Trustee or the Depositary Custodian, at the direction of the Trustee, in
accordance with instructions given by the Holder thereof as required by Section
2.06 hereof.
2.02 Execution and Authentication.
An Officer shall sign the Notes for the Company by manual or facsimile
signature, and attested by another Officer by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Note has
been authenticated under this Agreement. The form of Trustee's certificate of
authentication of the Notes shall be substantially as set forth in Exhibit A or
Exhibit B, as applicable, attached hereto.
The Trustee shall authenticate Notes upon a written order of the
Company in the form of an Officer's Certificate of the Company (an
"Authentication Order"). Each such written order shall specify the amount of
Notes to be authenticated and the date on which the Notes are to be
authenticated, and whether the Notes are to be issued as certificated Notes or
Global Notes or such other information as the Trustee may reasonably request. In
addition, the first such written order from the Company shall be accompanied by
a reliance letter of counsel of the Company in a form reasonably satisfactory to
the Trustee.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Agreement to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or the
Company.
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2.03 Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent")
within the City and State of New York. The Registrar shall keep a written
register with the name and address of each Holder and the principal amount and
stated interest of each Holder's Note, and of the transfer and exchange of each
Note. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent. The Company may change
any Paying Agent or Registrar with the prior written consent of the Required
Holders. The Company shall notify the Trustee in writing of the name and address
of any Agent not a party to this Agreement. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as
such. The Company or any of its Subsidiaries may act as Paying Agent or
Registrar.
The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Depositary Custodian with respect to the Global
Notes.
2.04 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, fees or Additional Interest, if any, or interest on the
Notes, and will notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA Section 312(a).
2.06 Transfer and Exchange.
34
(a) Transfer and Exchange of Global Notes. A Global Note may not be
transferred as a whole except by the Depositary to a nominee of the Depositary,
by a nominee of the Depositary to the Depositary or to another nominee of the
Depositary, or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary. All Global Notes will be exchanged by
the Company for Definitive Notes if (i) the Company delivers to the Trustee
notice from the Depositary that it is unwilling or unable to continue to act as
Depositary or that it is no longer a clearing agency registered under the
Exchange Act and, in either case, a successor Depositary is not appointed by the
Company within 120 days after the date of such notice from the Depositary or
(ii) the Company in its sole discretion determines that the Global Notes (in
whole but not in part) should be exchanged for Definitive Notes and delivers a
written notice to such effect to the Trustee. Upon the occurrence of either of
the preceding events in (i) or (ii) above, Definitive Notes shall be issued in
such names as the Depositary shall instruct the Trustee. Global Notes also may
be exchanged or replaced, in whole or in part, as provided in Sections 2.07 and
2.10 hereof. Every Note authenticated and delivered in exchange for, or in lieu
of, a Global Note or any portion thereof, pursuant to this Section 2.06 or
Section 2.07 or 2.10 hereof, shall be authenticated and delivered in the form
of, and shall be, a Global Note. A Global Note may not be exchanged for another
Note other than as provided in this Section 2.06(a), however, beneficial
interests in a Global Note may be transferred and exchanged as provided in
Section 2.06(b), (c) or (f) hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global Notes.
The transfer and exchange of beneficial interests in the Global Notes shall be
effected through the Depositary, in accordance with the provisions of this
Agreement and the Applicable Procedures. Beneficial interests in the Class B
Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global Note.
Beneficial interests in any Class B Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest
in the same Class B Global Note in accordance with the transfer
restrictions set forth in the Private Placement Legend. Beneficial
interests in any Class A Global Note may be transferred to Persons who
take delivery thereof in the form of a beneficial interest in a Class A
Global Note. No written orders or instructions shall be required to be
delivered to the Registrar to effect the transfers described in this
Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial Interests
in Global Notes. In connection with all transfers and exchanges of
beneficial interests that are not subject to Section 2.06(b)(i) above,
the transferor of such beneficial interest must deliver to the
Registrar either (A) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance with the
Applicable Procedures directing the Depositary to credit or cause to be
credited a beneficial interest in another Global Note in an amount
equal to the beneficial interest to be transferred or exchanged and (2)
instructions given in accordance with the Applicable Procedures
containing information regarding the Participant account to be credited
with such increase or (B) (1) a written order from a Participant or an
Indirect Participant given to the Depositary in accordance
35
with the Applicable Procedures directing the Depositary to cause to be
issued a Definitive Note in an amount equal to the beneficial interest
to be transferred or exchanged and (2) instructions given by the
Depositary to the Registrar containing information regarding the Person
in whose name such Definitive Note shall be registered to effect the
transfer or exchange referred to in (1) above. Upon consummation of an
Exchange Offer by the Company in accordance with Section 2.06(f)
hereof, the requirements of this Section 2.06(b)(ii) shall be deemed to
have been satisfied upon receipt by the Registrar of the instructions
contained in the Letter of Transmittal delivered by the Holder of such
beneficial interests in Class B Global Notes. Upon satisfaction of all
of the requirements for transfer or exchange of beneficial interests in
Global Notes contained in this Agreement and the Notes or otherwise
applicable under the Securities Act, the Trustee shall adjust the
principal amount of the relevant Global Note(s) pursuant to Section
2.06(h) hereof.
(iii) Transfer of Beneficial Interests in a Class B Global
Note to Another Restricted Global Note. A beneficial interest in any
Class B Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Class B Global
Note if the transfer complies with the requirements of Section
2.06(b)(ii) above and the Registrar receives from the holder of such
beneficial interest a certificate if the Registrar so requests or if
the Applicable Procedures so require, an opinion of counsel in form
reasonably acceptable to the Registrar to the effect that such transfer
is in compliance with the Securities Act.
(iv) Transfer and Exchange of Beneficial Interests in a Class
B Global Note for Beneficial Interests in the Class A Global Note. A
beneficial interest in any Class B Global Note may be exchanged by any
holder thereof for a beneficial interest in a Class A Global Note or
transferred to a Person who takes delivery thereof in the form of a
beneficial interest in a Class A Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above
and:
(1) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights Agreement
and the holder of the beneficial interest to be transferred, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(2) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement; or
(3) the Registrar receives from the holder of such
beneficial interest in a Class B Global Note; and if the Registrar so
requests or if the Applicable Procedures so require, an opinion of
counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the Class
B Global Note are no longer required in order to maintain compliance
with the Securities Act.
36
If any such transfer is effected pursuant to subparagraph (B) or (C)
above at a time when a Class A Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more Class A Global
Notes in an aggregate principal amount equal to the aggregate principal amount
of beneficial interests transferred pursuant to subparagraph (B) or (C) above.
Beneficial interests in a Class A Global Note cannot be exchanged for,
or transferred to Persons who take delivery thereof in the form of, a beneficial
interest in a Class B Global Note.
(c) Transfer or Exchange of Beneficial Interest in Global Notes for
Definitive Notes.
(i) Beneficial Interests in Class B Global Notes to Class B
Definitive Notes. If any holder of a beneficial interest in a Class B
Global Note proposes to exchange such beneficial interest for a Class B
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Class B Definitive Note, then,
upon receipt by the Registrar of documentation satisfactory to it,
including without limitation, any legal opinions or certifications, the
Trustee shall cause the aggregate principal amount of the applicable
Global Note to be reduced accordingly pursuant to Section 2.06(h)
hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive
Note issued in exchange for a beneficial interest in a Class B Global
Note pursuant to this Section 2.06(c) shall be registered in such name
or names and in such authorized denomination or denominations as the
holder of such beneficial interest shall instruct the Registrar through
instructions from the Depositary and the Participant or Indirect
Participant. The Trustee shall deliver such Definitive Notes to the
Persons in whose names such Notes are so registered. Any Definitive
Note issued in exchange for a beneficial interest in a Class B Global
Note pursuant to this Section 2.06(c)(i) shall bear the Private
Placement Legend and shall be subject to all restrictions on transfer
contained therein.
(ii) Beneficial Interests in Class B Global Notes to Class A
Definitive Notes. A holder of a beneficial interest in a Class B Global
Note may exchange such beneficial interest for a Class A Definitive
Note or may transfer such beneficial interest to a Person who takes
delivery thereof in the form of a Class A Definitive Note only if:
(1) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights Agreement
and the holder of such beneficial interest, in the case of an exchange,
or the transferee, in the case of a transfer, certifies in the
applicable Letter of Transmittal that it is not (1) a broker-dealer,
(2) a Person participating in the distribution of the Exchange Notes or
(3) a Person who is an affiliate (as defined in Rule 144) of the
Company;
(2) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement; or
(3) the Registrar receives, an opinion of counsel in
form reasonably acceptable to the Registrar to the effect that such
exchange or transfer is in compliance with the Securities Act and that
the restrictions on transfer contained herein and in the
37
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Beneficial Interests in Class A Global Notes to Class A
Definitive Notes. If any holder of a beneficial interest in a Class A
Global Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.06(h) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest pursuant to this Section
2.06(c)(iii) shall not bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial Interests
in Global Notes.
(i) Class B Definitive Notes to Beneficial Interests in Class
B Global Notes. If any Holder of a Class B Definitive Note proposes to
exchange such Note for a beneficial interest in a Class B Global Note
or to transfer such Class B Definitive Note to a Person who takes
delivery thereof in the form of a beneficial interest in a Class B
Global Note, then, upon receipt by the Registrar of documentation
satisfactory to it, including, without limitation, any legal opinions
or certifications, the Trustee shall cancel the Class B Definitive
Note, and increase or cause to be increased the aggregate principal
amount of the Class B Global Note.
(ii) Class B Definitive Notes to Beneficial Interests in Class
A Global Notes. A Holder of a Class B Definitive Note may exchange such
Note for a beneficial interest in a Class A Global Note or transfer
such Class B Definitive Note to a Person who takes delivery thereof in
the form of a beneficial interest in a Class A Global Note only if:
(1) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case of an exchange, or the transferee, in the
case of a transfer, certifies in the applicable Letter of Transmittal
that it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(2) such transfer is effected pursuant to the Shelf
Registration Statement in accordance with the Registration Rights
Agreement; or
38
(3) the Registrar receives or if the Registrar so
requests or if the Applicable Procedures so require, an opinion of
counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Trustee shall cancel the Class B Definitive Notes and
increase or cause to be increased the aggregate principal amount of the Class A
Global Note.
(iii) Class A Definitive Notes to Beneficial Interests in
Class A Global Notes. A Holder of a Class A Definitive Note may
exchange such Note for a beneficial interest in a Class A Global Note
or transfer such Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Class A Global Note
at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the applicable Class A Definitive
Note and increase or cause to be increased the aggregate principal
amount of one of the Class A Global Notes.
If any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to subparagraphs (ii)(A), (ii)(B) or (iii) above
at a time when a Global Note has not yet been issued, the Company shall issue
and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate one or more Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive Notes.
Upon request by a Holder of Definitive Notes and such Holder's compliance with
the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(i) Class B Definitive Notes to Class B Definitive Notes. Any
Class B Definitive Note may be transferred to and registered in the
name of Persons who take delivery thereof in the form of a Class B
Definitive Note if the Registrar receives such legal opinions and
certifications as it determines is reasonably necessary to ensure that
such exchange or transfer is in compliance with the Securities Act.
(ii) Class B Definitive Notes to Class A Definitive Notes. Any
Class B Definitive Note may be exchanged by the Holder thereof for a
Class A Definitive Note or transferred to a Person or Persons who take
delivery thereof in the form of a Class A Definitive Note if:
(1) such exchange or transfer is effected pursuant to
the Exchange Offer in accordance with the Registration Rights Agreement
and the Holder, in the case
39
of an exchange, or the transferee, in the case of a transfer, certifies
in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(2) any such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement; or
(3) the Registrar receives or if the Registrar so
requests, an opinion of counsel in form reasonably acceptable to the
Company to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
(iii) Class A Definitive Notes to Class A Definitive Notes. A
Holder of Class A Definitive Notes may transfer such Notes to a Person
who takes delivery thereof in the form of a Class A Definitive Note.
Upon receipt of a request to register such a transfer, the Registrar
shall register the Class A Definitive Notes pursuant to the
instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02, the
Trustee shall authenticate (i) one or more Class A Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial interests in
the Class B Global Notes tendered for acceptance by Persons that certify in the
applicable Letters of Transmittal that (x) they are not broker-dealers, (y) they
are not participating in a distribution of the Exchange Notes and (z) they are
not affiliates (as defined in Rule 144) of the Company, and accepted for
exchange in the Exchange Offer and (ii) Class A Definitive Notes in an aggregate
principal amount equal to the principal amount of the Class B Definitive Notes
accepted for exchange in the Exchange Offer. Concurrently with the issuance of
such Notes, the Trustee shall cause the aggregate principal amount of the
applicable Class B Global Notes to be reduced accordingly, and the Company shall
execute and the Trustee shall authenticate and deliver to the Persons designated
by the Holders of Class B Definitive Notes so accepted Class A Definitive Notes
in the appropriate principal amount.
(g) Legends.
(i) The following legend shall appear on the face of all
Global Notes issued under this Agreement:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE
40
EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT TO SECTION 2.06(a)
OF THE INDENTURE, (III) THIS GLOBAL NOTE MAY BE DELIVERED TO
THE TRUSTEE FOR CANCELLATION PURSUANT TO SECTION 2.11 OF THE
INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE TRANSFERRED TO A
SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN CONSENT OF THE
COMPANY."
(ii) The following legend shall appear on all Class B Notes:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, NOR UNDER ANY STATE SECURITIES LAW AND MAY
NOT BE PLEDGED, SOLD, ASSIGNED OR TRANSFERRED UNLESS (I) A
REGISTRATION STATEMENT WITH RESPECT THERETO IS EFFECTIVE UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"),
AND ANY APPLICABLE STATE SECURITIES LAW REQUIREMENTS HAVE BEEN
MET OR (II) EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS
UNDER THE SECURITIES ACT AND THE REGISTRATION OR QUALIFICATION
REQUIREMENTS OF APPLICABLE STATE SECURITIES LAWS ARE
AVAILABLE."
(h) Cancellation and/or Adjustment of Global Notes. At such time as all
beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges, the
Company shall execute and the Trustee shall authenticate Global Notes
and Definitive Notes upon the Company's order or at the Registrar's
request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 4.15 and 9.05
hereof).
41
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Agreement, as
the Global Notes or Definitive Notes surrendered upon such registration
of transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 hereof and ending
at the close of business on the day of selection, (B) to register the
transfer of or to exchange any Note so selected for redemption in whole
or in part, except the unredeemed portion of any Note being redeemed in
part or (C) to register the transfer of or to exchange a Note between a
record date and the next succeeding interest payment date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and
none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(viii) All certifications, certificates and opinions of
counsel required to be submitted to the Registrar pursuant to this
Section 2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.
(ix) Each Holder agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer,
exchange or assignment by such Holder of such Xxxxxx's Note in
violation of any provision of this Agreement and/or applicable Unites
States federal or state securities law.
(x) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer
imposed under this Agreement or under applicable law with respect to
any transfer of any interest in any Note (including any transfers
between or among Depositary Participants or beneficial owners of
interests in any Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the terms
of, this Agreement, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
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2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Note if the requirements
of this Agreement are met. An indemnity bond must be supplied by the Holder that
is sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Agreement equally and
proportionately with all other Notes duly issued hereunder.
2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes as to which a Responsible Officer of the Trustee has actual knowledge
are so owned shall be so disregarded.
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The Company shall notify the Trustee and the Holders in writing
promptly upon the acquisition of any Notes by the Company or any Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company.
2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall be reasonably acceptable
to the Trustee. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate Definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of
this Agreement.
2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall dispose of
canceled Notes in accordance with its procedures for the disposition of canceled
securities in effect as of the date of such disposition (subject to the record
retention requirement of the Exchange Act). Certification of the disposition of
all canceled Notes shall be delivered to the Company. The Company may not issue
new Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company shall notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date; provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) shall mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
2.13 CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, however, that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on
44
the Notes, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the "CUSIP" numbers.
2.14 Deposit of Moneys.
Subject to Section 3.05, prior to 11:00 a.m. (New York, New York time)
on each date on which the principal of, premium, fees and Additional Interest,
if any, and interest on the Notes are due, the Company shall deposit with the
Trustee or Paying Agent in immediately available funds money sufficient to make
cash payments, if any, due on such date in a timely manner which permits the
Trustee or such Paying Agent to remit payment to the Holders on such date.
ARTICLE III
REDEMPTION AND PREPAYMENT
3.01 Notices to the Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date, an
Officer's Certificate setting forth (i) the clause of this Agreement pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Notes to be redeemed and (iv) the redemption price.
3.02 Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee shall select the Notes to be redeemed
or purchased among the Holders of the Notes in compliance with the requirements
of the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not so listed, on a pro rata basis, by lot or in
accordance with any other method the Trustee considers fair and appropriate. In
the event of partial redemption by lot, the particular Notes to be redeemed
shall be selected, unless otherwise provided herein, not less than 30 nor more
than 60 days prior to the redemption date by the Trustee from the outstanding
Notes not previously called for redemption. Further, in the event of a partial
redemption in accordance with Section 3.07 hereof, selection of the Notes or
portions thereof for redemption shall be made by the Trustee only on a pro rata
basis or on as nearly a pro rata basis as is practicable (subject to the
procedures of the DTC), unless such method is otherwise prohibited.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1. Except as provided in the preceding
sentence, provisions of this Agreement that apply to Notes called for redemption
also apply to portions of Notes called for redemption.
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3.03 Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address.
The notice shall identify the Notes (including the CUSIP number, if
any) to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
(c) if any Note is being redeemed in part, the portion of the principal
amount of such Note to be redeemed and that, after the redemption date upon
surrender of such Note, a new Note or Notes in principal amount equal to the
unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the Paying
Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph of the Notes and/or Section of this Agreement
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or accuracy of
the CUSIP number, if any, listed in such notice or printed on the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided that the Company
shall have delivered to the Trustee, at least 15 days prior to the date of the
mailing of such notice, an Officer's Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice
as provided in this Section 3.03.
3.04 Effect of Notice of Redemption.
Once a notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price, including any premium plus accrued and
unpaid interest through the redemption date. A notice of redemption may not be
conditional.
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3.05 Deposit of Redemption Price.
One Business Day prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and accrued interest on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption price of, and accrued interest on,
all Notes to be redeemed.
If the Company complies with the provisions of the preceding paragraph,
on and after the redemption date, interest shall cease to accrue on the Notes or
the portions of Notes called for redemption. If a Note is redeemed on or after
an interest record date but on or prior to the related interest payment date,
then any accrued and unpaid interest shall be paid to the Person in whose name
such Note was registered at the close of business on such record date. If any
Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal, from the redemption date until
such principal is paid, and to the extent lawful on any interest not paid on
such unpaid principal, in each case at the rate provided in the Notes and in
Section 4.01 hereof.
3.06 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Trustee shall authenticate
for the Holder at the expense of the Company a new Note equal in principal
amount to the unredeemed portion of the Note surrendered.
3.07 Optional Redemption.
(a) The Company shall not have the option to redeem the Notes pursuant
to this Section 3.07 prior to March 16, 2005. On or after March 16, 2005, the
Company shall have the option to redeem the Notes, in whole or in part, at the
redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest thereon to the applicable redemption
date, if redeemed during the 12-month period beginning on March 16 of the years
indicated below:
Year Percentage
---- ----------
2005 105.50%
2006 104.50%
2007 101.00%
2008 and thereafter 100.00%
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(b) Any redemption pursuant to this Section 3.07 shall be made pursuant
to the provisions of Sections 3.01 through 3.06 hereof.
3.08 Mandatory Redemption.
Neither the Company nor the Guarantors shall be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
ARTICLE IV
AFFIRMATIVE COVENANTS
Each Note Party covenants and agrees that, until payment in full and
satisfaction or discharge of all Obligations hereunder, it will, and it will
cause each of its Subsidiaries to, do all of the following.
4.01 Payment of Notes.
The Company shall pay or cause to be paid the principal of, premium, if
any, fees and Additional Interest, if any, and interest on the Notes on the
dates and in the manner provided in this Agreement and in the Notes. Principal,
premium, fees, Additional Interest, if any, and interest shall be considered
paid on the date due if the Paying Agent, if other than any Note Party, or any
affiliate or subsidiary thereof, holds as of 12:00 noon Eastern Time on the due
date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, fees,
Additional Interest, if any, and interest then due and the Paying Agent has not
received instructions from any Note Party, any affiliate or subsidiary thereof,
not to make such payment or is not prohibited from paying such payments to the
Holders of the Notes pursuant to this Agreement and the Notes.
Upon the occurrence and during the continuation of an Event of Default
and in any event from and after the maturity hereof, the principal amount of the
Notes and all other Obligations owing under the Note Documents (whether overdue
premium or installments or interest or otherwise) shall bear, and the Company
shall pay from time to time on demand, interest at a rate per annum that is two
percentage points (2.0%) in excess of the per annum rate otherwise applicable
hereunder and the other Note Documents.
In addition to and not in substitution of the foregoing, Additional
Interest shall accrue, and the Company shall pay the same as and when due, in
accordance with the Indenture and the other Note Documents.
4.02 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Agreement may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to
48
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.03.
4.03 Accounting System.
The Company shall maintain, and shall cause each of the other Borrowers
and the Subsidiaries of each Borrower to maintain, a system of accounting that
enables such Persons to produce financial statements in accordance with GAAP and
maintain records pertaining to the Collateral that contain information as from
time to time may be required hereunder.
4.04 Financial Statements, Reports, Certificates.
The Company shall deliver to the Trustee:
(a) as soon as available, but in any event within 45 days
after the end of each month during each of the Company's fiscal years,
(i) a Company prepared Consolidated balance sheet,
income statement, and statement of cash flow covering the
Company's and its Subsidiaries' operations during such month
and the fiscal year to date, together with a comparison of
such financial statements to (A) Company's Projections (as
defined in the New Credit Agreement) delivered prior to the
Issue Date or pursuant to Section 4.04(c) and (B) the
Consolidated balance sheet, income statement, and statement of
cash flow covering Company's and its Subsidiaries' operations
for such corresponding period in the immediately preceding
fiscal year,
(ii) a company prepared schedule detailing Company's
Consolidated EBITDA as of the end of each month for the
13-month period then ended,
(iii) a certificate signed by a chief financial
officer or a principal accounting officer of the Company to
the effect that:
(A) the financial statements and other
financial information delivered hereunder have been
prepared in accordance with GAAP (except for the lack
of footnotes and being subject to year-end audit
adjustments)
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and fairly present in all material respects the
financial condition of the Company and its
Subsidiaries,
(B) the representations and warranties of
Borrowers contained in the New Credit Agreement and
the other Loan Documents (as defined in the New
Credit Agreement) are true and correct in all
material respects on and as of the date of such
certificate, as though made on and as of such date
(except to the extent that such representations and
warranties relate solely to an earlier date), and
(C) there does not exist any condition or
event that constitutes a Default or Event of Default
(or, to the extent of any non-compliance, describing
such non-compliance as to which he or she may have
knowledge and what action the Note Parties have
taken, are taking, or propose to take with respect
thereto); and
(iv) for each month that is the date on which a
financial covenant in Section 5.19 is to be tested, a
Compliance Certificate (as defined in the New Credit
Agreement) demonstrating, in reasonable detail, compliance at
the end of such period with the applicable financial covenants
contained in Section 5.19, together with a reconciliation of
the company prepared Consolidated balance sheet, income
statement, and statement of cash flow for Company and its
Subsidiaries for the 3-month period then ended to the audited
financial statements contained in the 4 most recent Form 10-Q
quarterly reports and the most recent Form 10-K annual report
filed by Company and its Subsidiaries,
(b) as soon as available, but in any event within 120 days
after the end of each of Company's fiscal years,
(i) Consolidated financial statements of the Company
and its Subsidiaries for each such fiscal year, audited by
nationally recognized independent certified public accountants
and certified, without any qualifications, by such accountants
to have been prepared in accordance with GAAP (such audited
financial statements to include a balance sheet, income
statement, and statement of cash flow and, if prepared, such
accountants' letter to management), and
(ii) a certificate of such accountants addressed to
the Trustee stating that such accountants do not have
knowledge of the existence of any Default or Event of Default
under Section 6.01,
(c) as soon as available, but in any event within 30 days
prior to the start of each of Company's fiscal years, copies of Company's
Projections (as defined in the New Credit Agreement), for the forthcoming 3
years, year by year, and for the forthcoming fiscal year, month by month,
certified by the chief financial officer of Company (i) as being such officer's
good faith best estimate of the financial performance of Company and its
Subsidiaries on a
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Consolidated basis during the period covered thereby and (ii) as being in form
and substance (including as to scope and underlying assumptions) as delivered to
the Bank Lenders' Agent,
(d) if, when and to the extent filed by any Note Party with
the SEC or any other Governmental Authority,
(i) Form 10-Q quarterly reports, Form 10-K annual
reports, and Form 8-K current reports,
(ii) any other filings made by any Note Party with
the SEC,
(iii) copies of Borrowers' federal income tax
returns, and any amendments thereto, filed with the IRS, and
(iv) any other information that is provided by the
Company to its shareholders generally,
(e) if and when filed by any Note Party and if requested by
Trustee, reasonably satisfactory evidence of payment of applicable excise and
property taxes in each jurisdictions in which (i) any Note Party conducts
business, owns real property or is required to pay any such excise or real
property tax, (ii) where any Note Party's failure to pay any such applicable
excise or property tax would result in a Lien on the properties or assets of any
Note Party, or (iii) where any Note Party's failure to pay any such applicable
excise tax reasonably could be expected to result in a Material Adverse Change,
(f) promptly after the commencement thereof, notice of all
actions, suits or proceedings brought by or against any Note Party before any
Governmental Authority that, if determined adversely to such Note Party, could
reasonably be expected to result in a Material Adverse Change,
(g) as soon as a Borrower has knowledge of any event or
condition that constitutes a Default or an Event of Default, notice thereof and
a statement of the curative action that Borrowers propose to take with respect
thereto,
(h) as soon as a Borrower has actual knowledge of any event or
condition that constitutes a default or an event of default under the New AMERCO
Note Documents, the New Credit Agreement or the other Loan Documents (as defined
in the New Credit Agreement), or any Funded Debt (including, without limitation,
any TRAC Lease Transaction, the PMCC Like Kind Exchange Lease or the PMCC
Leveraged Lease) or any notice, call, default of event of default under any
Support Party Agreement, notice thereof and a statement of the curative action
that Borrowers or Guarantors, as applicable, propose to take with respect
thereto,
(i) such information as may, from time to time, be necessary
to comply with any applicable provision of TIA Section 314(a), and
(j) such information provided to the Bank Lenders' Agent
relating to the Collateral pursuant to Section 6.2 of the New Credit Agreement.
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To satisfy the delivery requirements, the Company and the Guarantors,
if applicable, may file or post electronically such information required to be
delivered to the Trustee and the Holders of the Notes, if applicable, pursuant
to this Section 4.04 and Section 4.05 in a manner and method mutually acceptable
to the Company and the Trustee and that provides for the access to such
information by the Trustee, and upon request of any Holder in accordance with
Section 7.06, the access to such information by such Holder.
Delivery of all reports, information and documents to the Trustee under
this Agreement is for informational purposes only and the Trustee's receipt of
such shall not constitute constructive notice of any information contained
therein or determinable therefrom, including compliance with any of the
Company's covenants hereunder.
The Trustee shall not disclose any material, non-public information
(all information received pursuant to this Section 4.04 or pursuant to other
provisions of this Agreement and identified as such in writing by the Company on
the face thereof, except for information received pursuant to Section 4.04(d)
and Section 4.04(i)) received from any Note Party to a Holder of the Notes
unless such Holder enters into a standstill and confidentiality agreement in a
form and substance satisfactory to the Company and the Trustee, and which shall
provide that the recipients of such information shall indemnify the Trustee
against any misuse or improper disclosure of such information.
In addition to the financial statements referred to above, Xxxxxxxxx
agree to deliver financial statements prepared on both a consolidated and
consolidating basis (in accordance with GAAP) and a Consolidated basis (as
defined herein) and that, except for the Insurance Subsidiaries, no Borrower, or
any Subsidiary of a Borrower, will have a fiscal year different from that of the
Company. Borrowers agree to cooperate with the Bank Lenders' Agent to allow Bank
Lenders' Agent to consult with their certified public accountants if Bank
Lenders' Agent reasonably requests the right to do so and that, in such
connection, their independent certified public accountants are authorized to
communicate with Bank Lenders' Agent and to release to Bank Lenders' Agent
whatever financial information concerning Borrowers or their Subsidiaries that
Bank Lenders' Agent reasonably may request and shall deliver copies of such
information to the Trustee. Each Borrower waives the right to assert a
confidential relationship, if any, it may have with any accounting firm or
service bureau in connection with any information requested by Bank Lenders'
Agent pursuant to or in accordance with this Agreement, and agree that Bank
Lenders' Agent may contact directly any such accounting firm or service bureau
in order to obtain such information; provided, however, so long as no Event of
Default has occurred and is continuing, Bank Lenders' Agent shall give Borrowers
a copy of any written request for information from Bank Lenders' Agent to such
accounting firm or bureau services and Borrowers shall have an opportunity to
attend any meeting between Bank Lenders' Agent and such accounting firm or
bureau services with respect to such information requests.
4.05 Guarantor Reports.
The Company shall cause each Guarantor to deliver its annual financial
statements at the time when the Company provides its audited financial
statements to the Trustee, but only to the extent such Guarantor's financial
statements are not consolidated with the Company's annual
52
financial statements and copies of all federal income tax returns as soon as the
same are available and in any event no later than 30 days after the same are
required to be filed by law.
4.06 Maintenance of Properties.
The Company shall, and the Company shall cause each of the other
Borrowers and the Subsidiaries of each Borrower to, maintain and preserve all of
its properties which are necessary or useful in the proper conduct of its
business in good working order and condition, ordinary wear and tear excepted,
and comply at all times with the provisions of all leases to which it is a party
as lessee, so as to prevent any loss or forfeiture thereof or thereunder.
4.07 Taxes.
The Borrowers shall, and shall cause each of its Subsidiaries to, pay
in full all assessments and taxes, whether real, personal, or otherwise, due or
payable by, or imposed, levied, or assessed against any Borrower, any Subsidiary
of a Borrower or any of their assets to be paid in full, not less than 30 days
before the earlier of (a) delinquency, or (b) the imposition of any additional
amounts, fines or penalties or (c) before the expiration of any extension
period, except to the extent that the validity of such assessment or tax shall
be the subject of a Permitted Protest. The Company shall, and shall cause each
of the other Borrowers and the Subsidiaries of each Borrower to, make timely
payment or deposit of all tax payments and withholding taxes required of it by
any Borrower or its Subsidiaries under Applicable Laws, including the Canadian
Income Tax Act, Statutory Lien Payments, those laws concerning F.I.C.A.,
F.U.T.A., state or provincial disability, and local, state, provincial and
federal income taxes, and will, upon request, furnish the Trustee with proof
reasonably satisfactory to the Trustee indicating that the applicable Borrower
or its Subsidiary has made such payments or deposits. Upon the request of the
Trustee, Borrowers shall deliver reasonably satisfactory evidence of payment of
applicable excise taxes in each jurisdiction in which any Borrower or its
Subsidiary is required to pay any such excise tax.
4.08 Insurance.
(a) The Company shall, and shall cause each of the other Borrowers and
the Subsidiaries of each Borrower to, at their expense, maintain insurance
respecting their respective assets wherever located, covering loss or damage by
fire, theft, explosion, flood (with respect to any property or assets located in
a flood zone), earthquake (in the event the probable maximum loss with respect
to such property or assets is equal to or greater than 20), and all other
hazards and risks as ordinarily are insured against by other Persons engaged in
the same or similar businesses. The Company also shall (and shall cause the
other Borrowers and the Subsidiaries of each Borrower to) maintain business
interruption, public liability, and product liability insurance, as well as
insurance against larceny, embezzlement, and criminal misappropriation. All such
policies of insurance shall be in such amounts as are reasonably satisfactory to
Bank Lenders' Agent and the Trustee. Borrowers shall deliver copies of all such
policies to Bank Lenders' Agent and the Trustee with a satisfactory lender's
loss payable endorsement naming Bank Lenders' Agent and the Trustee as loss
payees or additional insured, as appropriate and as their interests may appear.
Each policy of insurance or endorsement shall contain a clause requiring the
insurer to give not
53
less than 30 days prior written notice to Bank Lenders' Agent and the Trustee in
the event of cancellation of the policy for any reason whatsoever.
(b) The Company shall give Bank Lenders' Agent and the Trustee prompt
notice of any loss in excess of $100,000 for Vehicles or other personal property
covered by such insurance and any loss in excess of $500,000 for Real Property
covered by insurance. Other than with respect to Real Property subject to the
Synthetic Leases, Bank Lenders' Agent shall have the exclusive right to adjust
any losses payable under any such insurance policies in excess of $500,000 (or
in any amount during the existence of an Event of Default), without any
liability to Borrowers whatsoever in respect of such adjustments. Adjustments of
any losses with respect to Borrowers' Real Property subject to the Synthetic
Leases shall be subject to the terms thereof. Any monies received as payment for
any loss under any insurance policy mentioned above (other than liability
insurance policies) or as payment of any award or compensation for condemnation
or taking by eminent domain (other than any such award or compensation payable
with respect to Real Property subject to the Synthetic Leases), shall be paid
over to Bank Lenders' Agent and shall be applied at the option of the Required
Lenders either to the prepayment of the Obligations (as defined in the New
Credit Agreement) or shall be disbursed to the Company under staged payment
terms reasonably satisfactory to the Required Lenders for application to the
cost of repairs, replacements, or restorations. Application of any such award or
compensation payable with respect to Real Property subject to the Synthetic
Leases shall be subject to the terms thereof. Any such repairs, replacements, or
restorations shall be effected with reasonable promptness and shall be of a
value at least equal to the value of the items or property destroyed prior to
such damage or destruction.
(c) The Note Parties shall not take out separate insurance concurrent
in form or contributing in the event of loss with that required to be maintained
under this Section 4.08, unless Bank Lenders' Agent and the Trustee are included
thereon as named insureds with the loss payable to Bank Lenders' Agent and the
Trustee under a lender's loss payable endorsement or its equivalent. The Company
immediately shall notify Bank Lenders' Agent and the Trustee whenever such
separate insurance is taken out, specifying the insurer thereunder and full
particulars as to the policies evidencing the same, and copies of such policies
promptly shall be provided to Bank Lenders' Agent and the Trustee.
(d) The Note Parties shall maintain their insurance program with
respect to the Vehicles as in effect on the Issue Date with RepWest or, upon the
consent of Bank Lenders' Agent, which consent shall not be unreasonably
withheld, with such other insurer as may be agreed upon by Borrowers and Bank
Lenders' Agent so long as the terms of such replacement self-insurance program
are reasonably similar to the insurance program with RepWest as of the Issue
Date.
4.09 Location of Equipment.
The Note Parties shall store the Equipment of Note Parties only at the
Real Property and the locations of the U-Haul Dealers named on the Dealer List,
excluding (a) Vehicles in-transit from one U-Haul Dealer location to another
U-Haul Dealer location, (b) Vehicles that have been leased in the ordinary
course of the Borrowers' and Guarantors' businesses and consistent with their
past practices anywhere in the United States and Canada, and (c) Vehicles
located at new U-Haul Dealers added subsequent to the most recently provided
Dealer List. The Company
54
shall, or shall cause the other Borrowers and the Guarantors to, update the
Reservation Management System on a regular basis consistent with their past
practices.
4.10 Compliance with Laws.
The Company shall, and shall cause each of the other Borrowers and the
Subsidiaries of each Borrower to, comply with the requirements of all Applicable
Laws, rules, regulations, and orders of any Governmental Authority, including
the Fair Labor Standards Act and the Americans With Disabilities Act, other than
laws, rules, regulations, and orders the non-compliance with which, individually
or in the aggregate, could not reasonably be expected to result in a Material
Adverse Change.
4.11 Leases.
(a) The Company shall pay when due, or shall cause the other Borrowers
or the Guarantors to pay when due, all rents and other amounts payable under any
leases to which any Borrower or any Guarantor is a party or by which the
Borrowers' or Guarantor's properties and assets are bound, unless such payments
are the subject of a Permitted Protest.
(b) Promptly exercise each one year renewal or extension option
available under each Synthetic Lease within the time period specified therein.
4.12 Existence.
Except as provided by Section 5.03, the Company shall, and shall cause
each of the other Borrowers and Guarantors to, at all times preserve and keep in
full force and effect each Borrower's and each Guarantor's valid existence and
good standing and any rights, licenses, permits and franchises material to the
Borrower's and Guarantors' businesses.
4.13 Environmental.
The Note Parties shall (a) keep any property either owned or operated
by any Note Party free of any Environmental Liens or post bonds or other
financial assurances sufficient to satisfy the obligations or liability
evidenced by such Environmental Liens, (b) comply, in all material respects,
with Environmental Laws and provide to the Trustee documentation of such
compliance which the Trustee reasonably requests, (c) promptly notify the
Trustee of any known release of a Hazardous Material of any reportable quantity
from or onto property owned or operated by any Note Party and take any Remedial
Actions required to xxxxx said release or otherwise to come into compliance with
applicable Environmental Law, and (d) promptly, but in any event within 5 days
of its receipt thereof, provide the Trustee with written notice of the receipt
of any of the following: (i) notice that an Environmental Lien has been filed
against any of the real or personal property of any Note Party, (ii)
commencement of any Environmental Action or notice that an Environmental Action
will be filed against any Note Party, and (iii) notice of a violation, citation,
or other administrative order under any Environmental Law which reasonably could
be expected to result in a Material Adverse Change.
55
4.14 Real Estate.
If at any time after the Issue Date, the Company or any Guarantor
acquires any fee interest in Real Property with a fair market valuation in
excess of $250,000, the Company shall, or shall cause such Guarantor to,
promptly execute, deliver and record, a Mortgage (second only to the first
priority security interests granted to Bank Lenders' Agent pursuant to the New
Credit Agreement and the other Loan Documents (as defined in the New Credit
Agreement)) in favor of the Trustee covering such Real Property interest, in
form and substance reasonably satisfactory to the Trustee, and provide: (a) the
Trustee with a Mortgage Policy insuring the Lien (second in priority only to the
first priority security interests granted to Bank Lenders' Agent pursuant to the
New Credit Agreement and the other Loan Documents (as defined in the New Credit
Agreement)) of said Mortgage in such Real Property encumbered thereby, in an
amount reasonably acceptable to the Trustee and subject only to Permitted Liens
and to such other exceptions as are reasonably satisfactory to the Trustee, (b)
a satisfactory legal description of such property, (c) an opinion from special
counsel to such Person (in form and substance reasonably acceptable to Trustee)
stating that, in the opinion of such counsel, all action has been taken with
respect to the recording, registering, filing and perfection of the Mortgage
necessary to make effective the Lien (second in priority only to the first
priority security interests granted to Bank Lenders' Agent pursuant to the New
Credit Agreement and the other Loan Documents (as defined in the New Credit
Agreement)) intended to be created by the Mortgage, (d) to the extent necessary
under Applicable Laws, provide Uniform Commercial Code financing statements
covering fixtures, in each case appropriately completed and duly executed, for
filing in the appropriate county land office and (e) evidence that such Person
shall have paid to the applicable title insurance company all expenses of such
title insurance company in connection with the issuance of such reports and in
addition shall have paid to such title insurance company an amount equal to the
recording and stamp taxes (including mortgage recording taxes), if any, payable
in connection with recording such Mortgages in the appropriate county land
offices. In addition, such Person shall deliver to the Trustee copies of all
environmental reports and other documents delivered to Bank Lenders' Agent with
respect to such Real Property.
4.15 Reorganization Plan.
The Note Parties shall and shall cause each of their Subsidiaries to
comply in all material respects with the provisions of the Reorganization Plan
applicable to them.
4.16 Vehicles.
(a) The Company shall, or shall cause the other Borrowers and the
Subsidiaries of each Borrower to, (i) deposit all Certificates of Title into a
segregated, secured location at the Company's chief executive office located at
0000 Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx, the access to which shall be limited to
the Bank Lenders' Agent, its representatives and agents, the Trustee, and its
representatives and agents, Xxxxxxx Xxxxxx and Xxxx Xxxxxx and such Certificates
of Title and such Persons shall be covered by a fidelity insurance policy naming
the Bank Lenders' Agent and the Trustee as loss payees or a bond endorsed to the
Bank Lenders' Agent and the Trustee, in either case in form and substance
reasonably satisfactory to the Bank Lenders' Agent (which shall include coverage
of at least $5,000,000), and (ii) timely pay all fees required by the
56
States of Alaska, Arizona and Hawaii, as applicable, with respect to such
Vehicle registrations and the issuances of the corresponding Certificates of
Title.
(b) After the Issue Date, the Company shall, and shall cause the other
Borrowers, the Subsidiaries of each Borrower and the Guarantors to, (i) follow
the procedures set forth in Section 5.25(a), Section 5.25(b) and Section 5.25(c)
of the New Credit Agreement, as applicable, and Section 4.16(a) hereof with
respect to any Vehicle (excluding any trailer) acquired by any Borrower or a
Guarantor after the Issue Date that is not intended to be transferred into a
TRAC Lease Transaction within 130 days of the acquisition of such Vehicle, and
(ii) pursuant to the laws of the States of Alaska, Arizona and Hawaii, as
applicable, timely renew all registrations and Certificates of Title held by the
Borrowers with respect to the Vehicles.
(c) The Note Parties hereby acknowledge and agree that (i) they shall
hold and maintain all Certificates of Title on behalf of, and as an
attorney-in-fact and agent for, the Bank Lenders' Agent and the Trustee, (ii)
the Bank Lenders' Agent's and the Trustee's security interest in, Liens on, and
all rights and remedies with respect to the Vehicles and the Certificates of
Title shall remain valid and enforceable at all times, and (iii) during the
existence of an Event of Default, and the Bank Lenders' Agent is not satisfied
with the results of any inspection under Section 4.6(b) of the New Credit
Agreement or if the Trustee is not satisfied with the results of any inspection
under Section 11.17(b), the Company shall, or shall cause the other Borrowers
and the Guarantors to, promptly comply with any request or direction by Bank
Lenders' Agent or the Trustee to deliver the Certificates of Title to Bank
Lenders' Agent or such other Person or location as Bank Lenders' Agent or the
Trustee may direct in its Permitted Discretion. In the event such directions of
Bank Lenders' Agent and the Trustee conflict, then the failure of the Note
Parties to comply with the directions of the Trustee shall not constitute a
Default or an Event of Default hereunder provided that such Note Parties comply
with the directions of Bank Lenders' Agent.
Execution of this Agreement shall be evidence of the Company's and each
Guarantor's consent for the Lien of the Bank Lenders' Agent and the Trustee on
the Vehicles indicated on the Certificates of Title.
4.17 Cash Management and Asset Preservation Agreements.
The Company shall, and shall cause the other Borrowers and the
Guarantors, to comply with Section 2.7 of the New Credit Agreement and any other
asset preservation and management covenants thereof and any Cash Management
Agreements (as defined in the New Credit Agreement) entered into pursuant to
such provisions, and if the New Credit Agreement is ever terminated,
extinguished or otherwise not in force, then Section 2.7 and all other asset
preservation and management covenants thereof shall be incorporated herein with
the term "Agent" replaced with the term "Trustee" mutatis mutandis; provided
that the incorporation of such Section 2.7 and any other asset preservation and
management covenants thereof in this Agreement shall not adversely affect the
rights, duties, liabilities or immunities of the Trustee or require the Trustee
to exercise greater discretionary judgment hereunder without the Trustee's prior
written consent. Notwithstanding any other provision to the contrary, the New
AMERCO Note Accounts shall not be deemed to be Cash Management Accounts (as
defined in the New
57
Credit Agreement). In no event shall any Note Party deposit the proceeds of any
Collateral into any New AMERCO Note Account.
4.18 Credit Card Agreements.
The Company shall, and shall cause the other Borrowers and Guarantors,
to comply with the Credit Card Agreements (as defined in the New Credit
Agreement), and if the New Credit Agreement is ever terminated, extinguished or
otherwise not in force, then the Company shall, and shall cause the other
Borrowers and Guarantors, to use their best efforts to effect new credit card
agreements between the Trustee and the credit card processors of Borrowers and
Guarantors in substantially similar form and substance as the Credit Card
Agreements required under the New Credit Agreement.
4.19 Disclosure Updates.
Promptly and in no event later than 5 Business Days after obtaining
knowledge thereof, notify the Trustee if any written information, exhibit, or
report furnished to the Trustee or any Holder hereunder contained any untrue
statement of a material fact or omitted to state any material fact necessary to
make the statements contained therein not misleading in light of the
circumstances in which made. The foregoing notwithstanding, any notification
pursuant to the foregoing provision will not cure or remedy the effect of the
prior untrue statement of a material fact or omission of any fact nor shall any
such notification have the effect of amending or modifying this Agreement.
4.20 Material Contracts; Affiliate Contracts.
In the event any Borrower or Guarantor shall enter into any Material
Contract or, subject to Section 5.14, any new Affiliate Contract, after the
Issue Date, deliver to the Trustee, within 30 days of entering into such
Material Contract or Affiliate Contract, an updated Schedule M-1 or Schedule A-1
to the New Credit Agreement, as applicable, reflecting the addition of such
Material Contract or Affiliate Contract, together with a copy of such executed
Material Contract or Affiliate Contract. Each Borrower and Guarantor shall also
provide the Trustee with an executed copy of any contract with any of SAC
Holding, SSI, PMSR or PM Preferred executed after the Issue Date.
4.21 Employee Benefits.
(a) (i) Promptly, and in any event within 10 Business Days after any
Borrower or any Subsidiary of a Borrower knows or should know that an ERISA
Event (as defined in the New Credit Agreement) has occurred that reasonably
could be expected to result in a Material Adverse Change, deliver to the Trustee
a written statement of the chief financial officer of the Company describing
such ERISA Event (as defined in the New Credit Agreement) and any action that is
being taking with respect thereto by any such Borrower, any such Subsidiary or
ERISA Affiliate, and any action taken or threatened by the IRS, Department of
Labor, or PBGC, and such Borrower or such Subsidiary, as applicable, shall be
deemed to know all facts known by the administrator of any Benefit Plan of which
it is the plan sponsor, (ii) promptly, and in any event within 3 Business Days
after the filing thereof with the IRS, deliver to the Trustee a copy of each
funding waiver request filed with respect to any Benefit Plan and all
communications
58
received by any Borrower, any Subsidiary of a Borrower or, to the knowledge of
such Borrower, any ERISA Affiliate with respect to such request, and (iii)
promptly, and in any event within 3 Business Days after receipt by any Borrower,
deliver to the Trustee any Subsidiary of a Borrower or, to the knowledge of any
Borrower, any Subsidiary, any ERISA Affiliate, of the PBGC's intention to
terminate a Benefit Plan or to have a trustee appointed to administer a Benefit
Plan, copies of each such notice.
(b) Cause to be delivered to the Trustee, upon the Trustee's request,
each of the following: (i) a copy of each Benefit Plan (or, where any such plan
is not in writing, complete description thereof) (and if applicable, related
trust agreements or other funding instruments) and all amendments thereto, all
written interpretations thereof and written descriptions thereof that have been
distributed to employees or former employees of any Borrower or its
Subsidiaries; (ii) the most recent determination letter issued by the IRS with
respect to each Benefit Plan; (iii) for the 3 most recent plan years, annual
reports on Form 5500 Series required to be filed with any governmental agency
for each Benefit Plan; (iv) all actuarial reports prepared for the last 3 plan
years for each Benefit Plan; (v) a listing of all Multiemployer Plans, with the
aggregate amount of the most recent annual contributions required to be made by
any Borrower, any Subsidiary of a Borrower, or any ERISA Affiliate to each such
plan and copies of the collective bargaining agreements requiring such
contributions; (vi) any information that has been provided to any Borrower, any
Subsidiary of a Borrower or any ERISA Affiliate regarding withdrawal liability
under any Multiemployer Plan; and (vii) the aggregate amount of the most recent
annual payments made to former employees of any Borrower or its Subsidiaries
under any Retiree Health Plan (as defined in the New Credit Agreement).
ARTICLE V
NEGATIVE COVENANTS
Each Note Party covenants and agrees that, until payment in full and
satisfaction or discharge of all Obligations hereunder, it will not, and will
not permit any of its Subsidiaries (except the Insurance Subsidiaries) to, do
any of the following:
5.01 Indebtedness, Etc.
Create, incur, assume, suffer to exist, guarantee, or otherwise become
or remain, directly or indirectly, liable with respect to any Indebtedness,
except:
(a) Indebtedness evidenced by this Agreement, the Notes, the Note
Guarantees and the Guaranty Agreement;
(b) Indebtedness of the Company and any other Note Party incurred under
the New Credit Agreement and all other obligations in respect thereof in an
aggregate amount at any time outstanding not to exceed $575,000,000, less
mandatory permanent prepayments and permanent reductions plus: (i) advances made
pursuant to the New Credit Agreement to pay expenses of the lenders thereunder
(including expenses accruing after the commencement of any Insolvency or
Liquidation Proceeding (as defined in the New Credit Agreement), whether or not
a claim for post-filing or post-petition expenses is allowed in such
proceeding), (ii) advances made to protect
59
or preserve the "Collateral" under the New Credit Agreement and the other Loan
Documents (as defined in the New Credit Agreement), (iii) advances made to pay
interest (including interest accruing under Section 2.6(c) of the New Credit
Agreement (or a comparable section, as applicable) and interest accruing after
the commencement of any Insolvency or Liquidation Proceeding (as defined in the
New Credit Agreement), whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) and (iv) advances made pursuant to the
New Credit Agreement to pay fees under the New Credit Agreement (including fees
accruing after the commencement of any Insolvency or Liquidation Proceeding (as
defined in the New Credit Agreement), whether or not a claim for post-filing or
post-petition fees are allowed in such proceeding);
(c) Indebtedness in existence as of the Issue Date and obligations to
make payments required under the Reorganization Plan;
(d) (i) Purchase Money Indebtedness and Capitalized Lease Obligations
(other than Capital Leases of the type set forth in clause (ii) of this Section
5.01(d)) incurred after the Issue Date in an aggregate amount not to exceed
$30,000,000; and (ii) Capital Leases, to the extent such Capital Leases arise
out of the treatment of any of the Synthetic Leases (including any refinancings,
in whole or in part, thereof) as Capital Leases in accordance with the
requirements of GAAP;
(e) Indebtedness under the New AMERCO Notes to the extent outstanding
on the Issue Date;
(f) guarantees permitted under Section 5.06;
(g) Indebtedness comprising Permitted Investments;
(h) Indebtedness with respect to letters of credit issued by a party
other than the Issuing Lender (as defined in the New Credit Agreement) and
secured by cash collateral in an aggregate amount not to exceed $3,000,000 at
any time; and
(i) refinancings, renewals, or extensions of Indebtedness permitted
under clauses (c) and (d) of this Section 5.01 (and continuance or renewal of
any Permitted Liens associated therewith) (specifically excluding the New AMERCO
Notes), so long as: (i) the terms and conditions of such refinancings, renewals,
or extensions do not materially impair the prospects of repayment of the
Obligations by the Borrowers or materially impair the Borrower's
creditworthiness, (ii) such refinancings, renewals, or extensions do not result
in an increase in the principal amount (other than capitalized fees and, with
respect to any refinancing of the Synthetic Leases, to the extent they are
treated as Capital Leases in accordance with GAAP, any increases directly
attributable to improvements on or to the Real Property covered by such
Synthetic Leases) of, or interest rate beyond a prevailing market rate with
respect to, the Indebtedness so refinanced, renewed, or extended, (iii) such
refinancings, renewals, or extensions do not result in a shortening of the
average weighted maturity of the Indebtedness so refinanced, renewed, or
extended, (other than such changes in the average weighted maturity of the
Synthetic Leases, to the extent they are treated as Capital Leases in accordance
with GAAP, resulting from the refinancing, in whole or in part, of the Synthetic
Leases pursuant to the WP
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Xxxxx Transaction or other refinancing transaction in form and substance
reasonably satisfactory to the Trustee or as permitted by the Bank Lenders'
Agent and amended in accordance with Section 9.07(c)(i) hereof), nor are they on
terms or conditions, that, taken as a whole, are materially more burdensome or
restrictive to the applicable Borrower, and (iv) if the Indebtedness that is
refinanced, renewed, or extended was subordinated in right of payment to the
Obligations, then the terms and conditions of the refinancing, renewal, or
extension Indebtedness must include subordination terms and conditions that are
at least as favorable to the Holders of the Notes as those that were applicable
to the refinanced, renewed, or extended Indebtedness.
5.02 Liens.
Create, incur, assume, or permit to exist, directly or indirectly, any
Lien on or with respect to any of its assets, of any kind, whether now owned or
hereafter acquired, or any income or profits therefrom, except for Permitted
Liens.
5.03 Restrictions on Fundamental Changes.
(a) Enter into any merger, consolidation, reorganization, or
recapitalization, or reclassify its Stock (other than in connection with the
Reorganization Plan), except that, so long as no Default or Event of Default
then exists hereunder or would be caused thereby and the Trustee receives
written notice of any such merger at least 30 days prior to the effectiveness
thereof (provided that the Trustee shall have no duty to act upon receipt of
such notice except as expressly provided in clause (y) below) if such merger
involves a Note Party: (i) any Subsidiary that is not a Note Party may merge
into any other Subsidiary that is not a Note Party, and (ii) any Note Party
(other than the Company, U-Haul or AREC) may merge into any other Note Party
(other than the Company, U-Haul or AREC); provided, however, (x) the Person
surviving such merger shall be a Note Party, and (y) the Trustee shall have
received, upon the effectiveness of such merger, such Note Documents, title
insurance and opinions of counsel as the Trustee may reasonably request to
continue or insure the priority and perfection of the Trustee's Liens on the
Collateral or the obligations of any such Note Party under any of the Note
Documents, including, without limitation, the documents required by Section
5.13(b) hereof. Notwithstanding the foregoing, a Subsidiary that is not an
Insurance Subsidiary shall not merge with any Insurance Subsidiary.
(b) Liquidate, wind up, or dissolve any Borrower or any Borrower's
Subsidiaries (or suffer any liquidation or dissolution), except that the Company
may liquidate, dissolve or wind up any Subsidiary (other than AREC and U-Haul or
any Insurance Subsidiary) so long as (i) no Default or Event of Default then
exists hereunder or would be caused thereby and the Trustee receives written
notice of any such action at least 30 days prior to the effectiveness thereof
(provided that the Trustee shall have no duty to act upon receipt of such notice
except as expressly provided in clause (iii) below), (ii) the assets of such
Subsidiary are transferred to another Subsidiary of the Company or, if such
Subsidiary is a Note Party, to another Note Party and such assets remain subject
to a perfected Lien (second in priority only to the first priority security
interests granted to Bank Lenders' Agent pursuant to the New Credit Agreement
and the other Loan Documents (as defined in the New Credit Agreement) and
subject to Permitted Liens) under a Note Document after such transfer, and (iii)
the Trustee shall have received such Note
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Documents, title insurance and opinions of counsel as the Trustee may request to
continue or insure the priority and perfection of the Trustee's Liens on such
assets or the obligations of any such Subsidiary under any of the Note
Documents, including, without limitation, the documents required by Section
5.13(b) hereof. Notwithstanding the foregoing, a dissolving or liquidating
Subsidiary that is not an Insurance Subsidiary shall not transfer assets to any
Insurance Subsidiary.
5.04 Disposal of Assets.
Other than Permitted Dispositions, convey, sell, lease, license,
assign, transfer, or otherwise dispose of, in one transaction or a series of
transactions, any of the assets of any Borrower or any Guarantor. To the extent
a sale or other disposition is permitted by clause (k) of the definition of
Permitted Dispositions and if an Authorized Officer of Company certifies in
writing to the Trustee that (a) the sale is permitted under this Section 5.04,
(b) the Vehicles identified (by vehicle identification number, make and model)
in such certification are to be sold in connection with a TRAC Lease Transaction
and (c) such Vehicles are to be sold on a date (each such date, a "Sale Date")
no later than 130 days from the date of such certification, Trustee's Lien on
such Vehicles shall be deemed to be released 1 Business Day prior to such sale;
provided, however, that in the event one or more of such Vehicles are not sold
in connection with a TRAC Lease Transaction within 5 Business Days of the Sale
Date indicated in such certification, the Vehicles that are not so sold shall
become subject to a Lien (second in priority only to the first priority security
interests granted to the Bank Lenders' Agent pursuant to the New Credit
Agreement and the other Loan Documents (as defined in the New Credit Agreement))
in favor of the Trustee on the fifth Business Day following such Sale Date and
the Company shall, or shall cause the other Borrowers or Guarantors, as
applicable, to comply immediately with the requirements of this Agreement with
respect to such Vehicles, including, without limitation, Section 4.16(a) hereof.
The Note Parties shall not, without the prior written consent of the Holders as
required by Article IX hereof, (x) transfer, sell or otherwise dispose of any of
the Vehicles or the Certificates of Title except in conjunction with a Permitted
Disposition hereunder, or (y) relocate the Certificates of Title.
5.05 Change Name.
Change the Company's or any Guarantor's name, FEIN, Organizational ID
Number, corporate structure, or identity, or add any new fictitious name, or
reincorporate or reorganize itself under the laws of any other jurisdiction
other than the jurisdiction of incorporation of such Person; provided, however,
that any Borrower or any Guarantor may change its name upon at least 30 days'
prior written notice by the Company to the Trustee of such change and so long
as, at the time of such written notification, the Company and/or such Guarantor
provides or authorizes the filing of any Uniform Commercial Code financing
statements or fixture filings necessary to perfect and continue perfected the
Trustee's Liens.
5.06 Guarantee.
Guarantee or otherwise become in any way liable with respect to the
obligations of any third Person (including the Insurance Subsidiaries) except by
endorsement of instruments or items of payment for deposit to the account of
Company or Guarantors or which are transmitted
62
or turned over to the Trustee, except for (a) guarantee obligations of the
Company existing as of Issue Date, (b) guarantee obligations of the Company in
connection with the Reorganization Plan, (c) guarantee obligations of the
Company with respect to the Support Party Agreements, (d) guarantee obligations
with respect to TRAC Lease Transactions in the ordinary course of business, to
the extent the obligations thereunder are permitted by Section 5.01 hereof and
are consistent with past practices, (e) guarantee obligations of a Note Party
pursuant to any refinancing, renewal or extension of Indebtedness permitted
pursuant to Section 5.01(i) hereof, and (f) guarantee obligations of a Note
Party with respect to the obligations of any other Note Party incurred in the
ordinary course of business, to the extent such guaranteed obligation is
permitted to be incurred by such guaranteed Note Party hereunder and is
consistent with past practices.
5.07 Nature of Business.
Make any change in the principal nature of any Note Party's business.
5.08 Prepayments and Amendments.
(a) Prepay, redeem, defease, purchase, or otherwise acquire any
Indebtedness of any Note Party, other than (i) the DIP Obligations; (ii) as
required by the Confirmation Order; (iii) Obligations (as defined in the New
Credit Agreement) under the New Credit Agreement in accordance with the terms
thereof; (iv) Obligations in accordance with this Agreement; (v) in connection
with a refinancing permitted by Section 5.01(i); (vi) (1) prepayments of the
Indebtedness under the New AMERCO Notes, from the proceeds from the monetization
or sale of the Excluded Assets, or (2) so long as no Event of Default exists,
other prepayments of Indebtedness, under the New AMERCO Notes so long as (A) the
aggregate amount of such prepayments in any fiscal year, together with the
aggregate amount of prepayments in such fiscal year by Borrowers pursuant to
clause (3) of Section 5.08(a)(vii) plus the aggregate amount of dividends paid
in arrears in such fiscal year by the Borrowers pursuant to clause (c) of
Section 5.11, shall not, in the aggregate, exceed the ECF Carry Forward Amount,
if any, then in existence, and (B) on the date of such prepayment Borrowers are
in compliance with the Excess Availability Test; (vii) (1) prepayments of the
Indebtedness under the Synthetic Leases with insurance proceeds or condemnation
proceeds received by a Note Party in connection with any loss or condemnation of
the Synthetic Lease Collateral, (2) prepayments of the Indebtedness under the
Synthetic Leases upon the sale of any parcel of the Real Property subject to the
Synthetic Leases pursuant to an arms-length sale to a bona fide purchaser that
is not an Affiliate of the Company (whether or not an Affiliate leases back or
retains the right to manage, occupy or conduct business at the affected
Synthetic Lease Property), up to the amount of the net sale proceeds, or (3) so
long as no Event of Default exists, any other prepayments of principal
Indebtedness required pursuant to the provisions of the Synthetic Leases, so
long as (I) the aggregate amount of such prepayments in any fiscal year,
together with the aggregate amount of prepayments in such fiscal year by
Borrowers pursuant to clause (2) of Section 5.08(a)(vi) plus the aggregate
amount of dividends paid in arrears in such fiscal year by Borrowers pursuant to
clause (c) of Section 5.11, shall not, in the aggregate, exceed the ECF Carry
Forward Amount, if any, then in existence, and (II) on the date of such
prepayment Borrowers are in compliance with the Excess Availability Test, (viii)
in addition to the principal payments under the Synthetic Leases to be made on
the Effective Date as contemplated by the Reorganization Plan, the actual
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scheduled payments of principal and interest due under the Synthetic Leases,
estimates of which are set forth on Schedule 7.8(a) of the New Credit Agreement
(including any refinancings, in whole or in part, thereof); or (ix) other
Indebtedness with the consent of the Required Holders.
(b) Except in connection with a refinancing permitted by Section
5.01(i), directly or indirectly, amend, modify, alter, increase, or change any
of the terms or conditions of any agreement, instrument, document, indenture, or
other writing evidencing or concerning Indebtedness permitted under Section 5.01
(excluding any amendment to this Agreement that must be made pursuant to Section
9.07 thereof).
(c) Amend, modify or otherwise change its Governing Documents,
including, without limitation, by the filing or modification of any certificate
of designation, or any agreement or arrangement entered into by it with respect
to any of its capital Stock (including any shareholders' agreement), or enter
into any new agreement with respect to any of its capital Stock, except as
appropriate to accomplish a transaction permitted pursuant to Section 5.03(a) or
Section 5.03(b), or (ii) amend, modify or otherwise change any Material Contract
(other than a Material Contract, the amendment of which is governed by clause
(b) above) except any such amendments, modifications or changes or any such new
agreements or arrangements pursuant to this paragraph (c) that, either
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Change, or (iii) amend, modify or otherwise change any
Affiliate Contract or any contract with SAC Holding, SSI, PMSR or PM Preferred
except in compliance with Section 5.14 hereof.
5.09 Change of Control.
Cause, permit, or suffer, directly or indirectly, any Change of
Control, other than in connection with the consummation of the Reorganization
Plan on the Effective Date.
5.10 Ownership of Certain Assets.
Cause, permit, or suffer any Subsidiary, other than Borrowers and
U-Haul (Canada), to own any parcel of Real Property Collateral or any Vehicle
included in the Collateral unless (a) Company provides the Trustee with 10 days'
prior written notice of such intended ownership, (b) such Subsidiary becomes a
Guarantor under this Agreement and delivers to the Trustee any additional
documents requested by the Trustee in their Permitted Discretion, and (c) the
Company takes or causes to be taken all such action necessary to perfect the
Trustee's Lien on such Collateral (second in priority only to the first priority
security interests granted to the Bank Lenders' Agent pursuant to the New Credit
Agreement and the other Loan Documents (as defined in the New Credit Agreement))
and the Company delivers to the Trustee an opinion of counsel stating that all
action has been taken to perfect such Lien.
5.11 Distributions.
Make any distribution or declare or pay any dividends (in cash or other
property, other than common Stock) on, or purchase, acquire, redeem, or retire
any of any Note Party's Stock, of any class, whether now or hereafter
outstanding, except, so long as no Event of Default has occurred and is
continuing hereunder or would result therefrom, distributions or declarations
and payments of dividends: (a) by a Note Party to another Note Party, (b) on the
preferred stock of
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the Company, based on the accrual of dividends subsequent to the Issue Date
(including, without limitation, the payment of dividends in an aggregate amount
not to exceed $3,335,000 paid on account of dividends on the preferred stock of
the Company accrued for the period ended February 29, 2004), in an aggregate
amount not to exceed $13,000,000 in any fiscal year, so long as at the time of
payment of any such dividend, Borrowers are in compliance with the Excess
Availability Test, and (c) on the preferred stock of the Company based on the
accrual of dividends prior to the Issue Date (including, without limitation, the
payment of dividends in an aggregate amount not to exceed $3,335,000 paid on
account of dividends on the preferred stock of the Company accrued prior to or
for the period ended November 30, 2003), so long as (i) the aggregate amount of
such dividends in arrears shall not exceed the lesser of (x) $19,600,000 paid in
the aggregate on or after the Issue Date or (y) together with the aggregate
amount of any prepayments paid by Borrowers in such fiscal year pursuant to
clause (2) of Section 5.08(a)(vi) plus the aggregate amount of any prepayments
paid by Borrowers in such fiscal year pursuant to clause (3) of Section
5.08(a)(vii), the ECF Carry Forward Amount, if any, then in existence, and (ii)
at the time of payment of any such dividend in arrears, Borrowers are in
compliance with the Excess Availability Test.
5.12 Accounting Methods.
Modify or change their fiscal year from a year ending March 31 or their
method of accounting (other than as may be required to conform to GAAP) or enter
into, modify, or terminate any agreement currently existing, or at any time
hereafter entered into with any third party accounting firm or service bureau
for the preparation or storage of the Note Parties' accounting records without
said accounting firm or service bureau agreeing to provide Trustee information
regarding the Collateral or Borrowers' and their Subsidiaries' financial
condition.
5.13 Formation of Subsidiaries; Investments.
(a) Except for Permitted Investments, directly or indirectly, make or
acquire any Investment, or incur any liabilities (including contingent
obligations) for or in connection with any Investment; provided, however, that
the Company and its Subsidiaries shall not (i) have Permitted Investments (other
than in the Cash Management Accounts (as defined in the New Credit Agreement))
in Deposit Accounts or Securities Accounts in excess of $3,000,000 in the
aggregate outstanding at any one time (excluding (x) Deposit Accounts or
Securities Accounts containing only the cash proceeds received from the WP Xxxxx
Transaction (to the extent such proceeds will be fully utilized in such
transaction), and any proceeds from the monetization of Excluded Assets, and (y)
any Deposit Accounts maintained by U-Haul solely in its capacity as manager of
properties owned by SAC Holding or SSI under a Management Agreement provided
U-Haul has no rights to or interest in the funds deposited therein) unless the
Company or any of its Subsidiaries, as applicable, and the applicable securities
intermediary or bank have entered into Control Agreements or similar
arrangements governing such Permitted Investments as to perfect (and further
establish) the Trustee's secondary Liens in such Permitted Investments, or (ii)
forgive or waive the repayment or retirement or amend the terms of any
Investment in existence on or after the Issue Date in SAC Holding or any such
Person made by the Company or any Subsidiary that is required to be repaid or
retired by the terms of such Investment as in effect on or after the Issue Date
(other than in accordance with the terms thereof as in effect on the date the
Investment is made).
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(b) Form any new Subsidiary or acquire any direct or indirect
Subsidiary after the Issue Date, unless (i) such Subsidiary is a wholly-owned
Subsidiary of a Note Party, and such Note Party shall (x) cause such new
Subsidiary to enter into a supplemental indenture in the form of Exhibit D
attached hereto and provide to the Trustee a Note Guarantee and a joinder to the
Guaranty Agreement, the Guarantor Security Agreement, the Copyright Security
Agreement, and the Patent and Trademark Security Agreement, together with such
other security documents (including Mortgages and Mortgage Policies with respect
to any Real Property of such new Subsidiary), as well as appropriate Uniform
Commercial Code financing statements (and with respect to all property subject
to a Mortgage, fixture filings) all in form and substance satisfactory to the
Trustee (including being sufficient to grant the Trustee a Lien (second in
priority only to the first priority security interests granted to Bank Lenders'
Agent pursuant to the New Credit Agreement and the other Loan Documents (as
defined in the New Credit Agreement) and subject to Permitted Liens) in and to
the assets of such newly formed or acquired Subsidiary), and (y) provide to the
Trustee a pledge agreement and appropriate certificates and powers or Uniform
Commercial Code financing statements, hypothecating all of the direct or
beneficial ownership interest in such new Subsidiary, in form and substance
substantially similar to the Stock Pledge Agreement and other corresponding
Security Documents, and (z) provide to the Trustee one or more opinions of
counsel satisfactory to the Trustee, with respect to the execution and delivery
of the applicable documentation referred to above and opining that all action
has been taken to perfect the Trustee's Lien in and to the assets of such
Subsidiary and all direct or beneficial ownership interests in such new
Subsidiary, and (ii) the Trustee receives 30 days' prior written notice of such
formation or acquisition. Any document, agreement, or instrument executed or
issued subject to this Section 5.13(b) shall be a Note Document.
5.14 Transactions with Affiliates.
Except (a) as otherwise set forth in the Reorganization Plan, (b) for
the Company's reimbursement to, or payment on behalf of, SAC Holding, of (i)
reasonable attorneys' fees incurred by SAC Holding in connection with the
preparation, negotiation and implementation of the SAC Participation and
Subordination Agreement, not to exceed an aggregate amount of $500,000, (ii) any
and all reasonable direct out of pocket expenses (including reasonable
attorneys' fees and accountants' fees and trustee's fees, but excluding the
payment of principal, premium, if any, and interest in respect of the SAC
Holding Senior Bond and any other amount payable by SAC Holding pursuant to the
terms of the SAC Note Indenture) incurred by SAC Holding in connection with its
reporting or other compliance obligations under the SAC Notes Indenture in an
aggregate amount not to exceed $1,000,000 in any 12-month period, and (iii) the
Company's obligations under the Agreement to Indemnify, or (c) as consented to
by Trustee and the Required Holders, directly or indirectly enter into or permit
to exist any transaction with any Affiliate of any Borrower, SAC Holding, SSI,
PMSR or PM Preferred except for transactions that are in the ordinary course of
the Borrowers' business, upon fair and reasonable terms that are no less
favorable to the Borrowers than would be obtained in an arm's length transaction
with a non-Affiliate. Borrowers shall not, and shall not permit any of their
Subsidiaries to, transfer any cash or assets to the Insurance Subsidiaries, the
Dormant Subsidiaries or INW under any circumstances whatsoever or guarantee or
otherwise incur any Indebtedness on behalf of such Insurance Subsidiaries,
Dormant Subsidiaries or INW.
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5.15 Suspension.
Except as permitted by Section 5.03, suspend or go out of a substantial
portion of its business.
5.16 Use of Proceeds.
Use the proceeds from the sale of the Notes for any purpose other than
(a) on the Issue Date, to pay transactional fees, costs, and expenses incurred
in connection with this Agreement, the other Note Documents, and the
transactions contemplated hereby and thereby, (b) to fund the Reorganization
Plan and (c) thereafter, for working capital and other general corporate
purposes of the Borrowers, in each case consistent with the terms and conditions
hereof, for its lawful and permitted purposes.
5.17 Change in Location of Chief Executive Office; Equipment with
Xxxxxxx.
Relocate its chief executive office to a new location without the
Company providing 30 days' prior written notification thereof to the Trustee and
so long as, at the time of such written notification, the applicable Note Party
provides or authorizes, the filing of any Uniform Commercial Code financing
statements or fixture filings necessary to perfect and continue perfected the
Trustee's Liens and also provide to the Trustee a Collateral Access Agreement,
in a form substantially similar to those Collateral Access Agreements delivered
in accordance with Section 11.01(a)(ii)(1), with respect to such new location.
The Equipment of the Note Parties shall not at any time now or hereafter be
stored with a bailee, warehouseman, or similar party (other than a U-Haul
Dealer) without Bank Lenders' Agent's prior written consent and prior written
notification to the Trustee.
5.18 Securities Accounts.
Establish or maintain any Securities Account unless the Trustee shall
have received a Control Agreement in respect of such Securities Account. No Note
Party shall transfer assets out of any Securities Account; provided, however,
that, so long as no Event of Default has occurred and is continuing or would
result therefrom, such Note Party may use such assets (and the proceeds thereof)
to the extent not prohibited by this Agreement.
5.19 Financial Covenants.
(a) EBITDA/Capital Expenditures. Allow Consolidated EBITDA minus
Capital Expenditures, each as measured on a fiscal quarter-end basis for the
applicable period set forth below, to be less than the required amount set forth
in the following table as of the applicable date set forth opposite thereto:
Applicable Amount Applicable Date
----------------- ----------------------
$15,000,000 For the 3-month period
ending June 30, 2004
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Applicable Amount Applicable Date
----------------- -------------------------
$ 65,000,000 For the 6-month period
ending September 30, 2004
$ 65,000,000 For the 9-month period
ending December 31, 2004
$ 60,000,000 For the 12-month period
ending March 31, 2005
$ 48,000,000 For the 12-month period
ending June 30, 2005
$ 25,000,000 For the 12-month period
ending September 30, 2005
$ 25,000,000 For the 12-month period
ending December 31, 2005
$ 30,000,000 For the 12-month period
ending March 31, 2006
$ 80,000,000 For the 12-month period
ending June 30, 2006
$115,000,000 For the 12-month period
ending September 30, 2006
$110,000,000 For the 12-month period
ending December 31, 2006
$105,000,000 For the 12-month period
ending March 31, 2007
; provided, however, that based upon Borrowers' Projections (as defined in the
New Credit Agreement) delivered to the Trustee pursuant to Section 4.04(c), the
Required Lenders shall establish quarterly EBITDA minus Capital Expenditure
covenants for each fiscal quarter after March 2007, using the same methodology
as utilized for 2004, 2005 and 2006, and the covenants
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shall be presented to the Company for its approval, which approval shall not be
unreasonably withheld. In the event the Company does not approve the proposed
covenants, Required Lenders shall establish such covenants, in their Permitted
Discretion, based upon Borrowers' Projections (as defined in the New Credit
Agreement) for the applicable fiscal year.
(b) Capital Expenditures. Make Capital Expenditures in any fiscal year
in excess of the amount set forth in the following table for the applicable
period:
Fiscal Year 2005 Fiscal Year 2006 Fiscal Year 2007
---------------- ---------------- ----------------
$ 185,000,000 $ 245,000,00 $ 195,000,000
; provided, however, that based upon Borrowers' Projections (as defined in the
New Credit Agreement) delivered to the Trustee pursuant to Section 4.04(c), the
Required Lenders shall establish quarterly Capital Expenditure covenants for
each fiscal year after 2007, using the same methodology as utilized for 2005,
2006 and 2007, and the covenants shall be presented to the Company for its
approval, which approval shall not be unreasonably withheld. In the event the
Company does not approve the proposed covenants, Required Lenders shall
establish such covenants, in their Permitted Discretion, based upon Borrowers'
Projections (as defined in the New Credit Agreement) for the applicable fiscal
year.
5.20 Employee Benefits.
Directly or indirectly:
(a) engage in any prohibited transaction which is reasonably likely to
result in a civil penalty or excise tax described in Sections 502(i) of ERISA or
4975 of the IRC for which a statutory or class exemption is not available or a
private exemption has not been previously obtained from the Department of Labor;
(b) with respect to any Benefit Plan, permit to exist an accumulated
funding deficiency (as defined in Sections 302 of ERISA and 412 of the IRC) for
a period longer than 30 days, whether or not waived;
(c) fail to pay timely required contributions or annual installments
due with respect to any waived funding deficiency to any Benefit Plan;
(d) terminate any Benefit Plan where such event would result in any
liability of any Borrower, any Subsidiary of any Borrower or any ERISA Affiliate
under Title IV of ERISA;
(e) fail to make any required contribution or payment to any
Multiemployer Plan;
(f) fail to pay any required installment or any other payment required
under Section 412 of the IRC on or before the due date for such installment or
other payment;
(g) amend a Benefit Plan resulting in an increase in current liability
for the plan year such that any Borrower, any Subsidiary of any Borrower or any
ERISA Affiliate is required to provide security to such Plan under Section
401(a)(29) of the IRC; or
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(h) withdraw from any Multiemployer Plan where such withdrawal is
reasonably likely to result in any liability of any such entity under Title IV
of ERISA;
that, individually or in the aggregate, results in or reasonably would be
expected to result in a claim against or liability of any Borrower, any
Subsidiary of any Borrower or any ERISA Affiliate in excess of $25,000.
5.21 Sales and Leasebacks.
Except for Permitted Dispositions, enter into any arrangement, directly
or indirectly, with any third party whereby any Note Party shall sell or
transfer any property, real or personal, whether now owned or hereafter
acquired, and whereby such Note Party shall then or thereafter rent or lease as
lessee of such property or any part thereof or other property that such Note
Party intends to use for substantially the same purpose or purposes as the
property sold or transferred.
5.22 Anti-Terrorism Laws.
(a) Conduct any business or engage in any transaction or dealing with
any Blocked Person, including the making or receiving any contribution of funds,
goods or services to or for the benefit of any Blocked Person; (b) deal in, or
otherwise engage in any transaction relating to, any property or interests in
property blocked pursuant to Executive Order No. 13224; (c) engage in or
conspire to engage in any transaction that evades or avoids, or has the purpose
of evading or avoiding, or attempts to violate, (i) any of the prohibitions set
forth in Executive Order No. 13224 or the USA Patriot Act, or (ii) any
prohibitions set forth in the rules or regulations issued by OFAC or any
sanctions against targeted foreign countries, terrorism sponsoring
organizations, and international narcotics traffickers based on U.S. foreign
policy.
5.23 Speculative Transactions.
Engage in any transaction involving commodity options or futures
contracts or any similar speculative transactions except for Hedge Agreements
that are used solely as part of normal business operations as a risk management
strategy and/or hedge against charges resulting from market operations in
accordance with the Company's customary policies and not as a means to speculate
for investment purposes or trends and shifts in financial or commodities
markets.
5.24 Amendment to Certain Agreements.
Neither the Company nor any Subsidiary shall (a) enter into or consent
to any amendment, supplement or other modification of this Agreement or the
Security Documents except as permitted under Article IX hereof, and (b) amend,
restate, supplement, modify, waive or otherwise change or consent or agree to
any amendment, modification, waiver or other change to, any of the terms of the
New Credit Agreement in any manner prohibited by the Intercreditor Agreement.
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5.25 Waiver of Stay, Extension or Usury Laws.
The Company and each Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim, and will resist any and all efforts to be compelled to
take the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Company from paying all or any
portion of the principal of, or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Agreement and the Security Documents; and
(to the extent that it may lawfully do so) the Company and each Subsidiary
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power granted to
the Trustee herein and in the Security Documents, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VI
DEFAULTS AND REMEDIES
6.01 Events of Default.
Each of the following shall constitute an "Event of Default" under this
Agreement, the Security Documents and the Note Documents:
(a) failure by the Company to pay interest on any of the Notes when it
becomes due and payable and the continuance of any such failure for 5 days;
(b) failure by the Company to pay the principal of any of the Notes
when it becomes due and payable, whether at stated maturity, upon redemption,
upon purchase, upon acceleration or otherwise;
(c) failure to perform, keep, or observe any term, provision, covenant,
or agreement contained in Sections 4.08, 4.11(b), 4.12, 4.16, 4.17, 11.07, 11.09
(except to the extent applicable under clause (t) of this Section 6.01), 11.12,
11.17 and Article V of this Agreement;
(d) failure to perform, keep, or observe any term, provision, covenant,
or agreement contained in Sections 4.04, 4.06, 4.07, 4.09, 4.10, 4.11(a), 4.13,
4.15, 4.19 and 11.10 of this Agreement and such failure continues for a period
of 20 Business Days;
(e) failure by a Note Party to perform, keep, or observe any other
term, provision, covenant, or agreement contained in this Agreement or in any of
the other Note Documents (giving effect to any grace periods, cure periods, or
required notices, if any, expressly provided for in such Note Documents); in
each case, other than any such term, provision, covenant, or agreement that is
the subject to another provision of this Section 6.01 (in which event such other
provision of this Section 6.01 shall govern), and such failure continues for a
period of 20 Business Days;
(f) if any material portion of any Note Party's assets is attached,
seized, subjected to a writ or distress warrant, levied upon, or comes into the
possession of any third Person;
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(g) if any Note Party is enjoined, restrained, or in any way prevented
by court order from continuing to conduct all or any material part of its
business affairs;
(h) if a notice of Lien, levy, or assessment, individually or in the
aggregate in an amount of $500,000 or greater, is filed of record with respect
to any Note Party's assets by the United States or Canada, or any department,
agency, or instrumentality thereof, or by any state, province, territory,
county, municipal, or governmental agency, or if any taxes or debts owing at any
time hereafter to any one or more of such entities becomes a Lien, whether
xxxxxx or otherwise, upon any Borrower's or any of its Subsidiaries' assets and
the same is not paid on the payment date thereof;
(i) if a judgment or other claim becomes a Lien or encumbrance upon any
material portion of any Note Party's properties or assets;
(j) if there is a default in any material agreement to which any Note
Party is a party including, without limitation, any Material Contract, Affiliate
Contract or any material contract with any of SAC Holding, SSI, PMSR or PM
Preferred (other than the New AMERCO Notes and the Synthetic Leases) or any
other Indebtedness in excess of $1,000,000, and such default (a) occurs at the
final maturity of the obligations thereunder, or (b) results in the acceleration
of the maturity of the applicable Note Party's obligations thereunder;
(k) except as otherwise set forth in the Reorganization Plan or as
otherwise permitted by this Agreement, if any Note Party makes any payment on
account of Indebtedness that has been contractually subordinated in right of
payment to the payment of the Obligations of the Note Parties under the Notes
and the other Note Documents;
(l) if the obligation of any Guarantor under the Guaranty Agreement or
the Note Guarantee is limited or terminated by operation of law or by such
Guarantor thereunder;
(m) if this Agreement or any other Note Document that purports to
create a Lien, shall, for any reason, fail or cease to create a valid and
perfected, except to the extent permitted by the terms hereof or thereof, Lien
on or security interest (each, second in priority only to the first priority
security interests granted to Bank Lenders' Agent pursuant to the New Credit
Agreement and the other Loan Documents (as defined in the New Credit Agreement))
in the Collateral covered hereby or thereby;
(n) if any provision of any Note Document shall at any time for any
reason be declared to be null and void, or the validity or enforceability
thereof shall be contested by any Note Party, or a proceeding shall be commenced
by any Note Party, or by any Governmental Authority having jurisdiction over any
Note Party, seeking to establish the invalidity or unenforceability thereof, or
any Note Party shall deny that any Note Party has any liability or obligation
purported to be created under any Note Document;
(o) if suit or action is commenced against the Trustee and/or any Note
Holder and, as to any suit or action brought by any Person other than the Note
Parties or an officer or employee of the Note Parties, is continued without
dismissal for 30 days after service thereof on the Trustee, that asserts, by or
on behalf of the Note Parties, any claim or legal or equitable remedy which
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seeks subordination of the claim or Lien of the Trustee and/or any Note Holder
hereunder or under any other Note Document;
(p) if any Note Party shall file any application in support of, or
shall otherwise fail to contest in good faith, a suit or action of the type set
forth in clause (o) of this Section 6.01 filed by any Person other than a
Borrower or an officer or employee of Borrowers;
(q) if an Insolvency Proceeding is commenced by or against any Note
Party, or any of its Subsidiaries (other than INW), and any of the following
events occur: (a) the applicable Note Party or the Subsidiary consents to the
institution of the Insolvency Proceeding against it, (b) the petition commencing
the Insolvency Proceeding is not timely controverted, (c) the petition
commencing the Insolvency Proceeding is not dismissed within 45 calendar days of
the date of the filing thereof, (d) an interim trustee is appointed to take
possession of all or any substantial portion of the properties or assets of, or
to operate all or any substantial portion of the business of, any Note Party or
any of its Subsidiaries, or (e) an order for relief shall have been entered
therein;
(r) (i) if any event of default occurs under any New AMERCO Note
Document or any of the Synthetic Leases; (ii) if any holder of New AMERCO Notes
contests that the Obligations hereunder constitute "Senior Indebtedness" under
the New AMERCO Notes Indenture; or (iii) any event of default occurs under the
New Credit Agreement or any other Loan Document (as defined in the New Credit
Agreement);
(s) failure by the Note Parties to register substantially all of the
Certificates of Title pursuant to Section 11.01(c) within 180 days after the
Issue Date;
(t) failure by the Note Parties to deliver the Mortgages, related
fixture filings and Mortgage Policies pursuant to Section 11.01(a), and to the
extent applicable, Section 11.09, within 60 days after the Issue Date; or
(u) if any material misstatement or material misrepresentation exists
now or hereafter in any warranty, representation, statement, or Record made to
the Holders by any Borrower, its Subsidiaries, or any officer, employee, agent,
or director of any Borrower or any of its Subsidiaries.
6.02 Acceleration.
(a) If an Event of Default (other than an Event of Default specified in
clause (q) of Section 6.01 hereof with respect to the Company) shall have
occurred and be continuing, then the Trustee or the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding, may declare all
amounts owing under the Notes to be due and payable immediately, by notice in
writing to the Company (and to the Trustee if given by Holders). Upon such
declaration of acceleration, the aggregate principal of and accrued and unpaid
interest on the outstanding Notes shall immediately become due and payable;
provided, however, that after such acceleration, but before a judgment or decree
based on acceleration, the Required Holders may rescind and annul such
acceleration, by notice in writing to the Company and the Trustee, if all Events
of Default, other than the nonpayment of accelerated principal and interest,
have been cured or waived as provided in this Agreement. If an Event of Default
specified in clause (q) of
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Section 6.01 hereof occurs with respect to the Company, all outstanding Notes
shall become due and payable without any further action or notice.
(b) In the case of an Event of Default occurring by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Company
with the intention of avoiding payment of the premium that the Company would
have had to pay if the Company then had elected to redeem the Notes, an
equivalent premium shall also become and be immediately due and payable, to the
extent permitted by law, upon the acceleration of the Notes. If an Event of
Default occurs prior to March 16, 2005 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the intention
of avoiding the prohibition on redemption of the Notes prior to March 16, 2005,
then, upon acceleration of the notes, an additional premium shall also become
and be immediately due and payable, to the extent permitted by law, in an amount
equal to 9%.
6.03 Other Remedies.
(a) If an Event of Default occurs and is continuing, the Trustee may
pursue any available remedy (including, without limitation, those set forth in
Section 11.13) to collect the payment of principal, premium, fees and Additional
Interest, if any, and interest on the Notes or to enforce the performance of any
provision of the Notes or this Agreement or the Security Documents.
(b) The Trustee may maintain a proceeding even if it does not possess
any of the Notes or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder of a Note in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy or
constitute a waiver of or acquiescence in the Event of Default. All remedies are
cumulative to the extent permitted by law; and shall be in addition to every
other remedy given hereunder or under the Security Documents or existing at law
or in equity or by statute on or after the date hereof.
6.04 Waiver of Past Defaults.
The Required Holders, by notice to the Trustee, may on behalf of the
Holders of all of the Notes waive an existing Default or Event of Default and
its consequences hereunder, except a continuing Default or Event of Default in
the payment of the principal of, premium, fees and Additional Interest, if any,
or interest on, the Notes (including in connection with an offer to purchase)
(provided that the Required Holders may rescind an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default (except nonpayment of principal or
interest that has become due solely because of the acceleration) have been cured
or waived). Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured for every
purpose of this Agreement; but no such waiver shall extend to any subsequent or
other Default or impair any right consequent thereon.
6.05 Control by Majority.
The Required Holders may direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee or
exercising any trust or power
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conferred on it. However, the Trustee may refuse to follow any direction that
conflicts with law or this Agreement, the Intercreditor Agreement, any Security
Document, or other Note Document, or that the Trustee determines may be unduly
prejudicial to the rights of other Holders of Notes or that may involve the
Trustee in personal liability.
6.06 Limitation on Suits.
A Holder of a Note may institute a proceeding with respect to this
Agreement, any of the Security Documents, the Notes or for any remedy hereunder
or thereunder only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal amount of the
then outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Note or Holders of Notes offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against any loss,
liability or expense which might be incurred in compliance with such request or
direction;
(d) the Trustee does not comply with the request within 60 days after
receipt of the request; and
(e) during such 60-day period the Required Holders do not give the
Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Agreement or any Security Document
to prejudice the rights of another Holder of a Note or to obtain a preference or
priority over another Holder of a Note.
However, such limitations do not apply to a suit instituted by a Holder
of any Note for enforcement of payment of the principal of or interest on such
Note on or after the due date therefor (after giving effect to the grace period
specified in Section 6.01(a) hereof).
6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Agreement, the right of any
Holder of a Note to receive payment of principal, premium, fees and Additional
Interest, if any, and interest on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder,
including the amounts provided for in Section 7.07 hereof.
6.08 Collection Suit by the Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of, premium, fees and Additional Interest,
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if any, and interest remaining unpaid on the Notes and interest on overdue
principal and, to the extent lawful, interest and such further amount as shall
be sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
6.09 The Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, including the
amounts provided for in Section 7.07 hereof) and the Holders of the Notes
allowed in any judicial proceedings relative to the Company (or any other
obligor under the Notes), its creditors or its property and shall be entitled
and empowered to collect, receive and distribute any money or other property
payable or deliverable on any such claims and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in connection with any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Notes or the property of the Company or of such other obligor or their creditors
or the Trustee (irrespective of whether the principal of the Notes shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, Additional Interest, premium of, fees or
interest on the Notes). Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Notes or the rights of any Holder, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
6.10 Priorities.
If the Trustee collects any money pursuant to this Article VI, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee
and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, fees and Additional Interest, if any, and
interest, ratably, without
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preference or priority of any kind, according to the amounts due and
payable on the Notes for principal, premium, fees and Additional
Interest, if any and interest, respectively;
Third: without duplication, to Holders for any other
Obligations owing to the Holders under the Notes, this Agreement or the
other Note Documents; and
Fourth: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Agreement or any Security Document or in any suit against the Trustee for any
action taken or omitted by it as a the Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the Trustee
or a suit by a Holder of a Note pursuant to Section 6.07 hereof.
6.12 The Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Agreement, the Notes or any
other Note Document may be prosecuted and enforced by the Trustee without the
possession of any of the Notes or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name and as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee or its agents and counsel,
be for the ratable benefit of the Holders in respect of which such judgment has
been recovered.
6.13 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Agreement, any Security Document or any other
Note Document and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and under such Security
Document or any other Note Document and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
6.14 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Notes in the last paragraph of Section
2.07, no right or remedy herein
77
conferred or conferred under any Security Document or other Note Document upon
or reserved to the Trustee or to the Holders is intended to be exclusive of any
other right or remedy, and every right and remedy shall, to the extent permitted
by law, be cumulative and in addition to every other right and remedy given
hereunder or now or hereafter existing at law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
6.15 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or acquiescence
therein. Every right and remedy given by this Agreement or by law to the Trustee
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE VII
TRUSTEE
7.01 Duties of the Trustee.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise such of the rights and powers vested in it by this Agreement and
the other Note Documents, and use the same degree of care and skill in its
exercise, as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely by
the express provisions of this Agreement or any other Note Document and
the Trustee need perform only those duties that are specifically set
forth in this Agreement and the other Note Documents and no others, and
no implied covenants or obligations shall be read into this Agreement
or any other Note Document against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement and the Security Documents. However, the Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Agreement and the Security
Documents, but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph (c) does not limit the effect of paragraph
(b) or (d) of this Section 7.01;
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(ii) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it is proved that
the Trustee was negligent in ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) No provision of this Agreement or any Security Document shall
require the Trustee to expend or risk its own funds or incur any liability. The
Trustee shall be under no obligation to exercise any of its rights and powers
under this Agreement or any Security Document at the request or direction of any
Holders, unless such Holder shall have offered to the Trustee security and/or
indemnity satisfactory to it against the cost, loss, liability or expense that
might be incurred by it in compliance with such request or direction.
(e) Whether or not therein expressly so provided, every provision of
this Agreement that in any way relates to the Trustee is subject to Sections
7.01(a), (b), (c) and (d).
(f) The Trustee shall not be liable for interest on any money received
by it except as the Trustee may agree in writing with the Company. Money held in
trust by the Trustee need not be segregated from other funds except to the
extent required by law.
(g) Each Holder of Notes, by its acceptance thereof, consents and
agrees to the terms of the Security Documents and Intercreditor Agreement as the
same may be in effect or may be amended from time to time in accordance with
their respective terms and the terms hereof and authorizes and directs the
Trustee (in its capacities as trustee and Collateral Trustee for the Holders) to
enter into the Security Documents and Intercreditor Agreement upon the execution
thereof by the other parties thereto and to perform its obligations and exercise
its rights thereunder in accordance therewith.
(h) As of the Issue Date, Xxxxx Fargo Bank, N.A. is acting as the
Trustee and the Collateral Trustee hereunder. Accordingly, any references to the
"Trustee" herein refers to Xxxxx Fargo Bank, N.A. as serving in both such
capacities. At such time that a successor to Xxxxx Fargo Bank, N.A., is
appointed as the Trustee hereunder or as the Collateral Trustee hereunder, the
duties, rights and obligations of the "Trustee" as set forth in this Agreement
on the Issue Date shall be segregated amongst each of the successors in writing.
7.02 Rights of the Trustee.
(a) The Trustee may conclusively rely upon any document believed by it
to be genuine and to have been signed or presented by the proper Person. The
Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee authenticates Notes, takes any other act or
refrains from acting, it may require an Officer's Certificate or an opinion of
counsel or both. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Officer's Certificate or opinion
of counsel or both. The Trustee may consult with counsel of its selection and
the advice of such counsel or any opinion of counsel shall be full and complete
authorization
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and protection from liability in respect of any action taken, suffered or
omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any such attorneys or agent
appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Agreement, the Security Documents and the other
Note Documents. The Trustee shall not be liable for any claims, losses,
liabilities, damages, costs, expenses, judgments (including reasonable
attorney's fees and expenses) due to forces beyond its reasonable control,
including strikes, work stoppages, acts of God and interruptions, losses or
malfunctions of utilities, communications or computer (software or hardware)
services.
(e) Unless otherwise specifically provided in this Agreement or any
Security Document, any demand, request, direction or notice from the Company
shall be sufficient if signed by an Officer of the Company.
(f) Except as required hereunder or under the other Note Documents, or
as required in its capacity as Collateral Trustee, the Trustee shall not be
bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it sees
fit, and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and premises
of any Borrower, personally or by agent or attorney, and shall incur no
liability or additional liability of any kind by reason of such inquiry or
investigation.
(g) The Trustee shall not be deemed to have notice of any Default or
Event of Default except (i) any Event of Default occurring pursuant to Section
6.01(a) or Section 6.01(b), or (ii) any Default or Event of Default of which the
Trustee shall have received written notification at the Corporate Trust Office
of the Trustee (given in accordance with Section 13.02 hereof and specifically
identifying such Default or Event of Default) or a Responsible Officer of the
Trustee has actual knowledge thereof.
(h) The rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, whether as the Trustee, Collateral Trustee, Paying Agent, Registrar
or otherwise, and to each agent, Depositary Custodian, Co-Collateral Trustee and
other Person employed to act hereunder, and to the Trustee or any successor when
acting in its capacity as the Trustee, Collateral Trustee or any other capacity
under the Intercreditor Agreement, the Security Documents and other Note
Documents to the same extent as if explicitly set forth in the Intercreditor
Agreement, the Security Documents and other Note Documents.
(i) The Trustee may request that the Company deliver an Officer's
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified
80
actions pursuant to this Agreement, which Officer's Certificate may be signed by
any Person authorized to sign an Officer's Certificate, including any Person
specified as so authorized in any such certificate previously delivered and not
superseded.
(j) The Trustee shall not be deemed to have notice of or have a duty to
determine whether any information that it may receive with respect to the
Company or any other Note Party, or that it or any Note Holder may provide to
the Holders, is material, nonpublic information of a type that should not be
used by the recipient to trade in securities of the Company, except for such
information identified by the Company in writing on the face thereof as
material, non-public information. Except with respect to the Trustee's
obligation to require Holders to enter into a standstill and confidentiality
agreement as set forth in Section 4.04, the Trustee shall not be responsible for
how such information is used or for obtaining any agreement from the recipient
of such information with respect to the use thereof.
7.03 Individual Rights of the Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not the
Trustee. Any Agent may do the same with like rights and duties. The Trustee
shall comply with Section 310(b) of the TIA. The Trustee is also subject to
Sections 7.10 and 7.11 hereof.
7.04 The Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Agreement, the Security Documents, the Notes
or the Note Guarantees, it shall not be accountable for the Company's use of the
proceeds from the Notes or any money paid to the Company or upon the Company's
direction under any provision of this Agreement, it shall not be responsible for
the use or application of any money received by any Paying Agent other than the
Trustee, and it shall not be responsible for any statement or recital herein or
any statement in the Notes or any other document in connection with the sale of
the Notes or pursuant to this Agreement other than its certificate of
authentication.
7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
actually known to a Responsible Officer of the Trustee, the Trustee shall mail
to Holders of Notes a notice of the Default or Event of Default within 30 days
after it becomes known to such Responsible Officer of the Trustee. Except in the
case of a Default or Event of Default (a) in payment of principal of, premium,
fees, Additional Interest, if any, or interest on any Note or (b) in compliance
with Section 5.01 hereof, the Trustee may withhold the notice if and so long as
a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of the Holders of the Notes. The
Trustee shall not be required to take notice or be deemed to have notice or
knowledge of any Default or Event of Default hereunder (expect failure by the
Company to make any payments to the Trustee required to be made hereunder)
unless a Responsible Officer of the Trustee is specifically notified in writing
of such Default or Event of Default by the Company or by a Holder in accordance
with Section 13.02 hereof and, in the
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absence of such notice, the Trustee may conclusively assume that no Default or
Event of Default has occurred and is continuing.
7.06 Reports by the Trustee to Holders of the Notes.
Within 60 days after each September 1 beginning with the September 1
following the date of this Agreement, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if no
event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail
all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA Section 313(d).
The Company shall promptly notify the Trustee when the Notes are listed on any
stock exchange or of any delisting thereof.
Upon the written request of a Holder, the Trustee shall deliver as soon
as reasonably practicable to such Holder any financial statements, certificates
or reports delivered to the Trustee by the Company in connection with this
Agreement; provided that the Trustee shall not deliver any material, non-public
information (all information received pursuant to Section 4.04 or pursuant to
other provisions of this Agreement and identified as such in writing by the
Company on the face thereof, except for information received pursuant to Section
4.04(d) and Section 4.04(i)) received from any Note Party to a Holder of the
Notes unless such Holder enters into a standstill and confidentiality agreement
in form and substance satisfactory to the Trustee and the Company, which shall
provide for, among other things, that the recipients of such information shall
indemnify the Trustee for any misuse or improper disclosure of such information.
Notwithstanding Section 13.02 of this Agreement, to satisfy the delivery
requirements to such Holder under this paragraph, the Trustee may at its option
either (a) deliver such information in accordance with Section 13.02 or (b) file
or post electronically such information in a manner and method mutually
acceptable to the Company and the Trustee and that provides for such Holder's
access to such information.
7.07 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Agreement, the Security Documents and
other Note Documents and services hereunder and thereunder as the Company and
the Trustee shall agree to in writing from time to time. The Trustee's
compensation shall not be limited by any law on compensation of the trustee of
an express trust. The Company shall reimburse the Trustee promptly upon request
for all reasonable disbursements, advances and expenses incurred or made by it
in addition to the compensation for its services. Such expenses shall include
the reasonable compensation, disbursements and expenses of the Trustee's agents
and counsel.
The Company shall indemnify the Trustee and any predecessor the Trustee
(and each of their respective officers, directors, employees and agents) against
any and all losses, liabilities or expenses (including reasonable attorneys'
fees and expenses) incurred by it including taxes
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(other than taxes based upon the income of the Trustee) arising out of or in
connection with the acceptance or administration of its duties under this
Agreement and the other Note Documents, including the costs and expenses of
enforcing this Agreement and the other Note Documents against the Company
(including this Section 7.07) and defending itself against any claim (whether
asserted by the Company or any Holder or any other person) or liability in
connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which shall not be unreasonably
withheld. The Company shall not, without the prior written consent of the
Trustee, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification has been sought under this Section unless such
settlement, compromise or consent (i) includes an unconditional release of the
Trustee from all liability arising out of such litigation, investigation,
proceeding or claim, and (ii) does not include a statement as to, or an
admission or, fault, culpability or a failure to act by or on behalf of the
Trustee.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Agreement or any other Note Document, any
rejection or termination of this Agreement or any Note Document under any
bankruptcy law or the resignation or removal of the Trustee.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Agreement and the other Note Documents.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(q) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
7.08 Replacement of the Trustee.
A resignation or removal of the Trustee and appointment of a successor
Trustee shall become effective only upon the successor Trustee's acceptance of
appointment as provided in this Section. Unless Xxxxx Fargo Bank, N.A. will
remain a Co-Collateral Trustee, a resignation or removal of the Trustee in its
capacity as Collateral Trustee shall become effective and the successor Trustee
or Co-Collateral Trustee shall have all the rights, powers and duties of the
Trustee (with respect to Collateral) and/or the Collateral Trustee under this
Agreement and
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the other Note Documents only upon the successor Collateral Trustee's or the
successor Xxxxxxx's acceptance of appointment as provided in this Article and
the completion in full of the assignment of all Security Documents, filings,
recordation and all other actions necessary and appropriate to maintain the
perfection of the Liens in favor of the Trustee for the benefit of the Holders.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Required Holders may
remove the Trustee by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
(b) the Trustee is adjudged a bankrupt or an insolvent or an order for
relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or its
property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of the Trustee for any reason, the Company shall promptly appoint a
successor Trustee. Within one year after the successor Trustee takes office, the
Required Holders may appoint a successor Trustee to replace the successor
Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company, or
the Holders of at least 10% in principal amount of the then outstanding Notes
may, at the expense of the Company, petition any court of competent jurisdiction
for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10, such Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Agreement and the other Note Documents. The successor Trustee shall
mail a notice of its succession to Holders. Unless Xxxxx Fargo Bank, N.A. will
remain a Co-Collateral Trustee, a resignation or removal of the Trustee in its
capacity as Collateral Trustee shall become effective and the successor Trustee
or Co-Collateral Trustee shall have all the rights, powers and duties of the
Trustee and/or the Collateral Trustee under this Agreement and the other Note
Documents only upon the successor Collateral Trustee's or the successor
Trustee's acceptance of appointment as provided in this Article and the
completion in full of the assignment of all Security Documents, filings,
recordation and all other actions necessary and appropriate to maintain the
perfection of the Liens in favor of the Trustee for the benefit of the Holders.
The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee; provided all sums owing to the Trustee
hereunder have been paid and subject
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to the Lien provided for in Section 7.07 hereof. Notwithstanding replacement of
the Trustee pursuant to this Section 7.08, the Company's obligations under
Section 7.07 hereof shall continue for the benefit of the retiring the Trustee
and the Company shall pay to any such replaced or removed Trustee all amounts
owed under Section 7.07 upon such replacement or removal.
If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 60 days after the giving of such notice of
resignation or removal, the resigning or removed Trustee, as the case may be,
may petition, at the expense of the Company, any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Notes.
7.09 Successor Trustee by Xxxxxx, etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized under such laws to exercise corporate
trustee power, that is subject to supervision or examination by federal or state
authorities and that has a combined capital and surplus of at least $100 million
as set forth in its most recent published annual report of condition.
This Agreement shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
The provisions of TIA Section 311 shall apply to the Company, as obligor on the
Notes.
7.12 Additional Co-Collateral Trustees; Separate Collateral Trustees.
(a) If at any time or times it shall be necessary or prudent in order
to conform to any law of any jurisdiction in which any of the Collateral shall
be located or deemed located, or the Trustee shall be advised by counsel,
satisfactory to it, that it is necessary or prudent in the interest of the
Holders, or the Required Holders shall in writing so request, or the Trustee
shall deem it desirable, the Trustee and the Company shall, and shall cause each
Guarantor to, execute and deliver all instruments and agreements necessary or
proper to constitute another bank or trust company, or one or more persons
approved by the Trustee and reasonably satisfactory to the Company either (i) to
act as Co-Collateral Trustee or Co-Collateral Trustees of all or any of the
Collateral, jointly with the Trustee originally named herein or any successor or
successors, or (ii) to act as separate or a replacement Collateral Trustee or
Collateral Trustees of any such property or (iii) to replace Collateral Trustee
as a successor Collateral Trustee. In the event the Company and
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Guarantors shall not have joined in the execution of such instruments and
agreements within 10 days after the receipt of a written request from the
Trustee so to do, or in case an Event of Default shall have occurred and be
continuing, the Trustee may act under the foregoing provisions of this Section
7.12 without the concurrence of the Company and Guarantors, and the Company and
the Guarantors hereby irrevocably appoint the Trustee as their agent and
attorney to act for them under the foregoing provisions of this Section 7.12 in
either of such contingencies. Unless Xxxxx Fargo Bank, N.A. will remain a
Co-Collateral Trustee, a resignation or removal of the Trustee in its capacity
as Collateral Trustee shall become effective and the successor Trustee or
Co-Collateral Trustee shall have all the rights, powers and duties of the
Trustee (with respect to Collateral) and/or the Collateral Trustee under this
Agreement and the other Note Documents only upon the successor Collateral
Trustee's or the successor Trustee's acceptance of appointment as provided in
this Article and the completion in full of the assignment of all Security
Documents, filings, recordation and all other actions necessary and appropriate
to maintain the perfection of the Liens in favor of the Trustee for the benefit
of the Holders.
(b) Every separate Collateral Trustee and every Co-Collateral Trustee
appointed in accordance with Section 7.12(a)(i) or (ii) hereof, shall, to the
extent permitted by law, be appointed and act and be such, subject to the
following provisions and conditions, namely:
(i) all rights, powers, duties and obligations conferred upon
the Collateral Trustee in respect of the custody, control and
management of moneys, papers, instruments or securities shall be
exercised solely by the Trustee, or its successors as the Trustee
hereunder;
(ii) all rights, powers, duties and obligations (including the
obligations contained in the Intercreditor Agreement) conferred or
imposed upon the Collateral Trustee hereunder shall be conferred or
imposed and exercised or performed by the Collateral Trustee and such
separate Collateral Trustee or separate Collateral Trustees or
Co-Collateral Trustee or Co-Collateral Trustees, jointly, as shall be
provided in the instrument appointing such separate Collateral Trustee
or separate Collateral Trustees or Co-Collateral Trustee or
Co-Collateral Trustees, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Collateral Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations shall be exercised and performed by such separate
Collateral Trustee or separate Collateral Trustees or Co-Collateral
Trustee or Co-Collateral Trustees;
(iii) no power given hereby to, or which it is provided hereby
may be exercised by, any such Co-Collateral Trustee or Co-Collateral
Trustees or separate Collateral Trustee or separate Collateral
Trustees, shall be exercised hereunder by such Co-Collateral Trustee or
Co-Collateral Trustees or separate Collateral Trustee or separate
Collateral Trustees, except jointly with, or with the consent in
writing of, the Collateral Trustee, anything herein contained to the
contrary notwithstanding;
(iv) no Collateral Trustee hereunder shall be personally
liable by reason of any act or omission of any other Collateral Trustee
hereunder; and
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(v) the Company, Guarantors and the Trustee, at any time by an
instrument in writing, executed by them jointly, may accept the
resignation of or remove any such separate Collateral Trustee or
Co-Collateral Trustee, and in that case, by an instrument in writing
executed by the Guarantors and the Trustee jointly, may appoint a
successor to such separate Collateral Trustee or Co-Collateral Trustee,
as the case may be, anything herein contained to the contrary
notwithstanding. In the event that the Company and the Guarantors shall
not have joined in the execution of any instrument within 10 days after
the receipt of a written request from the Trustee so to do, or in case
an Event of Default shall have occurred and be continuing, the Trustee
shall have the power to accept the resignation of or remove any such
separate Collateral Trustee or Co-Collateral Trustee and to appoint a
successor without the concurrence of the Company and the Guarantors,
the Company and the Guarantors hereby irrevocably appointing the
Trustee their agent and attorney to act for them in such connection in
either of such contingencies.
(c) Every successor Collateral Trustee appointed in accordance with
Section 7.12(a)(iii) hereof shall, upon the acceptance of any appointment as
Collateral Trustee, thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Collateral Trustee, and the
retiring Collateral Trustee shall be discharged from its duties and obligations
hereunder applicable to it as Collateral Trustee. The replacement of Collateral
Trustee by a successor Collateral Trustee shall not be deemed as a resignation
or removal of the Trustee as the Trustee under this Agreement unless the Trustee
expressly resigns as the Trustee or is removed in accordance with Section 7.08
hereof. The replacement of the Trustee by a successor Trustee in accordance with
Section 7.08 hereof shall not be deemed as a resignation or removal of such
Person as the Collateral Trustee under this Agreement unless such Person
expressly resigns as Collateral Trustee in accordance with this Section 7.12 In
the event that the Trustee and Collateral Trustee shall not be the same Person,
this Agreement and the Note Documents shall be modified as advisable and
mutually agreeable among the Company, the Trustee and the Collateral Trustee to
delineate the rights, powers, privileges and duties of the Trustee and
Collateral Trustee. Unless Xxxxx Fargo Bank, N.A. will remain a Co-Collateral
Trustee, a resignation or removal of the Trustee in its capacity as Collateral
Trustee shall become effective and the successor Trustee or Co-Collateral
Trustee shall have all the rights, powers and duties of the Trustee (with
respect to Collateral) and/or the Collateral Trustee under this Agreement and
the other Note Documents only upon the successor Collateral Trustee's or the
successor Trustee's acceptance of appointment as provided in this Article and
the completion in full of the assignment of all Security Documents, filings,
recordation and all other actions necessary and appropriate to maintain the
perfection of the Liens in favor of the Trustee for the benefit of the Holders.
7.13 Expenses.
The Company and each other Note Party shall pay upon demand to the
Trustee, the Collateral Trustee or to any Holder the amount of any and all
reasonable expenses, including reasonable fees and expenses of its counsel (and
any local counsel) and of any experts and agents, which such party may incur in
connection with the replacement, removal, resignation, or appointment of a
successor, of the Trustee or Collateral Trustee, including, without limitation,
any and all expenses (including reasonable fees and expenses of such party's
counsel) incurred with respect to the assignment of all Security Documents,
filings, recordation and all other
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actions necessary and appropriate to maintain the perfection of the Liens in
favor of the successor Trustee or Collateral Trustee for the benefit of the
Holders.
ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may at any time elect to have either Section 8.02 or 8.03
hereof be applied to all outstanding Notes upon compliance with the conditions
set forth below in this Article VIII.
8.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes and all
obligations of the Guarantors discharged with respect to the Note Guarantees on
the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company and the
Guarantors shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes and the Note Guarantees, respectively,
which shall thereafter be deemed to be "outstanding" only for the purposes of
Section 8.05 hereof and the other Sections of this Agreement referred to in (a)
and (b) below, and to have satisfied all its other obligations under such Notes
and this Agreement (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Notes to receive
solely from the trust fund described in Section 8.04 hereof, and as more fully
set forth in such Section, payments in respect of the principal of, premium,
fees and Additional Interest, if any, and interest on such Notes when such
payments are due, (b) the Company's obligations with respect to such Notes under
Article II and Sections 4.02, 4.12, 8.05, 8.06 and 8.07 hereof, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and the under the
Security Documents and the Company's and Guarantor's obligations in connection
therewith and (d) this Article VIII. Subject to compliance with this Article
VIII, the Company may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03 hereof.
8.03 Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and the Guarantors shall, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be
released from their obligations under the covenants contained in Article IV
except Sections 4.01, 4.02 and 4.12 and Article V, except Section 5.25 and with
respect to the Company, Section 5.03 hereof with respect to the outstanding
Notes on and after the date the conditions set forth in Section 8.04 are
satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall thereafter
be deemed not "outstanding" for the purposes of
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any direction, waiver, consent or declaration or act of Holders (and the
consequences of any thereof) in connection with such covenants, but shall
continue to be deemed "outstanding" for all other purposes hereunder (it being
understood that such Notes shall not be deemed outstanding for accounting
purposes). For this purpose, Covenant Defeasance means that, with respect to the
outstanding Notes, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth in any such
covenant, whether directly or indirectly, by reason of any reference elsewhere
herein to any such covenant or by reason of any reference in any such covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section 6.01
hereof, but, except as specified above, the remainder of this Agreement, the
Security Documents and such Notes shall be unaffected thereby. In addition, upon
the Company's exercise under Section 8.01 hereof of the option applicable to
this Section 8.03 hereof, subject to the satisfaction of the conditions set
forth in Section 8.04 hereof, Sections 6.01(c) through 6.01(m), Sections 6.01(o)
through 6.01(p), and Section 6.01(r) through Section 6.01(t) hereof shall not
constitute Events of Default.
8.04 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in trust,
for the benefit of the Holders, U.S. legal tender, U.S. Government Obligations
or a combination thereof, in such amounts as will be sufficient (without
reinvestment) in the opinion of a nationally recognized firm of independent
public accountants selected and paid for by the Company, to pay the principal of
and interest on the Notes on the stated date for payment or on the redemption
date of the principal or installment of principal of or interest on the Notes,
and the Holders must have a valid, perfected, exclusive security interest in
such trust;
(b) in the case of an election under Section 8.02 hereof, the Company
shall have delivered to the Trustee an opinion of counsel in the United States
reasonably acceptable to the Trustee confirming that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (ii) since the date of this Agreement, there has been a change in the
applicable U.S. federal income tax law, in either case to the effect that, and
based thereon such opinion of counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Legal Defeasance and will be subject to
U.S. federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the Company
shall have delivered to the Trustee an opinion of counsel in the United States
reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Covenant Defeasance and will be
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subject to U.S. federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such Covenant Defeasance had
not occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit and the
grant of any Lien securing such borrowing);
(e) such Legal Defeasance or Covenant Defeasance shall not result in a
breach or violation of, or constitute a default under this Agreement or any
other material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(f) the Company shall have delivered to the Trustee an Officer's
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company;
(g) the Company shall have delivered to the Trustee an Officer's
Certificate and an opinion of counsel, each stating that the conditions provided
for in, in the case of the Officer's Certificate, clauses (a) through (f) and,
in the case of the opinion of counsel, clauses (a) (with respect to the validity
and perfection of the security interest), (b) and/or (c), (e) and (h) of this
Section 8.04 have been complied with;
(h) the Company shall have granted a first priority perfected security
interest in the deposit described in Section 8.04(a) for the benefit of the
Trustee on behalf of the Holders, and the Bank Lenders' Agent shall have
released all Liens with respect thereto and consented to such defeasance on
behalf of the Bank Lenders; and
(i) in the event all or any portion of the Notes are to be redeemed
through such irrevocable trust, the Company must make arrangements reasonably
satisfactory to the Trustee, at the time of such deposit, for the giving of
notice of such redemption or redemptions by the Trustee in the name and at the
expense of the Company.
8.05 Deposited Money and U.S. Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Agreement, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium and Additional Interest, if
any, and interest, but such money need not be segregated from other funds except
to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or U.S. Government
Obligations deposited pursuant to
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Section 8.04 hereof or the principal and interest received in respect thereof
other than any such tax, fee or other charge which by law is for the account of
the Holders of the outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or U.S. Government Obligations held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants selected and paid for by the Company, expressed
in a written certification thereof delivered to the Trustee (which may be the
opinion delivered under Section 8.04(a) hereof), are in excess of the amount
thereof that would then be required to be deposited to effect an equivalent
Legal Defeasance or Covenant Defeasance.
8.06 Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, fees,
Additional Interest, if any, or interest on any Note and remaining unclaimed for
two years after such principal, and premium and fees, if any, or interest has
become due and payable shall be paid to the Company on its request or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Note shall thereafter look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, shall at the expense of the Company cause to be
published once, in The New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any cash or U.S.
Government Obligations in accordance with Section 8.02 or 8.03 hereof by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application or such cash or U.S.
Government Obligations are insufficient to pay the principal of and interest on
the Notes when due, then the Company's obligations under this Agreement and the
Notes shall be revived and reinstated as though no deposit had occurred pursuant
to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof; provided, however, that, if the Company makes any payment of principal
of, premium, fees and Additional Interest, if any, or interest on any Note
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money held by the Trustee or Paying Agent.
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ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Agreement, the Company and the
Trustee may amend or supplement this Agreement, the Note Guarantees or the Notes
without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
(b) to provide for uncertificated Notes in addition to or in place of
certificated Notes;
(c) to release any Guarantor from any of its obligations under its Note
Guarantee or this Agreement (to the extent permitted by this Agreement);
(d) to make any change that does not materially adversely affect the
legal rights hereunder of any Holder of the Notes; or
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Agreement under the TIA.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in Section
9.06 hereof, the Trustee shall join with the Company and the Guarantors in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Agreement and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental indenture that affects its
own rights, duties or immunities under this Agreement or under the Security
Documents or otherwise.
9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company and the
Trustee may amend or supplement this Agreement (including Section 4.15 hereof),
the Note Guarantees and the Notes with the consent of the Required Holders
(including consents obtained in connection with a tender offer or exchange offer
for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof,
any existing Default (other than a Default in the payment of the principal of,
premium, fees and Additional Interest, if any, or interest on the Notes) under,
or compliance with any provision of, this Agreement, the Note Guarantees or the
Notes may be waived with the consent of the Required Holders (including consents
obtained in connection with a tender offer or exchange offer for, or purchase
of, the Notes).
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 9.06 hereof, the
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Trustee shall join with the Company in the execution of such amended or
supplemental indenture unless such amended or supplemental indenture directly
affects the Trustee's own rights, duties or immunities under this Agreement or
under any Security Document or otherwise, in which case the Trustee may in its
discretion, but shall not be obligated to, enter into such amended or
supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the amendment, supplement or waiver. Any failure of
the Company to mail such notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such amended or supplemental
indenture or waiver. Subject to Sections 6.04 and 6.07 hereof, the Required
Holders may waive compliance in a particular instance by the Company with any
provision of this Agreement or the Notes. However, without the consent of each
Holder affected, an amendment or waiver under this Section 9.02 may not (with
respect to any Notes held by a non-consenting Holder):
(a) change the maturity of any Note;
(b) reduce the amount, extend the due date or otherwise affect the
terms of any scheduled payment of premium, fees or Additional Interest on, if
any, or interest on or principal of the Notes;
(c) change the date on which any Notes are subject to redemption or
otherwise alter the provisions with respect to the redemption of the Notes or
waive a redemption payment with respect to any Note;
(d) make any Note payable in money or currency other than that stated
in the Notes;
(e) modify or change any provision of this Agreement or its related
definitions to affect the ranking of the Notes or any Note Guarantee in a manner
that adversely affects the Holders;
(f) reduce the percentage of Holders necessary to consent to an
amendment or waiver to this Agreement or the Notes;
(g) impair the rights of Holders to receive payments of principal of or
interest on the Notes;
(h) release any Guarantor from any of its obligations under its Note
Guarantee or this Agreement, other than as permitted by this Agreement;
(i) make any change in these amendment and waiver provisions;
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(j) release Collateral other than in accordance with the procedures set
forth in the Security Documents, or amend, waive or otherwise modify any
provisions in the Note Documents with respect to the release of Collateral;
(k) except as permitted by this Agreement and the Security Documents,
create any Lien on the Collateral ranking prior to, or on parity with, the
security interest created by this Agreement and the Security Documents or
deprive any Holder of the benefit of the Lien of this Agreement and the Security
Documents; or
(l) waive a Default or Event of Default in the payment of principal of
or premium or Additional Interest, if any, interest on, or redemption payment
with respect to, any Note (other than a Default in the payment of an amount due
as a result of an acceleration if the Holders rescind such acceleration pursuant
to Section 6.2).
Any amendment to Section 4.15 or the related definitions that could
adversely affect the rights of any Holder shall require the consent of the
Holders of at least 66 2/3% in aggregate principal amount of the Notes then
outstanding.
In connection with any amendment, supplement or waiver, the Company
may, but shall not be obligated to, offer any Holder who consents to such
amendment, supplement or waiver, or to all Holders, consideration for such
Holder's consent to such amendment, supplement or waiver.
9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Agreement or the Notes shall be
set forth in an amended or supplemental indenture that complies with the TIA as
then in effect.
9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Xxxxxx's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company may issue
and the Trustee shall, upon receipt of an Authentication Order, authenticate new
Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
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9.06 The Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental indenture authorized
pursuant to this Article IX if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee under this
Agreement, any Security Document or other Note Document or otherwise. If it
does, the Trustee may but need not sign it. The Company may not sign an
amendment or supplemental indenture until the Board of Directors approves it. In
executing any amended or supplemental indenture, the Trustee shall be entitled
to receive and (subject to Section 7.01 hereof) shall be fully protected in
relying upon, in addition to the documents required by Section 12.04 hereof, an
Officer's Certificate and an opinion of counsel.
9.07 Effect of Amendment of, Refinancing of or Termination of New
Credit Agreement.
(a) Notice; Effectiveness. If the New Credit Agreement is amended,
modified, supplemented or terminated, or any provision therein waived, the
Company shall deliver a copy of such waiver, amendment, modification, supplement
or notice of such termination, as the case may be, to the Trustee. In the case
of an amendment, modification or supplement of the New Credit Agreement or
waiver of a provision therein that shall result in the amendment, modification
or supplement of this Agreement or waiver of an Event of Default pursuant to
this Section 9.07, such notice shall also detail such waiver or amendment,
modification or supplement to this Agreement in the form of an amended and
restated indenture, supplemental indenture or other amendment that identifies
such waiver, amendment, modification or supplement with specificity. Any such
waiver with respect to this Agreement or amendment, modification or supplement
to this Agreement shall comply with the TIA as then in effect and be effective
only upon receipt of such notice by the Trustee and the granting of any consent
of Holders required hereby. The provisions of this Section 9.07 shall control
over anything to the contrary in this Agreement. In no event shall any waiver,
amendment, modification or supplement pursuant to this Section 9.07: (i) be used
to cure or avoid an imminent potential Default and/or Event of Default in this
Agreement or an imminent potential default and/ or event of default in the New
Credit Agreement, except as provided in subsection (d) below relating to waivers
of Events of Default, (ii) amend, modify or supersede anything in this Agreement
or the other Note Documents other than Articles IV or V (and/or defined terms
used therein) of this Agreement, or (iii) amend, modify or supersede anything
else that is fundamental to the transactions contemplated by this Agreement,
such as the interest rate and maturity date of the Notes and the rights of the
Holders to transfer or exchange their Notes. Notwithstanding anything to the
contrary in this Section 9.07, no amendment, modification or supplement of any
provision of this Agreement, any Security Document or other Note Document shall
adversely affect the rights, duties, liabilities or immunities of the Trustee
under this Agreement, any Security Document or otherwise without the prior
written consent of the Trustee.
(b) Change in Accounting Principles. If any change in accounting
principles from those used in the preparation of the audited financial
statements referred to in Section 4.04 hereafter occasioned by the promulgation
of any rule, regulation, pronouncement or opinion by or required by the
Financial Accounting Standards Board (or successors thereto or agencies with
similar functions) result in a change in the method of calculation of financial
covenants, standards or terms found in the covenants contained in the New Credit
Agreement that correspond to Article IV or Article V of this Agreement, then the
method of calculation of
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financial covenants, standards or terms found in Article IV and Article V hereof
shall be automatically changed in the same manner and to the same extent as
provided in the New Credit Agreement.
(c) Amendment. If there are any amendments, modifications or
supplements to the covenants contained in Articles 6 and 7 (and/or defined terms
used therein) of the New Credit Agreement after the Issue Date, then the
corresponding covenants contained in Articles IV and V (and/or defined terms
used therein) of this Agreement shall be automatically amended, modified or
supplemented in the same manner and to the same extent as provided in the New
Credit Agreement; provided, however, that before this Agreement shall be so
amended, modified or supplemented, the Required Holders must consent to any such
amendments, modifications or supplements of the New Credit Agreement that if
applied to this Agreement would have the effect of:
(i) modifying or superseding Section 5.01 (and/or defined
terms used therein) or otherwise allowing (whether through an
amendment, modification or supplement of the covenant contained in the
New Credit Agreement, as of the Issue Date, that corresponds to Section
5.01 of this Agreement or an amendment, modification, or supplement of
some other provision or definition of the New Credit Agreement that has
a corresponding provision or definition herein) the Company and/or the
relevant Note Parties to incur, assume, suffer to exist, guarantee,
refinance or otherwise become or remain, directly or indirectly, liable
with respect to any additional Indebtedness (other than Capital
Leases), except subordinated Indebtedness (other than Capital Leases)
which (A) (1) is in an aggregate amount less than or equal to
$50,000,000 in excess of the amount of subordinated Indebtedness
permitted under this Agreement, (2) matures later than one year after
the maturity date of the Notes, (3) has an original issue discount less
than 10%, and (4) has a rate of interest at the prevailing market
interest rate applicable for similar Indebtedness measured at the time
such additional subordinated Indebtedness is incurred, or (B) (1) is
incurred to refinance the New AMERCO Notes, (2) is in an aggregate
amount less than or equal to $200,000,000, (3) matures later than one
year after the maturity date of the Notes, (4) has an original issue
discount less than 10%, and (5) has a rate of interest at the
prevailing market interest rate applicable for similar Indebtedness
measured at the time such additional subordinated Indebtedness is
incurred,
(ii) modifying or superseding Sections 5.04 or 5.21 (and/or
defined terms used therein) or otherwise allowing (whether through an
amendment, modification or supplement of the covenant contained in the
New Credit Agreement that corresponds to Sections 5.04 or 5.21, the
definition in the New Credit Agreement that corresponds to clause (o)
of the definition of "Permitted Dispositions" in Section 1.01 or some
other provision or definition of the New Credit Agreement that has a
corresponding provision or definition herein) any additional disposal
of assets, except Permitted Dispositions of Real Property Collateral of
the type described in clause (o) of the definition of "Permitted
Dispositions," provided that the aggregate proceeds of such Permitted
Disposition of Real Property Collateral in excess of $75,000,000 in
total after the Issue Date shall be used only to permanently reduce the
first priority Indebtedness incurred by the Note Parties under the New
Credit Agreement,
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(iii) amending or superseding the definition of "ECF Carry
Forward Amount" or "Excess Availability Test" in Section 1.01 or the
provisions in which such definitions are used,
(iv) modifying or superseding Section 5.08 (and/or defined
terms used therein) or otherwise amending (whether through an
amendment, modification or supplement of the covenant contained in the
New Credit Agreement that corresponds to Section 5.08 or some other
provision or definition of the New Credit Agreement that has a
corresponding provision or definition herein) the amounts allowed for
any prepayment or amendment in accordance with Section 5.08 as of the
Issue Date,
(v) modifying or superseding Section 5.11 (and/or defined
terms used therein) or otherwise amending (whether through an
amendment, modification or supplement of the covenant contained in the
New Credit Agreement that corresponds to Section 5.11 or some other
provision or definition of the New Credit Agreement that has a
corresponding provision or definition herein) the amounts allowed for
any distribution in accordance with Section 5.11 as of the Issue Date,
other than as currently provided for in this Agreement,
(vi) modifying or superseding Section 5.09 or otherwise
amending (whether through an amendment, modification or supplement of
the covenant contained in the New Credit Agreement, as of the Issue
Date, that corresponds to Section 5.09 of this Agreement, the
definition in the New Credit Agreement that corresponds to the
definition of "Change of Control" in Section 1.01 or some other
provision or definition of the New Credit Agreement that has a
corresponding provision or definition herein) the change of control
restrictions contained in Section 5.09 as of the Issue Date,
(vii) modifying or superseding Section 5.14 or otherwise
amending (whether through an amendment, modification or supplement of
the covenant contained in the New Credit Agreement, as of the Issue
Date, that corresponds to Section 5.14 of this Agreement, the
definition in the New Credit Agreement that corresponds to the
definition of "Affiliate" in Section 1.01 or some other provision or
definition of the New Credit Agreement that has a corresponding
provision or definition herein) the restrictions on transactions with
Affiliates contained in Section 5.14 as of the Issue Date,
(viii) modifying or superseding clause (k) of the definition
of "Permitted Investment" in Section 1.01 or otherwise amending
(whether through an amendment, modification or supplement of the
definition contained in the New Credit Agreement, as of the Issue Date,
that corresponds to clause (k) of the definition of "Permitted
Investment" in Section 1.01 or some other provision or definition of
the New Credit Agreement that has a corresponding provision or
definition herein) the ability of the Note Parties to make Investments
(other than those contained in (a) through (j) of the definition of
"Permitted Investments" contained in Section 1.01) in the aggregate
amount in excess of $10,000,000,
(ix) modifying or superseding Section 5.02 or otherwise
allowing (whether through an amendment, modification or supplement of
the covenant contained
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in the New Credit Agreement, as of the Issue Date, that corresponds to
Section 5.02 of this Agreement, the definition in the New Credit
Agreement that corresponds to the definition of "Permitted Liens" in
Section 1.01 or some other provision or definition of the New Credit
Agreement that has a corresponding provision or definition herein)
additional Liens,
(x) permitting the Applicable Amounts for any consecutive
twelve month period contained in Section 5.19(a) of this Agreement to
be less than 85% of the Applicable Amounts stated therein as of the
Issue Date or permitting the quarterly EBITDA minus Capital Expenditure
covenant established for each fiscal quarter after March 2007 pursuant
to Section 5.19(a) of this Agreement to be less than 85% of such amount
after being established by the Required Lenders,
(xi) permitting the Capital Expenditures to increase in any
one fiscal year more than $50,000,000 above the scheduled amounts
permitted and those amounts established for any fiscal year after 2007
pursuant to the provisions in Section 5.19(b), or
(xii) if the Class B Notes are outstanding, amending or
superseding any financial covenant or any part thereof in this
Agreement (including, without limitation, as of the Issue Date,
Sections 5.01, 5.02, 5.04, 5.06, 5.08, 5.09, 5.11, 5.13, 5.14, 5.19 and
5.21).
(d) Waiver of Default. If the Class B Notes are not outstanding, and
the Bank Lenders' Agent or Required Lenders, as the case may be, waives or
partially waives any event of default or any part thereof contained in the New
Credit Agreement that corresponds, as of the Issue Date, to an Event of Default
under Section 6.01(d) of this Agreement or an Event of Default under Section
6.01(e) that relates to a Default under Sections 4.03 or 4.05 of this Agreement,
the corresponding Event of Default or part thereof shall be automatically deemed
waived by the Required Holders in the same manner and to the same extent waived
under the New Credit Agreement.
(e) Refinancing. If the New Credit Agreement is refinanced, the
covenants contained in this Agreement shall remain in the same form as they
exist on the date of the refinancing. Thereafter, if there is an amendment,
modification or supplement to any covenants in the refinanced New Credit
Agreement, subsections (b), (c) and (d) above shall not apply, and the Trustee,
the Holders of the Notes and the Note Parties agree to negotiate in good faith
on replacement provisions for such subsections.
(f) Termination. If the New Credit Agreement is terminated,
extinguished or otherwise not in force while the Notes are outstanding and this
Agreement is still in effect, references to provisions, sections, articles,
exhibits and schedules of the New Credit Agreement shall be incorporated herein
and the following terms shall be replaced mutatis mutandis:
(i) "Required Lenders" shall be replaced with the term
"Required Holders"; and
(ii) "Bank Lenders' Agent" shall be replaced with the term
"Trustee".
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The parties agree that if the New Credit Agreement is terminated, extinguished
or otherwise not in force, the affected provisions of this Agreement shall be
interpreted in such a manner as to minimize any change in the application of
such provisions from the application of such provisions when the New Credit
Agreement was in effect.
9.08 WP Xxxxx Transaction.
Notwithstanding anything to the contrary contained herein, in a Note
Document or a Security Document, each Note Party, each Holder and the Trustee
hereby stipulate and agree that in the event the Company provides the Trustee
with an Officer's Certificate stating that the terms and conditions of any
transaction constituting the WP Xxxxx Transaction comply with the provisions of
Section 5.01(i) hereof, then any special purpose entity formed by a Note Party
after the Issue Date solely for the purpose of consummating such WP Xxxxx
Transaction shall not be subject to the representations, warranties and
covenants in this Agreement and the other Note Documents and Security Documents.
ARTICLE X
NOTE GUARANTEES
10.01 Guarantee.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, subject to this Article X, each of the Guarantors
hereby, jointly and severally, fully and unconditionally guarantees to each
Holder of a Note authenticated and delivered by the Trustee and to the Trustee
and its successors and assigns, irrespective of the validity and enforceability
of this Agreement, the Notes or the obligations of the Company hereunder or
thereunder, that: (a) the principal of and interest on, and premium and fees on,
if any, the Notes will be promptly paid in full when due, whether at maturity,
by acceleration, redemption or otherwise, and interest on the overdue principal
of and interest on the Notes, if any, if lawful, and all other obligations of
the Company to the Holders or the Trustee hereunder or under the Notes, the
Security Documents or other Note Documents will be promptly paid in full or
performed, all in accordance with the terms hereof and thereof; and (b) in case
of any extension of time of payment or renewal of any Notes or any of such other
obligations, that same will be promptly paid in full when due or performed in
accordance with the terms of the extension or renewal, whether at stated
maturity, by acceleration or otherwise (all such obligations guaranteed hereby
being the "Guaranteed Obligations"). Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the Guarantors
shall be jointly and severally obligated to pay the same immediately. Each
Guarantor agrees that this is a guarantee of payment and not a guarantee of
collection.
This guarantee is irrevocable, absolute, present and unconditional.
Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly
in accordance with the terms of this Agreement, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Trustee or the Holders with respect thereto.
The liability of each Guarantor under its Guarantee herein shall be absolute and
unconditional irrespective of:
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(i) the validity, assignment, enforceability, avoidance,
novation or subordination of, in whole or in part, any of the
Guaranteed Obligations, this Agreement or the other Note Documents with
respect to the Company or any agreement or instrument relating thereto;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations, or any
other amendment or waiver of or any consent to departure from this
Agreement, including any increase in the Guaranteed Obligations
resulting from the extension of additional credit to the Company or
otherwise;
(iii) the failure to give notice to such Guarantor of the
occurrence of a Default or Event of Default under the provisions of
this Agreement or the other Note Documents;
(iv) any taking, exchange, release or nonperfection of any
collateral, or any taking, release or amendment or waiver of or consent
to departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(v) any manner of application of Collateral, or proceeds
thereof, or payments and credits hereunder, to all or any of the
Guaranteed Obligations, or any manner of sale or other disposition of
any collateral or any other assets of the Company;
(vi) any failure, omission, delay by or inability on the part
of the Trustee or the Holders to assert or exercise any right, power or
remedy conferred on the Trustee or the Holders in this Agreement or the
other Note Documents;
(vii) any change in the corporate structure, or termination,
dissolution, consolidation or merger of the Company or any guarantor
(including any other Guarantor) with or into any other entity, the
voluntary or involuntary liquidation, dissolution, sale or other
disposition of all or substantially all the assets of the Company or
any guarantor (including any other Guarantor), the marshaling of the
assets and liabilities of the Company or any guarantor (including any
other Guarantor), the receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition
with creditors, or readjustment of, or other similar proceedings
affecting the Company or any guarantor (including any other Subsidiary
Guarantor), or any of the assets of any of them, or except as set forth
herein, any change in the ownership of such Guarantor;
(viii) the assignment of any right, title or interest of the
Trustee or any Holder in this Agreement or the other Note Documents to
any other Person;
(ix) any extension or renewal of any of the Guaranteed
Obligations;
(x) any exchange, surrender, substitution, modification of any
collateral security for the Guaranteed Obligations of any Guarantor or
the release of any security held by any Holder or the Trustee for the
Guaranteed Obligations of any Guarantor, or the failure of the Trustee
or any other Person to take any steps to perfect
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and maintain its security interest in, or to preserve its rights to,
any security or collateral for the Guaranteed Obligations;
(xi) the election by, or on behalf of, any one or more of
Holders and the Trustee, in any proceeding instituted under Chapter 11
of the Bankruptcy Law;
(xii) any borrowing or grant of a security interest by the
Company, as debtor-in-possession, under Section 364 of the Bankruptcy
Law;
(xiii) the disallowance, under Section 502 of the Bankruptcy
Law, of all or any portion of the claims of any of Holders or the
Trustee for repayment of all or any part of the Guaranteed Obligations
or any expenses described in this Section;
(xiv) any refusal of payment by the Trustee or any Holder, in
whole or in part, from any obligor or guarantor in connection with any
of the Guaranteed Obligations, whether or not with notice to, or
further assent by, or any reservation of rights against, Company or any
Guarantor;
(xv) any defense, setoff, cross claim or counterclaim which
may at any time be available to or asserted by or against any Guarantor
or Company; or
(xvi) any other event or circumstance (including any statute
of limitations), whether foreseen or unforeseen and whether similar or
dissimilar to any of the foregoing, that might otherwise constitute a
defense available to, or a discharge of, the Company or a guarantor
(including any other Guarantor), other than payment in full of the
Guaranteed Obligations; it being the intent of such Guarantor that its
obligations hereunder shall not be discharged except by payment of all
amounts owing pursuant to this Agreement or the Notes and except as
otherwise provided in Section 10.07 or Article VIII.
Each Guarantor hereby waives: (i) promptness, diligence, presentment, demand of
payment, (ii) filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any Guarantor, any other Subsidiary of the Company or
any other obligor under the Notes, (iii) any right to require a proceeding first
against the Company, any Guarantor, any other Subsidiary of the Company or any
other obligor under the Notes, (iv) protest, notice and all demands whatsoever,
(v) any requirement that the Trustee, any Holder or any other Person protect,
secure and perfect or insure any Lien or any property subject thereto or exhaust
any right to take any action against the Company or any other Person or any
Collateral, or obtain any relief pursuant to this Agreement or pursue any other
available remedy, (vi) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES, (vii)
any defense arising by reason of any claim or defense based upon an election of
remedies by the Trustee or any Holder which in any manner impairs, reduces,
releases or otherwise affects its subrogation, contribution or reimbursement
rights or other rights to proceed against the Company or any other Person or any
Collateral; (viii) any duty on the part of the Trustee or any Holder to disclose
to such Guarantor any matter, fact or thing relating to the business, operation
or condition of the Company and its assets now or hereafter known by the Trustee
or such Holder; (ix) all notices of the existence,
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creation or incurring of new or additional indebtedness, arising either from
additional financial accommodations extended to the Company or otherwise; and
(x) any defense based upon any requirement of law which provides that the
obligation of a surety must be neither large in amount nor in other respects
more burdensome than that of the principal.
Each Guarantor covenants that this Note Guarantee shall not be
discharged except by complete performance of the obligations contained in the
Notes and this Agreement.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors, any other Subsidiary of the Company, any
other obligor under the Notes, or any Custodian, trustee, liquidator or other
similar official acting in relation to either the Company or the Guarantors, any
amount paid by either to the Trustee or such Holder, this Note Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article VI
hereof for the purposes of this Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article VI hereof, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the Guarantors for the purpose of this Note Guarantee. Each Guarantor
that makes payments under its Note Guarantee is entitled to a contribution from
each other Guarantor in a pro rata amount based on the net assets of each
Guarantor.
Each Guarantor agrees that the obligations under this Agreement and the
Note Documents may be extended or renewed, in whole or in part, without notice
or further assent from such Guarantor and that such Guarantor will remain bound
under this Article X notwithstanding the extension or renewal of any such
obligation.
10.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Note Guarantee of
such Guarantor not constitute a fraudulent transfer or conveyance for purposes
of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to any
Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders
and the Guarantors hereby irrevocably agree that the obligations of each
Guarantor under its Note Guarantee will be limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor (including, without limitation, any guarantees under the New Credit
Agreement) and after giving effect to any collections from or payments made by
or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Note Guarantee or pursuant to its contribution obligations
under this Agreement, result in the obligations of such Guarantor under its Note
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal or state law.
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10.03 Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 10.01, each
Guarantor hereby agrees that a notation of such Note Guarantee substantially in
the form included in Exhibit C shall be endorsed by an Officer of such Guarantor
on each Note authenticated and delivered by the Trustee and that this Agreement
shall be executed on behalf of such Guarantor by an Officer.
Each Guarantor hereby agrees that its Note Guarantee set forth in
Section 10.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Agreement or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Note Guarantee is endorsed, the Note Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Note Guarantee set forth
in this Agreement on behalf of the Guarantors.
10.04 Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Section 5.03, no Guarantor may
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, whether or not affiliated with such Guarantor.
In case of any such permitted consolidation, merger, sale or conveyance
and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee in form substantially similar to Exhibit D
hereof, of the Note Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Agreement to be
performed by the Guarantor, such successor Person shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor Person thereupon may cause to be signed
any or all of the Note Guarantees to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Note Guarantees so issued shall in all
respects have the same legal rank and benefit under this Agreement as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of
this Agreement as though all of such Note Guarantees had been issued at the date
of the execution hereof.
10.05 Rights under the Note Guarantees.
No payment by any Guarantor pursuant to the provisions hereof shall
entitle such Guarantor to any payment out of any Collateral or give rise to any
claim of the Guarantors against the Trustee or any Holder.
Each Guarantor waives notice of the issuance, sale and purchase of the
Notes and notice from the Trustee or the Holders from time to time of any of the
Notes of their acceptance and reliance on its Note Guarantee.
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No set-off, counterclaim, reduction or diminution of any obligation or
any defense of any kind or nature (other than performance by the Guarantors of
their obligations hereunder) that any Guarantor may have or assert against the
Trustee or any Holder shall be available hereunder to such Guarantor.
10.06 Primary Obligations.
The Obligations of each Guarantor hereunder shall constitute a guaranty
of payment and not of collection. Each Guarantor agrees that it is directly
liable to each Holder hereunder, that the obligations of each Guarantor
hereunder are independent of the Obligations of the Company or any other
Guarantor, and that a separate action may be brought against each Guarantor,
whether such action is brought against the Company or any other Guarantor or
whether the Company or any other Guarantor is joined in such action. Each
Guarantor agrees that its liability hereunder shall be immediate and shall not
be contingent upon the exercise or enforcement by the Trustee or the Holders of
whatever remedies they may have against the Company or any other Guarantor or
the enforcement of any lien or realization upon any security the Trustee may at
any time possess. Each Guarantor agrees that any release that may be given by
the Trustee or the Holders to the Company or any other Guarantor shall not
release such Guarantor.
10.07 Waiver of Subrogation and Contribution.
Until this Agreement has been discharged, each Guarantor hereby
irrevocably waives any claim or other right which it may now or hereafter
acquire against the Company or any guarantor (including any other Guarantor)
that arise from the existence, payment, performance or enforcement of such
Guarantor's obligations under its Note Guarantee herein, including any right of
subrogation, reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy of the Trustee or any Holder against
the Company or any guarantor or any Collateral which the Trustee or any Holder
now has or hereafter acquires, whether or not such claim, remedy or right arises
in equity, or under contract, statute or common law, including the right to take
or receive from the Company, directly or indirectly, in cash or other property
or by setoff or in any other manner, payment or security on account of such
claim or other rights. If any amount shall be paid to such Guarantor in
violation of the preceding sentence and the Guaranteed Obligations shall not
have been paid in full, such amount shall be deemed to have been paid to such
Guarantor for the benefit of, and held in trust for the benefit of, the Trustee
and the Holders, and shall forthwith be paid to the Trustee for the benefit of
the Holders to be credited and applied to the Guaranteed Obligations, whether
matured or unmatured, in accordance with the terms of this Agreement. Each
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by this Agreement and that the waivers
set forth in this Section 10.07 are knowingly made in contemplation of such
benefits.
10.08 Cumulative Remedies.
The remedies herein provided are cumulative and not exclusive of any
remedies provided by law. The Trustee and the Holders shall have all the rights
and remedies granted in this Agreement and the other Note Documents and
available at law or in equity, and these same
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rights and remedies may be pursued separately, successively or concurrently
against the Company or any Guarantor, or any Collateral.
10.09 Successors and Assigns. This Article X shall be binding upon each
Guarantor and its successors and assigns and shall inure to the benefit of the
successors and assigns of the Trustee and the Holders and, in the event of any
transfer or assignment of rights by any Holder or the Trustee, the rights and
privileges conferred upon that party in this Agreement and in the other Note
Documents shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions of this Agreement.
10.10 Guarantee by Future Subsidiaries.
Pursuant to Section 5.13 of this Agreement, any new Subsidiary formed
or acquired after the Issue Date shall become a Guarantor under this Agreement
and shall deliver all such Note Documents required pursuant to Section 5.13.
ARTICLE XI
COLLATERAL
11.01 Delivery of Security Documents.
(a) Not later than the Issue Date (except as otherwise set forth
below), the Company and the Guarantors party thereto shall have executed and
delivered to the Trustee for the benefit of the Holders:
(i) One or more Uniform Commercial Code filing authorization
letters, duly executed by each Note Party or its representative,
together with appropriate financing statements on Form UCC-1 duly filed
in such office or offices as may be necessary to perfect the Trustee's
Liens in and to the Collateral of such Note Party, and the Trustee
shall have received confirmation of the filing of all such financing
statements;
(ii) Each of the following documents, duly executed, and each
such document shall be in full force and effect:
(1) The Collateral Access Agreements with respect to
the locations set forth on Schedule 3.1(d) of the New Credit Agreement,
(2) the Control Agreement,
(3) the Copyright Security Agreement,
(4) the Environmental Indemnity Agreements,
(5) the Guarantor Security Agreement, which shall,
among other things, grant the Trustee a Lien on the Reservation
Management System,
(6) the Guaranty Agreement,
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(7) the Note Guarantees,
(8) the Patent and Trademark Security Agreement,
(9) the Quebec Security Documents, and
(10) the Stock Pledge Agreement;
(11) the Agency Letter;
(12) the Mortgages and related fixture filings; and
(13) the Mortgage Policies
(14) the security documents entered into by the
Canadian subsidiaries.
The items set forth in this Section 11.01(a), and any other
security agreement, instrument, filing, certificate or similar document
entered into, now or in the future, by any Note Party in connection
with this Agreement and accepted by the Trustee, are collectively
referred to as the "Security Documents".
(b) Within 30 days of the Issue Date, the Note Parties shall deliver to
the Trustee certified copies of the policies of insurance, together with the
endorsements thereto, as are required by Section 4.08, the form and substance of
which shall be reasonably satisfactory to the Trustee and its counsel.
(c) Within 150 days after the Issue Date, the Company shall, or shall
cause the other Note Parties to:
(i) (1) register, or cause to be registered, with the State of
Arizona each Vehicle (excluding any trailer) owned by any Borrower or
any Guarantor (other than U-Haul Co. of Alaska or U-Haul of Hawaii,
Inc.) and (2) obtain a new Certificate of Title for each such Vehicle
registered pursuant to clause (1) naming (A) (x) U-Haul (Canada) as the
registered owner of such Vehicles operated primarily in Canada, or (y)
U-Haul Co. of Arizona, an Arizona corporation, as the registered owner
of all other such Vehicles, (B) on new Certificates of Title obtained
prior to May 21, 2003, "FOOTHILL CAPITAL CORP.", as the first priority
lienholder thereon and "XXXXX FARGO BANK, N.A., TRUSTEE", as second
priority lienholder only to the Bank Lenders' Agent and (C) on new
Certificates of Title obtained on or after May 21, 2003, "XXXXX FARGO
FOOTHILL, INC., AS AGENT" or, if space does or did not permit,
"WELLSFARGO FOOTHILL AGENT", as the first priority lienholder thereon
and "XXXXX FARGO BANK, TRUSTEE," as the second priority lienholder only
to the Bank Lenders' Agent;
(ii) (1) register, or cause to be registered, with the State
of Alaska each Vehicle (excluding any trailer) owned by U-Haul Co. of
Alaska, and (2) obtain a new Certificate of Title for each such Vehicle
registered pursuant to clause (1) naming (A) U-Haul Co. of Alaska, an
Alaskan corporation, as the registered owner and (B) "XXXXX FARGO
FOOTHILL, INC., AS AGENT" or, if space does or did not permit,
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"WELLSFARGO FOOTHILL AGENT", as the first priority lienholder thereon
and "XXXXX FARGO BANK, TRUSTEE," as the second priority lienholder only
to the Bank Lenders' Agent;
(iii) (1) register, or cause to be registered, with the State
of Hawaii each Vehicle (excluding any trailer) owned by U-Haul of
Hawaii, Inc. and (2) obtain a new Certificate of Title for each such
Vehicle registered pursuant to clause (1) naming (A) U-Haul of Hawaii,
Inc., a Hawaiian corporation, as the registered owner and (B) "XXXXX
FARGO FOOTHILL, INC., AS AGENT" or, if space does or did not permit,
"WELLSFARGO FOOTHILL AGENT", as the first priority lienholder thereon
and "XXXXX FARGO BANK, TRUSTEE," as the second priority lienholder only
to the Bank Lenders' Agent; and
(iv) (1) deliver such original Certificates of Title after
registration thereof to Xxxxxxx Xxxxxx or Xxxx Xxxxxx at the Company's
location at 0000 Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000, (2) deliver to
the Trustee evidence of approval from the State of Arizona for
Borrowers to process and register the Certificates of Title, in form
and substance reasonably satisfactory to the Trustee, and (3) deliver
to the Trustee a fidelity insurance policy naming the Trustee as loss
payee or bond endorsed to the Trustee, in each case in form and
substance reasonably satisfactory to Trustee;
The address of the Trustee on the Certificates of Title shall be the
Company's chief executive office located at 0000 Xxxxx Xxxxxxx, Xxxxxxx,
Xxxxxxx.
If at least ninety percent (90%) of the Certificates of Title are not
registered in accordance with this Section 11.01(c) within 150 days after the
Issue Date, then the Company shall notify in writing the Trustee of such and the
applicable interest rate on the Notes shall automatically increase by
twenty-five (25) basis points retroactive to, and commencing on, the Issue Date,
and shall increase an additional twenty-five (25) basis points each succeeding
ninety-first day thereafter up to a maximum increase of one hundred (100) basis
points (i.e., an applicable interest rate on the Notes of ten percent (10%) per
annum) until such time as at least ninety percent (90%) of the Certificates of
Title are registered in accordance herewith. The increase in interest set forth
in this paragraph shall (1) occur automatically, (2) not require the Trustee to
declare a Default, give notice to any Note Party, or take any other action, (3)
not be considered an enforcement action or remedy, and (4) be in addition to,
and not in substitution of, any other Additional Interest, default interest or
higher interest rate due for overdue payments that may from time to time be due
and payable under this Agreement or under the Notes for any reason. Interest
accrued retroactively in accordance herewith shall be due and payable by the
Company on the 5th Business Day after the 150th day after the Issue Date without
notice or demand therefor.
(d) Within 60 days of the Issue Date, Borrowers shall have received and
delivered to the Trustee zoning letters, in form and substance delivered to Bank
Lenders' Agent, duly executed by the appropriate Governmental Authorities, for
the Real Property Collateral located at the locations on Schedule 3.2(d) of the
New Credit Agreement;
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(e) Within 60 days of the Issue Date, the Trustee shall have received
subordination, non-disturbance and attornment agreements duly executed by the
applicable Note Party and tenant in favor of the Trustee with respect to the
properties set forth on Schedule 3.2(e) of the New Credit Agreement, the form
and substance of which are reasonably satisfactory to the Trustee;
(f) Promptly after delivering the Credit Card Agreements and the Cash
Management Agreements to the Bank Lenders' Agent, Borrowers shall deliver copies
of such agreements to the Trustee;
(g) Borrower shall deliver a copy of Schedule 3.1(w) of the New Credit
Agreement setting forth the book values of all box-trucks, cargo vans and pickup
trucks owned by the Note Parties as of the Issue Date, that are or will be
subject to the Trustee's Lien, and promptly after any revision, supplement or
amendment thereof, Borrowers shall deliver a copy of such schedule as revised,
supplemented or amended to the Trustee; and
(h) The Bank Lenders' Agent shall have received Uniform Commercial
Code, tax and judgment lien searches confirming the absence of, and mortgage
releases, termination statements and other release documents from JPMorgan and
any other Person necessary to release, any Liens on the Collateral, other than
the Permitted Liens, in accordance with the terms of the New Credit Agreement.
11.02 Recording and Opinions.
(a) Not later than the Issue Date, the Company and the Guarantors, at
their sole expense, will cause the Security Documents to be recorded, registered
and filed in such manner and in such places as may be necessary or as may be
reasonably requested by the Trustee to create or perfect the Liens in the
Collateral intended to be created by the Security Documents. Thereafter, until
the release of the Collateral as provided in Section 11.04 or in the Security
Documents, the Company and the Guarantors, at their sole expense, will cause the
Security Documents to be re-recorded, re-registered or refiled in such manner
and in such places as may be necessary or as may be reasonably requested by the
Trustee in order to fully preserve and protect the Liens in the Collateral
created by the Security Documents.
(b) The Company shall furnish to the Trustee within three months after
the execution and delivery of this Agreement, an opinion or opinions of counsel
required under Section 314(b)(1) of the TIA, and within five Business Days after
each anniversary of the Issue Date, an opinion of counsel required under Section
314(b)(2) of the TIA.
11.03 Possession and Use of Collateral.
So long as no Event of Default has occurred and is continuing, the Note
Parties will have the right to remain in possession of and exercise complete
control over the Collateral, except for such of the Collateral as is required to
be in the possession of the Bank Lenders' Agent, the Trustee or the Bank
Lenders' Collateral Agent in order to perfect the Liens in such Collateral
granted by the Security Documents. Notwithstanding anything herein or in any
other Note Document to the contrary, in the event a Note Party is required
hereunder or under the other Note Documents to deliver possession or control of
any Collateral to the Trustee in order to perfect the
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Trustee's Lien thereon, such requirement may be satisfied by delivering such
possession or control, as of the Issue Date, to the Bank Lenders' Agent, and
after the Issue Date, to such collateral agent or bailee as the Trustee may from
time to time designate in writing; provided, however, that so long as Bank
Lenders' Collateral Agent serves as Trustee's bailee for perfection pursuant to
the Intercreditor Agreement, such bailee shall be the Bank Lenders' Collateral
Agent. The Note Parties and the Trustee agree to take such other reasonable
efforts as may be necessary or appropriate to perfect the Trustee's Liens with
respect to Collateral upon which Liens are perfected by means other than notice.
11.04 Release and Disposition of Collateral.
The Collateral shall be released from the Lien of the Security
Documents as expressly provided therein and the Trustee shall release any Lien
on any Collateral:
(a) upon satisfaction and discharge of this Agreement as provided in
Article XII hereof;
(b) upon Legal Defeasance or Covenant Defeasance as provided in Article
VIII hereof; provided, however, that any and all funds deposited for the benefit
of the Trustee on behalf of the Holders in connection with any Legal or Covenant
Defeasance shall remain subject to a Lien in favor of the Trustee, for the
benefit of the Holders,
(c) constituting property being sold or disposed of if a release is
required or desirable in connection therewith and if the Company certifies to
the Trustee that the sale or disposition is permitted under Section 5.04 of this
Agreement or the other Note Documents (and the Trustee may rely conclusively on
any such certificate, without further inquiry),
(d) constituting property in which no Note Party owned any interest at
the time the Trustee's Lien was granted or at any time thereafter, or
(e) constituting property leased to a Note Party under a lease that has
expired or is terminated in a transaction permitted under this Agreement.
Except as provided above or in the Intercreditor Agreement, the Trustee
will not execute and deliver a release of any Lien on any Collateral without the
prior written authorization of (i) if the release is of all or any substantial
portion of the Collateral (which shall be deemed to include sales or other
dispositions of Collateral with a Fair Market Valuation in excess of $35,000,000
over the Fair Market Valuation of the Collateral that may be sold or otherwise
disposed of under Section 5.04 hereof), all of the Holders of the Notes, or (ii)
otherwise, the Required Holders. Upon request by the Trustee or the Company at
any time, the Holders of the Notes will confirm in writing Trustee's authority
to release any such Liens on particular types or items of Collateral pursuant to
this Section 11.04; provided, however, that (1) the Trustee shall not be
required to execute any document necessary to evidence such release on terms
that, in Trustee's opinion, would expose the Trustee to liability or create any
obligation or entail any consequence other than the release of such Lien without
recourse, representation, or warranty, and (2) such release shall not in any
manner discharge, affect, or impair the Obligations or any Liens (other than
those expressly being released) upon (or obligations of Note Parties in respect
of) all interests retained by Note Parties, including, the proceeds of any sale,
all of which shall continue to constitute part of the Collateral.
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The Holders hereby irrevocably appoint and authorize the Collateral
Trustee to act as collateral agent hereunder and under the Security Documents
with such powers as are delegated to the Trustee (with respect to the
Collateral) and/or the Collateral Trustee by the express terms of this Agreement
and the Security Documents, together with such other powers as are incidental
thereto.
The Note Parties shall take all necessary action with respect to the
recording or filing of the Security Documents, all necessary Uniform Commercial
Code financing, amendment and/or continuation statements, and any other
instruments of further assurance, and for taking all other actions necessary to
create and maintain the validity, perfection and priority of Trustee's Liens
(second in priority only to the first priority security interests granted to the
Bank Lenders' Agent pursuant to the New Credit Agreement and the other Loan
Documents (as defined in the New Credit Agreement)). If the Collateral Trustee
shall become aware of any such failure to maintain the validity, perfection and
priority of the Trustee's Liens, the Collateral Trustee shall be responsible for
any required recording or filing of the Security Documents, all necessary
Uniform Commercial Code financing, amendment and/or continuation statements, and
any other instruments of further assurance, and for taking all other actions
described in this Agreement as being advisable to remedy any such failure to
maintain the validity, perfection and priority of the Trustee's Liens (second in
priority only to the first priority security interests granted to the Bank
Lenders' Agent pursuant to the New Credit Agreement and the other Loan Documents
(as defined in the New Credit Agreement)). The Trustee and Collateral Trustee
shall not be responsible for seeing that any of the Collateral is adequately
insured, or for the sufficiency of the security for the Notes; provided,
however, that if a Responsible Officer of the Trustee has actual knowledge that
the Collateral is not adequately insured, it shall notify the appropriate Note
Party of such inadequacy and its obligation to adequately insure such Collateral
in accordance with this Agreement and the Security Documents.
The Collateral Trustee (which term as used in this Agreement shall
include reference to its affiliates and its own and its affiliates' officers,
directors, employees and agents acting in capacities on behalf of the Collateral
Trustee): (i) shall have no duties or responsibilities except those expressly
set forth or directed in connection with this Agreement and the Security
Documents, (ii) shall not be responsible to any Holder for any recitals,
statements, representations or warranties contained in this Agreement or the
other Note Documents or in any certificate or other document received by it
under this Agreement or other Note Documents, or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
other Note Documents or any other Person to perform any of its obligations
hereunder or under the Note Documents and (iii) shall not be responsible to any
Holder for any action taken or omitted to be taken by it hereunder or under any
Note Document, except for its own negligence or willful misconduct. The
Collateral Trustee's sole duty with respect to the custody, safekeeping and
physical preservation of the Collateral in its possession shall be to deal with
it in the same manner as the Collateral Trustee deals with similar property for
its own account. The Collateral Trustee may employ agents and attorneys-in-fact
selected by it in good faith. The Collateral Trustee shall be entitled to rely
upon any certification, notice or other communication (including any thereof, by
telephone, telex, telegram or cable) believed by it in good faith to be genuine
and correct and to have been signed or sent by or on behalf of the proper Person
or Persons, and upon advice and statements of legal counsel, independent
accountants and other experts selected by the Collateral Trustee.
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Each Holder of the Notes by its acceptance thereof (and each subsequent
holder of any of the Notes by its acceptance thereof), agrees that it has not
relied upon the Trustee or Collateral Trustee in making its own credit analysis
and evaluation of the Note Parties and filings relating thereto and its own
decision to acquire the interest in one or more of the Notes and that it will,
independently and without reliance upon the Trustee or Collateral Trustee and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own analysis and decisions with respect to any
purchase or sale of the Notes. Except as expressly required of each of Trustee
and Collateral Trustee hereunder or under the other Note Documents, neither the
Trustee nor the Collateral Trustee shall be required to keep itself informed as
to the performance or observance by the Note Parties of this Agreement or any
other Note Document or to inspect the properties or books of any Person. Except
for notices, reports and other documents required to be provided upon request of
a Holder hereunder, the Trustee and Collateral Trustee shall not have any duty
or responsibility to provide the Holders with any credit or other information
concerning the affairs, financing condition or business of the Note Parties (or
any of their respective subsidiaries or other affiliates) which may come into
the possession of the Trustee or Collateral Trustee.
The Company and each other Note Party will pay upon demand to the
Collateral Trustee the amount of any and all reasonable out-of-pocket expenses,
including the reasonable fees and expenses of its counsel (and any local
counsel) and of any experts and agents, which the Collateral Trustee may incur
in connection with (i) the administration of the Security Documents, (ii) the
custody or preservation of, or the sale, collection from, or other realization
upon, any of the Collateral, (iii) the exercise or enforcement (whether through
negotiations, legal proceedings or otherwise) of any of the rights of the
Collateral Trustee under this Agreement or the Security Documents (iv) the
failure by any Note Party or any Person (other than the Trustee or Collateral
Trustee) to perform or observe any of the provisions of this Agreement or the
Security Documents.
Notwithstanding any provision in the Note Documents to the contrary,
the Holders of the Notes hereby irrevocably authorize the Trustee, and the
Trustee hereby agrees that it shall, upon the written request of Company,
execute, have acknowledged as appropriate, and deliver to Company such release
documents as are reasonably necessary or appropriate under the circumstances to
effect the release of any Collateral to the extent the sale of such Collateral
is permitted under this Agreement. The Trustee shall deliver any such release
documents to Company (or, if applicable, any closing attorney) to hold in escrow
pending the closing of the related transaction. In the event the closing of such
transaction does not occur, Company shall promptly return to the Trustee the
release documents executed and delivered by the Trustee.
To the extent applicable, the Company shall cause TIA Section 314(d) to
be complied with in connection with any release of Collateral from the Liens of
the Security Documents. Any certificate or opinion required by TIA Section
314(d) may be made by means of an Officer's Certificate, except in cases in
which TIA Section 314(d) requires that such certificate or opinion be made by an
independent Person.
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11.05 Intercreditor Agreement.
Not later than the Issue Date, the Trustee and the Bank Lenders'
Collateral Agent, shall have entered into the Intercreditor Agreement. Each
Holder agrees to be bound by the terms of the Intercreditor Agreement. The Note
Parties are not a party to, nor beneficiary of, such Intercreditor Agreement,
and nothing in this paragraph nor the Intercreditor Agreement shall impair,
limit or otherwise affect the grant of security interest herein or any of the
Note Parties duties or obligations under the Note Documents.
11.06 Grant of Security Interest.
Each Note Party hereby grants to the Trustee, for the benefit of the
Holders, a continuing security interest (second only to the first priority
security interests granted to Bank Lenders' Agent pursuant to the New Credit
Agreement and the other Loan Documents (as defined in the New Credit Agreement))
in all of its right, title, and interest in all of its currently existing and
hereafter acquired or arising assets (other than Excluded Assets), including
without limitation, its right, title and interest in and to Personal Property
Collateral, in order to secure prompt repayment of any and all of the
Obligations hereunder in accordance with the terms and conditions of the Note
Documents and in order to secure prompt performance by the Note Parties of each
of their covenants and duties under the Note Documents. The Trustee's Liens in
and to such assets, including, without limitation, the Personal Property
Collateral, shall attach to all such assets without further act on the part of
the Trustee or the Note Parties. Anything contained in this Agreement or any of
the Note Document to the contrary notwithstanding, except for Permitted
Dispositions, the Note Parties have no authority, express or implied, to dispose
of any item or portion of such assets.
11.07 Negotiable Collateral and Chattel Paper.
Each Note Party covenants and agrees with Agent that from and after the
Closing Date and until the date of release of the Collateral in accordance with
Section 11.04 hereof:
(a) In the event that any Collateral, including proceeds, is evidenced
by or consists of Negotiable Collateral of any Note Party, and if and to the
extent that perfection of priority of the Trustee's security interest with
respect to such Collateral is dependent on or enhanced by possession, the
applicable Note Party immediately shall endorse and deliver physical possession
of such Negotiable Collateral to the Trustee;
(b) Upon request by the Trustee, each Note Party shall take all steps
reasonably necessary to grant the Trustee control of all electronic Chattel
Paper of such Note Party in accordance with the Code and all "transferable
records as defined in each of the Uniform Electronic Transactions Act and the
Electronic Signatures in Global and National Commerce Act to the extent that
such steps do not conflict with the terms and provisions of the New Credit
Agreement;
(c) In the event any Note Party, with Trustee's consent, retains
possession of any Chattel Paper or instruments otherwise required to be endorsed
and delivered to the Trustee pursuant to Section 11.07(a), all of such Chattel
Paper and instruments shall be marked with the following legend: "This writing
and the obligations evidenced or secured thereby are subject to
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the security interest (second in priority only to the first priority security
interests granted to Xxxxx Fargo Foothill, Inc., as agent, pursuant to that Loan
and Security Agreement dated as of March 1, 2004) of Xxxxx Fargo Bank, N.A., as
the Trustee under the Indenture, dated as of March 1, 2004, for the 9% Second
Lien Senior Secured Notes Due 2009".
11.08 Collection of Accounts, General Intangibles, and Negotiable
Collateral.
At any time after the occurrence and during the continuation of an
Event of Default, the Trustee or the Trustee's designee may (a) notify Account
Debtors of Note Parties that the Note Parties' Accounts, Chattel Paper, or
General Intangibles (other than the Excluded Assets) have been assigned to the
Trustee or that the Trustee has a security interest therein, or (b) collect the
Note Parties' Accounts, Chattel Paper, or General Intangibles (other than the
Excluded Assets) directly and charge the collection costs and expenses to the
Note Parties. Each Note Party agrees that it will hold in trust for the Trustee,
for the benefit of the Holders, any Collections that it receives and immediately
will deliver said Collections to the Trustee in their original form as received
by the applicable Note Party.
11.09 Delivery of Additional Documentation Required.
Each Note Party hereby authorizes the Trustee to file, transmit, or
communicate, as applicable, Uniform Commercial Code financing statements and
amendments describing the Collateral as "all personal property of debtor" or
"all assets of debtor" or words of similar effect in order to perfect the
Trustee's Liens on the Collateral without any Note Party's signature, to the
extent permitted by Applicable Law; provided, however, the Trustee shall clearly
identify Excluded Assets as excepted items. Notwithstanding the foregoing, at
any time upon the request of the Trustee, the Note Parties shall execute and
deliver to the Trustee any and all financing statements, original financing
statements in lieu of continuation statements, fixture filings, security
agreements, pledges, assignments, endorsements of certificates of title,
supplements, and all other documents (the "Additional Documents") upon which
Note Party's signature may be required to perfect and continue perfection of or
better perfect the Trustee Liens in the Collateral (whether now owned or
hereafter arising or acquired), to create and perfect Liens in favor of the
Trustee in any Real Property (whether now owned or hereafter arising or
acquired), and in order to fully consummate all of the transactions contemplated
hereby and under the other Note Documents. To the maximum extent permitted by
Applicable Law, each Note Party authorizes the Trustee to execute any such
Additional Documents in the applicable Note Party's name and authorizes the
Trustee to file such executed Additional Documents in any appropriate filing
office; provided, however, that the failure by the Trustee to so provide such
filings shall not affect the authorizations herein. Each Note Party also hereby
ratifies its authorization for the Trustee to have filed in any jurisdiction any
Uniform Commercial Code financing statements or amendments thereto if filed
prior to the Issue Date. No Note Party shall terminate, amend or file a
correction statement with respect to any Uniform Commercial Code financing
statement filed pursuant to this Section 11.09 without the Trustee's prior
written consent. In addition, on a quarterly basis as the Trustee shall require,
the Note Parties shall (a) cause all patents, copyrights, and trademarks
acquired or generated by the Note Parties that are not already the subject of a
registration with the appropriate filing office (or an application therefor
diligently prosecuted) to be registered with such appropriate filing office in a
manner sufficient to impart constructive notice of the Note Parties' ownership
thereof, and (b) cause to be prepared, executed, and
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delivered to the Trustee supplemental schedules to the applicable Note Documents
to identify such patents, copyrights, and trademarks as being subject to the
security interests created thereunder. The Company shall provide the Trustee
with notice that any Note Party has made a Permitted Investment of the type
described in clause (e), (g) or (k) of the definition of "Permitted Investment"
promptly, but in any event within 5 Business Days, following the consummation
thereof and, upon the request of the Trustee, the relevant Note Party shall
execute and deliver (or cause to be executed and delivered to the Trustee) any
and all Additional Documents requested by the Trustee to perfect the Trustee's
Liens in such Permitted Investment.
11.10 Power of Attorney.
Each Note Party hereby irrevocably makes, constitutes, and appoints the
Trustee (and any of the Trustee's officers, employees, or agents designated by
the Trustee) as such Note Party's true and lawful attorney, with power to (a) if
such Note Party refuses to execute and deliver, or fails timely to execute and
deliver, any of the documents described in Section 11.09, (b) at any time that
an Event of Default has occurred and is continuing, sign such Note Party's name
on any invoice or bill of lading relating to the Collateral, drafts against
Account Debtors of such Note Party, or notices to such Account Debtors, (c) send
requests for verification of such Note Party's Accounts, (d) endorse such Note
Party's name on any Collection item that may come into the Trustee' possession,
(e) at any time that an Event of Default has occurred and is continuing, make,
settle, and adjust all claims under such Note Party's policies of insurance and
make all determinations and decisions with respect to such policies of
insurance, and (f) at any time that an Event of Default has occurred and is
continuing, settle and adjust disputes and claims respecting such Note Party's
Accounts, Chattel Paper, or General Intangibles other than the Excluded Assets
directly with Account Debtors of such Note Party, for amounts and upon terms
that the Trustee determines to be reasonable, and the Trustee may cause to be
executed and delivered any documents and releases that the Trustee determines to
be necessary. The appointment of the Trustee as each Note Party's attorney, and
each and every one of its rights and powers, being coupled with an interest, is
irrevocable until all of the Obligations under the Note Documents have been
fully and finally repaid and performed.
11.11 Control Agreements.
Each Note Party agrees that it will not transfer assets out of any
Securities Accounts other than as permitted under Section 5.18 and, if to
another securities intermediary, unless each of the applicable Note Party, the
Trustee, and the substitute securities intermediary have entered into a Control
Agreement. No arrangement contemplated hereby or by any Control Agreement in
respect of any Securities Accounts or other Investment Property of the Note
Parties shall be modified by the Note Parties without the prior written consent
of the Trustee. Upon the occurrence and during the continuance of a Default or
Event of Default, the Trustee may notify any securities intermediary to
liquidate the applicable Securities Account or any related Investment Property
maintained or held thereby and remit the proceeds thereof to the Trustee.
11.12 Commercial Tort Claims.
Borrowers shall promptly notify the Trustee in writing in the event any
Note Party shall incur or otherwise obtain a Commercial Tort Claim in excess of
$100,000 after the Issue Date
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against any third party and, upon the request of the Trustee, shall promptly
authorize the filing of additional Uniform Commercial financing statements or
amendments to existing Uniform Commercial Code financing statements, and do such
other acts or things deemed necessary or desirable by the Trustee to grant the
Trustee a perfected security interest (second in priority only to the first
priority security interests granted to Bank Lenders' Agent pursuant to the New
Credit Agreement and the other Loan Documents (as defined in the New Credit
Agreement)) in any such Commercial Tort Claim, including, without limitation
executing an assignment of such Commercial Tort Claim.
11.13 Grants, Rights and Remedies.
The Liens and security interests granted by each Note Party to the
Trustee by and pursuant to Section 11.06 hereof may be independently granted by
the Note Documents concurrently or hereafter entered into. This Agreement and
such other Note Documents supplement each other, and the grants, priorities,
rights and remedies of the Trustee hereunder and thereunder are cumulative. Each
Note Party agrees that the rights of the Trustee under this Agreement, any other
Note Document or any other contract or agreement now or hereafter in existence
between the Trustee and any Note Party and the other obligors hereunder or
thereunder, or any of them, shall be cumulative, and that the Trustee may from
time to time exercise such rights and such remedies as such Person or Persons
may have hereunder and thereunder and under the laws of the United States or any
state, as applicable, in the manner and at the time that the Person or Persons
in its or their sole discretion desire, subject to the terms of such agreements.
Each Note Party further expressly agrees that the Trustee shall in no event be
under any obligation to resort to any Personal Property Collateral prior to
exercising any other rights that the Trustee may have against such Note Party or
its property, nor shall the Trustee be obliged to resort to any other collateral
or security for the Obligations of the Note Parties under the Note Documents
prior to any exercise of the Trustee's rights against such Note Party and its
property hereunder. No exercise by the Trustee of one right or remedy shall be
deemed an election, and (except as provided in Section 9.07(d)) no waiver by the
Trustee of any Event of Default shall be deemed a continuing waiver. No delay by
the Trustee shall constitute a waiver, election, or acquiescence by it.
Without limitation of the foregoing, upon the occurrence and during the
continuation of an Event of Default, the Trustee is hereby authorized to:
(a) Settle or adjust disputes and claims directly with the Note
Parties' Account Debtors for amounts and upon terms which the Trustee reasonably
considers advisable, and, in such cases, the Trustee will credit toward the
payment of the Notes only the net amounts received by the Trustee in payment of
such disputed Accounts after deducting all of its expenses incurred or expended
in accordance with the terms of this Agreement in connection therewith;
(b) Cause each Note Party to hold all returned Inventory in trust for
the Holders, segregate all returned Inventory from all other assets of such Note
Party or in such Note Party's possession and conspicuously label said returned
Inventory as the property of the Holders;
(c) Without notice to or demand upon each Note Party, make such
payments and do such acts as the Trustee considers necessary or reasonable to
protect its security interests in the
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Personal Property Collateral. Each Note Party agrees to assemble the Personal
Property Collateral if the Trustee so requires, and to make the Personal
Property Collateral available to the Trustee at a place that the Trustee may
designate that is reasonably convenient to both parties. Each Note Party
authorizes the Trustee to enter the premises where the Personal Property
Collateral is located, to take and maintain possession of the Personal Property
Collateral, or any part of it, and to pay, purchase, contest, or compromise any
Lien that in the Trustee's determination appears to conflict with the Liens of
the Trustee and to pay all expenses incurred in connection therewith. With
respect to any of any Note Party's owned or leased premises, each Note Party
hereby grants the Trustee a license to enter into possession of such premises
and to occupy the same, without charge, in order to exercise any of the
Trustee's or the Holders' rights or remedies provided herein, at law, in equity,
or otherwise;
(d) Without notice to any Note Party (such notice being expressly
waived), and without constituting a retention of any collateral in full or
partial satisfaction of an obligation (within the meaning of the Code), set off
and apply to the Obligations of the Note Parties under the Note Documents any
and all (i) balances and deposits of such Note Party held by the Holders or the
Trustee for the benefit of the Holders, or (ii) Indebtedness at any time owing
to or for the credit or the account of such Note Party held by the Holders or
the Trustee for the benefit of the Holders;
(e) Hold, as cash collateral, any and all balances and deposits of any
Note Party held by the Holders or the Trustee for the benefit of the Holders,
and any amounts received in the Cash Management Accounts (as defined in the New
Credit Agreement), to secure the full and final repayment of all of the
Obligations of the Note Parties under the Note Documents;
(f) Ship, reclaim, recover, store, finish, maintain, repair, prepare
for sale, advertise for sale, and sell (in the manner provided for herein) the
Personal Property Collateral. Each Note Party hereby grants to the Trustee a
license or other right to use, without charge, such Note Party's labels,
patents, copyrights, trade secrets, trade names, trademarks, service marks, and
advertising matter, or any property of a similar nature, as it pertains to the
Personal Property Collateral, in completing production of, advertising for sale,
and selling any Personal Property Collateral and such Note Party's rights under
all licenses and all franchise agreements shall inure to the Holders' benefit;
(g) Sell the Personal Property Collateral at either a public or private
sale, or both, by way of one or more contracts or transactions, for cash or on
terms, in such manner and at such places (including each Note Party's premises)
as the Trustee determines is commercially reasonable and it is not necessary
that the Personal Property Collateral be present at any such sale;
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(h) Give notice of the disposition of the Personal Property Collateral
as follows:
(i) the Trustee shall give each Note Party a notice in writing
of the time and place of public sale, or, if the sale is a private sale
or some other disposition other than a public sale is to be made of the
Personal Property Collateral, the time on or after which the private
sale or other disposition is to be made;
(ii) the notice shall be personally delivered or mailed,
postage prepaid, to each Note Party as provided in Section 13.02, at
least 10 days before the earliest time of disposition set forth in the
notice; no notice needs to be given prior to the disposition of any
portion of the Personal Property Collateral that is perishable or
threatens to decline speedily in value or that is of a type customarily
sold on a recognized market;
The Note Parties hereby acknowledge and agree that the notice described in this
Section 11.13(h), when given, shall constitute a reasonable "authenticated
notification of disposition" within the meaning of Section 9-611 of the Code, as
in effect from time to time in any jurisdiction.
(i) Credit bid and purchase at any public sale;
(j) Seek the appointment of a receiver or keeper to take possession of
all or any portion of the Personal Property Collateral or to operate same and,
to the maximum extent permitted by law, may seek the appointment of such a
receiver without the requirement of prior notice or a hearing;
(k) Have the right, in connection with the issuance of any order for
relief in a bankruptcy proceeding, to petition the bankruptcy court for the
transfer of control or assignment of the licenses to a receiver, trustee,
transferee, or similar official or to any purchaser of the Personal Property
Collateral pursuant to any public or private sale, foreclosure or other exercise
of remedies available to the Trustee, all as permitted by applicable law;
(l) Cause any Note Party to exercise any purchase right with respect to
a Vehicle that such Note Party may have at the termination of any TRAC Lease
Transaction if the Trustee determines, in its Permitted Discretion, that such
Note Party has equity in such Vehicle; and
(m) Have all other rights and remedies available at law or in equity or
pursuant to any other Note Document.
11.14 Survival.
The Liens and security interests granted to the Trustee (for the
benefit of the Holders), the priority of such Liens and security interests, and
the administrative priorities and other rights and remedies granted to the
Trustee pursuant to this Agreement and the other Note Documents (specifically
including but not limited to the existence, perfection and priority of the Liens
and security interest provided herein and therein) shall not be modified,
altered or impaired in any manner by any other financing or extension of credit
or incurrence of debt by any Note Party or by any other act or omission
whatsoever.
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11.15 Authorization of Actions to be Taken by the Trustee Under the
Collateral Documents.
The Trustee may, in its sole discretion and without the consent of the
Holders, take all actions or direct, on behalf of the Holders, the Collateral
Trustee or any Co-Collateral Trustee or separate Collateral Trustee to take all
actions it deems necessary or appropriate to (a) enforce any of the terms of the
Security Documents and (b) collect and receive any and all amounts payable in
respect of the obligations of the company under this Article XI. Subject to the
provisions of this Agreement and the other Security Documents, the Trustee shall
have power to institute and to maintain such suits and proceedings as it may
deem expedient to prevent any impairment of the Collateral by any acts which may
be unlawful or in violation of the Security Documents or this Agreement, and
such suits and proceedings as it may deem expedient to preserve or protect its
interest and the interests of the Holders in the Collateral (including power to
institute and maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid if the enforcement of or
compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders or of the
Collateral Trustee in any such capacity).
11.16 Quebec Security.
For greater certainty, and without limiting the powers of the Trustee
or any other Person acting as trustee or agent for the Holders hereunder or
under any of the Note Documents, each Note Party hereby acknowledges that, for
purposes of holding any Liens, including hypothecs, granted or to be granted by
any Note Party on movable or immovable property pursuant to the laws of the
Province of Quebec to secure obligations of any Note Party under any bond issued
by any Note Party, the Trustee shall be the holder of an irrevocable power of
attorney (fonde de pouvoir within the meaning of Article 2692 of the Civil Code
of Quebec) (the "Fonde de pouvoir") for and on behalf of all present and future
Holders. Each Holder hereby (i) irrevocably constitutes, to the extent
necessary, the Trustee as the Fonde de pouvoir in order to hold Liens, including
hypothecs, granted or to be granted by any Note Party on movable and immovable
property pursuant to the laws of the Province of Quebec to secure obligations of
any Note Party under any bond issued by any Note Party; and (ii) appoints and
agrees that the Trustee, acting as trustee for the Holders, may act as the
bondholder and mandatory with respect to any bond that may be issued and pledged
from time to time for the benefit of the Holders. Without limitation to the
foregoing, to the extent that any Person becomes a Holder by accepting,
purchasing or acquiring a Note, such Person shall be automatically deemed to
have ratified and consented to the power of attorney and appointment constituted
in this Section 11.16.
Notwithstanding the provisions of Section 32 of the An Act respecting
the special powers of legal persons (Quebec), the Trustee may purchase, acquire
and be the holder of any bond issued by any Note Party (i.e. the Fonde de
pouvoir may acquire and hold the first bond issued under any deed of hypothec
granted by any Note Party). Each Note Party hereby acknowledges that any such
bond shall constitute a title of indebtedness, as such term is used in Article
2692 of the Civil Code of Quebec.
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For greater certainty, the trustee herein appointed as Fonde de
pouvoir, bondholder and mandatary shall have the same rights, powers and
immunities as the Trustee as stipulated in Article VII, which shall apply
mutatis mutandis. Without limitation, the provisions of section 7.08 hereunder
shall apply mutatis mutandis to the resignation and appointment of a successor
to the Trustee acting as Fonde de pouvoir, bondholder and mandatary.
11.17 Right to Inspect.
(a) Borrowers acknowledge and agree that, at the expense of Borrowers,
the Trustee (through its officers, employees, or agents) shall have the right
to, and at the request of the Required Holders, shall, from time to time
hereafter, to inspect Borrowers' Books and records (including access to the
Reservation Management System upon the Trustee's request) and to check, test,
and appraise the Collateral in order to verify Borrowers' financial condition or
the amount, quality, value, condition of, or any other matter relating to, the
Collateral; provided, however, that so long as an Event of Default does not
exist, any such inspection shall occur only during normal business hours. The
Trustee may, and at the request of the Required Holders shall, request copies of
and obtain any and all appraisals required by the Bank Lenders' Agent under the
New Credit Agreement.
(b) Borrowers acknowledge and agree that, at the expense of Borrowers,
the Trustee shall have the right to conduct, on a quarterly basis or more
frequently if an Event of Default exists, an independent inspection of 5% of the
Certificates of Title then on hand with any appropriate Governmental Authority
in order to verify the accuracy and completeness of any information contained on
such Certificates of Title and compliance with this Agreement; provided,
however, that if the Trustee determines, in its Permitted Discretion, that there
are significant errors or discrepancies in the Certificates of Title or
non-compliance with this Agreement, the Trustee and the Holders shall, at the
expense of Borrowers, have the right to conduct an independent inspection of all
of Certificates of Title or such lesser amount as may be determined by the
Trustee in its Permitted Discretion. If the Trustee elects to inspect 5% of the
Certificates of Title during any quarter (other than during an Event of Default)
as provided above, prior to such inspection the Trustee shall provide written
notice of such election to the Bank Lenders' Agent, and if the Bank Lenders'
Agent also elects to inspect 5% of the Certificates of Title during the same
inspection period as provided under the New Credit Agreement, then the Trustee
shall only inspect those Certificates of Title as inspected by the Bank Lenders'
Agent. The Note Parties shall deliver to the Trustee (or its designees) any
power of attorney or other document that may be requested by the Trustee or
required by such Governmental Authority in connection therewith. Borrowers
acknowledge that such inspection may be conducted by employees of the Trustee or
any third party retained by the Trustee for such purposes.
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ARTICLE XII
SATISFACTION AND DISCHARGE
12.01 Satisfaction and Discharge.
This Agreement shall be discharged and will cease to be of further
effect (except as to rights of registration of transfer or exchange of Notes
which shall survive until all Notes have been canceled) as to all outstanding
Notes issued hereunder, when either:
(a) all the Notes that have been authenticated and delivered (except
lost, stolen or destroyed Notes which have been replaced or paid and Notes for
whose payment money has been deposited in trust or segregated and held in trust
by the Company and thereafter repaid to the Company or discharged from this
trust) have been delivered to the Trustee for cancellation, or
(b) (i) all Notes not delivered to the Trustee for cancellation
otherwise have become due and payable or have been called for redemption
pursuant to Section 3.07 hereof, and the Company has irrevocably deposited or
caused to be deposited with the Trustee trust funds in trust in an amount of
money sufficient, in the opinion of a nationally recognized firm of independent
public accountants selected and paid for by the Company to pay and discharge the
entire Indebtedness (including all principal and accrued interest, premiums,
fees and Additional Interest) on the Notes not theretofore delivered to the
Trustee for cancellation,
(ii) the Company has paid all sums payable by it under this
Agreement,
(iii) the Company has delivered irrevocable instructions to
the Trustee to apply the deposited money toward the payment of the
Notes at maturity or on the date of redemption, as the case may be,
(iv) the Holders have a valid, perfected, exclusive first
priority security interest in such deposited money,
(v) the Trustee or Paying Agent has not received instructions
from the Company or an Affiliate or subsidiary thereof, not to make
such payment or is not prohibited from paying such payments to the
Holders of the Notes pursuant to this Agreement and the Notes, and
(vi) the Company shall have delivered an Officer's Certificate
and an opinion of counsel to the Trustee stating that all such
obligations of the Company and the Guarantors have been performed or
satisfied and that all of the conditions precedent to satisfaction and
discharge have been satisfied.
12.02 Application of Trust Money.
Subject to the provisions of Section 8.06, all money deposited with the
Trustee pursuant to Section 12.01 shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Agreement, to the payment,
either directly or through any Paying Agent
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(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, fees
or Additional Interest, if any) and interest for whose payment such money has
been deposited with the Trustee; but such money need not be segregated from
other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Section 12.02 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's and any Guarantor's obligations under this Agreement
and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 12.01; provided, however, that if the Company has made any
payment of principal of, premium, fees or interest on any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE XIII
MISCELLANEOUS
13.01 Trust Indenture Act Controls.
If any provision of this Agreement limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties shall control.
13.02 Notices.
Any notice or communication by the Company, any Guarantor or the
Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered or certified, return receipt requested),
telex, telecopier or overnight air courier guaranteeing next day delivery, to
the others' address:
If to the Company and/or any Guarantor:
AMERCO
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxx, Xxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Assistant Treasurer
With a copy to:
U-Haul International, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Attn: General Counsel
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and
Xxxxxx, Xxxxxxx & Xxxxxxx L.L.P.
Two Renaissance Square
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxxxx, Esq.
If to the Trustee:
Xxxxx Fargo Bank, N.A.
Corporate Trust Services
Sixth & Marquette; N9303-120
Minneapolis, MN 55479
Telecopier: (000) 000-0000
Attention: Corporate Trust Administration: AMERCO Notes
The Company, any Guarantor or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
13.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Agreement or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
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13.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Agreement, the Company shall furnish to the Trustee:
(a) an Officer's Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.05 hereof) stating that among other things in the opinion of the
signers, all conditions precedent and covenants, if any, provided for in this
Agreement relating to the proposed action have been satisfied; and
(b) an opinion of counsel in form and substance reasonably satisfactory
to the Trustee (which shall include the statements set forth in Section 13.05
hereof) stating that among other things, in the opinion of such counsel, all
such conditions precedent and covenants have been satisfied.
13.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Agreement (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion has
read such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been satisfied.
13.06 Rules by the Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
13.07 No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, shall have any liability
for any obligations of the Company or any Guarantor under the Notes, the Note
Guarantees, this Agreement or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes and the Note Guarantees. Notwithstanding
the foregoing nothing in
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this provision shall be construed as a waiver or release of any claims under the
federal securities laws.
13.08 Confidentiality.
The Trustee, Collateral Trustee and any Co-Collateral Trustee (and not
jointly or jointly and severally) agree that non-public information regarding
the Note Parties, their operations, assets, and existing and contemplated
business plans (clearly marked and identified as such in writing by the Company
on the face of such information) shall be treated by the Trustee, Collateral
Trustee and any Co-Collateral Trustee in a confidential manner, and shall not be
disclosed by the Trustee, Collateral Trustee and any Co-Collateral Trustee to
Persons who are not parties to this Agreement, except: (a) to attorneys for and
other advisors, accountants, auditors, and consultants to any of the Trustee,
Collateral Trustee and any Co-Collateral Trustee, (b) to Subsidiaries and
Affiliates of any of the Trustee, Collateral Trustee and any Co-Collateral
Trustee, provided that any such Subsidiary or Affiliate shall have agreed to
receive such information hereunder subject to the terms of this Section 13.08,
(c) as may be required by statute, decision, or the Court (as defined in the New
Credit Agreement) or other judicial or administrative order, rule, or
regulation, or to the extent requested by any regulatory authority purporting to
have jurisdiction over any of the Trustee, Collateral Trustee and any
Co-Collateral Trustee (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (d) as may be agreed to in
advance by the Company or as requested or required by any Governmental Authority
pursuant to any subpoena or other legal process, (e) as to any such information
that is or becomes generally available to the public (other than as a result of
prohibited disclosure by the Trustee, Collateral Trustee and any Co-Collateral
Trustee), (f) in connection with any litigation or other adversary proceeding
involving parties hereto which such litigation or adversary proceeding involves
claims related to the rights or duties of such parties under this Agreement, the
Notes or the other Security Documents, and (g) to Holders of Notes as provided
in this Agreement and the Security Documents. The provisions of this Section
13.08 shall survive for 2 years after the payment in full of the Obligations.
13.09 Governing Law.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
THE COMPANY AND EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS INDENTURE, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS.
124
THE COMPANY AND EACH GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
THE COMPANY AND EACH GUARANTOR IRREVOCABLY CONSENTS, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS
OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
THE COMPANY AND GUARANTOR AT THE ADDRESS SET FORTH HEREIN FOR THE COMPANY, SUCH
SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH MAILING. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF ANY HOLDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE COMPANY IN ANY OTHER JURISDICTION.
13.10 No Adverse Interpretation of Other Agreements.
This Agreement may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Agreement.
13.11 Successors.
All agreements of the Company in this Agreement and the Notes shall
bind its successors. All agreements of the Trustee in this Agreement and the
Security Documents shall bind its successors. All agreements of each Guarantor
in this Agreement shall bind its successors, except as otherwise provided in
Sections 10.04 and 10.05.
13.12 Severability.
In case any provision in this Agreement or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
13.13 Counterpart Originals.
The parties may sign any number of copies of this Agreement. Each
signed copy shall be an original, but all of them together represent the same
agreement.
13.14 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Agreement have been inserted for convenience of
reference only, are not to be considered
125
a part of this Agreement and shall in no way modify or restrict any of the terms
or provisions hereof.
13.15 Supremacy of this Agreement.
If any term, condition or provision of this Agreement shall be
inconsistent with any term, condition or provision of any other Note Document,
this Agreement shall control. Notwithstanding the above, if any term, condition
or provision of Article X hereof or the Note Guarantees shall be inconsistent
with any term, condition or provision of the Guarantee Agreement, Article X
hereof or the Note Guarantees shall control.
13.16 Further Assurances.
Each Note Party shall, from time to time, execute and/or deliver such
documents, agreements, financing statements, and reports, and perform such acts
as Trustee at any time may reasonably request to carry out the purposes and
otherwise implement the terms and provisions provided for herein and in the
other Note Documents.
[Signatures on following pages]
126
SIGNATURES
Dated as of March 1, 2004
AMERCO
By: /s/ Xxxx X. Xxxxxxxxxxx
_______________________________
Name: Xxxx X. Xxxxxxxxxxx
Title: Secretary
S-1
GUARANTORS:
AMERCO REAL ESTATE COMPANY, a
Nevada corporation
AMERCO REAL ESTATE SERVICES, INC. a
Nevada corporation
AMERCO REAL ESTATE COMPANY OF
ALABAMA, INC., an Alabama
corporation
AMERCO REAL ESTATE COMPANY OF
TEXAS, INC. a Texas 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
NATIONWIDE COMMERCIAL CO., an
Arizona corporation
PF&F HOLDINGS CORPORATION, a
Delaware corporation
S-2
YONKERS PROPERTY CORPORATION, a New
York corporation
By: /s/ Xxxxxx Xxxxxxxx
________________________________
Xxxxxx Xxxxxxxx, President
S-3
EMOVE, INC., a Nevada corporation
WEB TEAM ASSOCIATES, INC. a Nevada
corporation
By: /s/ Xxxxxx Xxxxxxxx
-------------------------------
Xxxxxx Xxxxxxxx, Secretary
S-4
U-HAUL INSPECTIONS LTD., a British
Columbia corporation
By: /s/ Xxxxxxxx Xxxxxx
________________________________
Xxxxxxxx Xxxxxx, Secretary
S-5
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 ALABAMA, INC., an
Alabama corporation
U-HAUL CO. OF ALASKA, an Alaska
corporation
U-HAUL CO. OF ARIZONA, an Arizona
corporation
U-HAUL CO. OF ARKANSAS, an Arkansas
corporation
U-HAUL CO. OF CALIFORNIA, a
California corporation
U-HAUL CO. OF COLORADO, a Colorado
corporation
U-HAUL CO. OF CONNECTICUT, a
Connecticut corporation
U-HAUL CO. OF DISTRICT OF COLUMBIA,
INC., a District of Columbia
corporation
U-HAUL CO. OF FLORIDA, a Florida
corporation
U-HAUL CO. OF GEORGIA, a Georgia
corporation
U-HAUL OF HAWAII, INC., a Hawaii
corporation
U-HAUL CO. OF IDAHO, INC., an Idaho
corporation
U-HAUL CO. OF IOWA, INC., an Iowa
corporation
U-HAUL CO. OF ILLINOIS, INC., an
Illinois corporation
S-6
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
U-HAUL CO. OF NEW JERSEY, INC. a
New Jersey corporation
U-HAUL CO. OF NEW MEXICO, INC., a
New Mexico corporation
S-7
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
S-8
XXXXX FARGO BANK, N.A.,
as Trustee
By: /s/ Xxxxxxx X. Xxxxx
________________________________
Name: Xxxxxxx X. Xxxxx
Title: Assistant Vice President
S-9
EXHIBIT A
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[FACE OF NOTE]
CUSIP No. [ ]
ISIN No. [ ]
9.0% Second Lien Senior Secured Notes due 2009
No. _____ $___________
AMERCO
promises to pay to______________________________________________________________
or registered assigns,
the principal sum of____________________________________________________________
Dollars on________________, 2009.
The reference date for this Note is March 1, 2004. The Issue Date for this Note
is March 15, 2004.
Interest Payment Dates: March 15, June 15, September 15, and December 15
Record Dates: March 1, June 1, September 1, and December 1
AMERCO
By:________________________________
Name:
Title:
This is one of the Notes referred to
in the within-mentioned Indenture:
Dated: _______________, ____
XXXXX FARGO BANK, N.A., as Trustee
By: ______________________________
Authorized Signatory [BACK OF NOTE]
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[BACK OF NOTE]
9.0% SECOND LIEN SENIOR SECURED NOTES DUE 2009
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
Interest. AMERCO, a Nevada corporation (the "Company"), promises to pay
interest on the principal amount of this Note at 9.0% per annum from March 15,
2004 until paid in full. The Company will pay interest quarterly in arrears on
March 15, June 15, September 15 and December 15 of each year, or if any such day
is not a Business Day, on the next succeeding Business Day (each, an "Interest
Payment Date"). Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
issuance; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be June 15, 2004.
Interest will be computed on the basis of a 360-day year of four 90-day
quarters, or during any partial quarter, on the basis of a 360-day year for the
actual number of days elapsed.
Upon the occurrence and during the continuation of an Event of Default
and in any event from and after the maturity hereof, the principal amount of
this Note and all other Obligations owing under the Note Documents (whether
overdue premium or installments of interest or otherwise) shall bear, and the
Company shall pay from time to time on demand, interest at a rate per annum that
is two percentage points (2.0%) in excess of the per annum rate otherwise
applicable hereunder and the other Note Documents.
In addition to and not in substitution of the foregoing, Additional
Interest shall accrue, and the Company shall pay the same as and when due, in
accordance with the Indenture and the other Note Documents.
METHOD OF PAYMENT. The Company will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the March 1, June 1, September 1 or December 1 next
preceding the Interest Payment Date, even if such Notes are canceled after such
record date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Notes will
be payable as to principal, premium, if any, and interest at the office or
agency of the Company maintained for such purpose within or without the City and
State of New York, or, at the option of the Company, payment of interest may be
made by check mailed to the Holders at their addresses set forth in the register
of Holders, and provided that payment by wire transfer of immediately available
funds will be required with respect to principal of, premium, if any, and
interest on all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Company or the Paying Agent at least
ten Business Days prior to the applicable payment date. Such payment shall be in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts.
AGENT AND REGISTRAR. Initially, Xxxxx Fargo Bank, N.A., the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company may
change the Paying Agent
A-2
or Registrar only with the prior written consent of the Required Holders and
notice in writing to the Trustee. The Company or any of its Subsidiaries may act
in any such capacity.
INDENTURE. The Company issued the Notes under an Indenture dated as of
March 1, 2004 ("Indenture") between the Company, the Guarantors listed on the
signature page therein (the "Guarantors") and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code
Sections 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The
Notes are obligations of the Company limited to $200,000,000 in aggregate
principal amount.
OPTIONAL REDEMPTION.
The Company shall not have the option to redeem the Notes pursuant to
this Section 3.07 prior to March 16, 2005. On or after March 16, 2005, the
Company shall have the option to redeem the Notes, in whole or in part, at the
redemption prices (expressed as percentages of principal amount) set forth
below, plus accrued and unpaid interest thereon to the applicable redemption
date, if redeemed during the 12-month period beginning on March 16 of the years
indicated below;
Year Percentage
---- ----------
2005 105.50%
2006 104.50%
2007 101.00%
2008 and thereafter 100.00%
Any such optional redemption shall be made pursuant to the provisions
of Sections 3.01 through 3.06 of the Indenture.
MANDATORY REDEMPTION.
Neither the Company nor the Guarantors shall be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. On and after the redemption
date interest ceases to accrue on Notes or portions thereof called for
redemption.
MATURITY. To the extent not sooner redeemed, accelerated, or otherwise
due and payable in accordance herewith or the other Note Documents, the
outstanding principal balance hereof, all accrued and unpaid interest thereon,
and all other Obligations owing under the Note Documents, shall be due and
payable on February 27, 2009.
A-3
DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1. The transfer of Notes may be registered
and Notes may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The Company
need not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, the Company need not exchange or register the transfer
of any Notes for a period of 15 days before a selection of Notes to be redeemed
or during the period between a record date and the succeeding Interest Payment
Date.
PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.
AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture, the Note Guarantees or the Notes may be amended or supplemented with
the consent of the Holders of at least a majority in principal amount of the
then outstanding Notes, and any existing default or compliance with any
provision of the Indenture, the Note Guarantees or the Notes may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Notes. Without the consent of any Holder of a Note, the Indenture,
the Note Guarantees or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency; to provide for uncertificated Notes in
addition to or in place of certificated Notes; to release any Guarantor from any
of its obligations under its Note Guarantee or the Indenture (to the extent
permitted by the Indenture); to make any change that does not materially
adversely affect the legal rights hereunder of any Holder of the Notes; or to
comply with requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act.
DEFAULTS AND REMEDIES. Events of Default include: (i) default for 5
days in the payment when due of interest or additional interest, if any, on the
Notes; (ii) default in payment when due of principal of the Notes when the same
becomes due and payable at maturity, upon redemption, upon purchase, upon
acceleration or otherwise; (iii) failure by the relevant Note Party to comply
with any of its agreements or covenants described under Sections 4.08, 4.11(b),
4.12, 4.16, 4.17, 11.07, 11.09 (except to the extent applicable under (xx)
below), 11.12, 11.17 or Article V of the Indenture; (iv) failure by the relevant
Note Party to comply with any of its agreements or covenants in Sections 4.04,
4.06, 4.07, 4.09, 4.10, 4.11(a), 4.13, 4.15, 4.19 and 11.10 of the Indenture and
such failure continues for a period of 20 Business Days; (v) failure by a Note
Party to comply with any covenants or agreements contained in the Indenture or
in any of the other Note Documents (giving effect to any grace periods, cure
periods, or required notices, if any, expressly provided for in such Note
Documents); in each case, other than any such covenant or agreement that is the
subject to another Event of Default, and such failure continues for a period of
20 Business Days; (vi) if any material portion of any Note Party's assets is
attached, seized, subjected to a writ or distress warrant, levied upon, or comes
into the possession of any third Person; (vii) if any Note Party is enjoined,
restrained, or in any way prevented by court order from continuing to conduct
all or any material part of its business affairs; (viii) if a notice of Lien,
levy, or assessment, individually or in the aggregate in an amount of $500,000
or greater, is filed of record with respect to any Note Party's assets by the
United States or Canada,
A-4
or any department, agency, or instrumentality thereof, or by any state,
province, territory, county, municipal, or governmental agency, or if any taxes
or debts owing at any time hereafter to any one or more of such entities becomes
a Lien, whether xxxxxx or otherwise, upon any Borrower's or any of its
Subsidiaries' assets and the same is not paid on the payment date thereof; (ix)
if a judgment or other claim becomes a Lien or encumbrance upon any material
portion of any Note Party's properties or assets; (x) if there is a default in
any material agreement to which any Note Party is a party including, without
limitation, any Material Contract, Affiliate Contract or any material contract
with any of SAC Holding, SSI, PMSR or PM Preferred (other than the New AMERCO
Notes and the Synthetic Leases) or any other Indebtedness in excess of
$1,000,000, and such default (a) occurs at the final maturity of the obligations
thereunder, or (b) results in the acceleration of the maturity of the applicable
Note Party's obligations thereunder; (xi) except as otherwise set forth in the
Reorganization Plan or as otherwise permitted by the Indenture, if any Note
Party makes any payment on account of Indebtedness that has been contractually
subordinated in right of payment to the payment of the Obligations of the Note
Parties under the Notes and the other Note Documents; (xii) if the obligation of
any Guarantor under the Guaranty Agreement or its Note Guarantee is limited or
terminated by operation of law or by such Guarantor thereunder; (xiii) if the
Indenture or any other Note Document that purports to create a Lien, shall, for
any reason, fail or cease to create a valid and perfected, except to the extent
permitted by the terms thereof, Lien on or security interest (each, second in
priority only to the first priority security interests granted to Bank Lenders'
Agent pursuant to the New Credit Agreement and the other Loan Documents (as
defined in the New Credit Agreement)) in the Collateral covered thereby; (xiv)
if any provision of any Note Document shall at any time for any reason be
declared to be null and void, or the validity or enforceability thereof shall be
contested by any Note Party, or a proceeding shall be commenced by any Note
Party, or by any Governmental Authority having jurisdiction over any Note Party,
seeking to establish the invalidity or unenforceability thereof, or any Note
Party shall deny that any Note Party has any liability or obligation purported
to be created under any Note Document; (xv) if suit or action is commenced
against the Trustee and/or any Note Holder and, as to any suit or action brought
by any Person other than the Note Parties or an officer or employee of the Note
Parties, is continued without dismissal for 30 days after service thereof on the
Trustee, that asserts, by or on behalf of the Note Parties, any claim or legal
or equitable remedy which seeks subordination of the claim or Lien of the
Trustee and/or any Note Holder hereunder or under any other Note Document; (xvi)
if any Note Party shall file any application in support of, or shall otherwise
fail to contest in good faith, a suit or action of the type set forth in clause
(xvi) above filed by any Person other than a Borrower or an officer or employee
of Borrowers; (xvii) if an Insolvency Proceeding is commenced by or against any
Note Party, or any of its Subsidiaries (other than INW), and any of the
following events occur: (a) the applicable Note Party or the Subsidiary consents
to the institution of the Insolvency Proceeding against it, (b) the petition
commencing the Insolvency Proceeding is not timely controverted, (c) the
petition commencing the Insolvency Proceeding is not dismissed within 45
calendar days of the date of the filing thereof, (d) an interim trustee is
appointed to take possession of all or any substantial portion of the properties
or assets of, or to operate all or any substantial portion of the business of,
any Note Party or any of its Subsidiaries, or (e) an order for relief shall have
been entered therein; (xviii) (1) if any event of default occurs under any New
AMERCO Note Document or any of the Synthetic Leases; (2) if any holder of New
AMERCO Notes contests that the Obligations hereunder constitute "Senior
Indebtedness" under the New AMERCO Note Indenture; or (3) any event of default
occurs under the New Credit Agreement of any other Loan Document (as defined in
the New Credit Agreement); (xix) failure by the Note Parties to register
substantially all of the Certificates of Title pursuant to
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Section 11.01(c) of the Indenture within 180 days after the Issue Date; (xx)
failure by the Note Parties to deliver the Mortgages, related fixture filings
and Mortgage Policies pursuant to Section 11.01(a) and, as applicable, Section
11.09 of the Indenture within 60 days after the Issue Date, or (xxi) if any
material misstatement or material misrepresentation exists now or hereafter in
any warranty, representation, statement, or Record made to the Holders by any
Borrower, its Subsidiaries, or any officer, employee, agent, or director of any
Borrower or any of its Subsidiaries. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Notes will become
due and payable without further action or notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default (except
a Default relating to the payment of principal or interest) if it determines
that withholding notice is in their interest. The Holders of a majority in
aggregate principal amount of the Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default and its consequences under the Indenture except a continuing Default in
the payment of interest on, premium and Additional Interest, if any, or the
principal of, the Notes. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company is
required upon becoming aware of any Default, to deliver to the Trustee a
statement specifying such Default.
TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
NO RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator
or stockholder of the Company or any Guarantor, as such, shall not have any
liability for any obligations of the Company or any Guarantor under the Notes,
the Note Guarantees or the Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes and the Guarantees.
AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (=-Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
A-6
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
AMERCO
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxx, Xxxxxx 00000-0000
Attention: Assistant Treasurer
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ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:___________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:_____________
Your Signature:____________________
(Sign exactly as your name
appears on the face of
this Note)
Signature Guarantee*:________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-8
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Xxxxxx
Xxxxxx of Amount of [at maturity] of Signature of
decrease in increase in this Global Note authorized
Principal Amount Principal Amount following such officer of the
[at maturity] of [at maturity] of decrease (or Trustee or Note
Date of Exchange this Global Note this Global Note increase) Custodian
---------------- ---------------- ---------------- ---------------- ---------------
* This schedule should be included only if the Note is issued in global form.
A-9
EXHIBIT B
[Insert the Global Note Legend, if applicable pursuant to the provisions
of the Indenture]
[Insert the Private Placement Legend]
[FACE OF NOTE]
CUSIP No. [ ]
ISIN No. [ ]
9.0% Second Lien Senior Secured Notes due 2009
No. _______ $____________
AMERCO
promises to pay to______________________________________________________________
or registered assigns,
the principal sum of____________________________________________________________
Dollars on_____________, 2009.
The reference date for this Note is March 1, 2004. The Issue Date for this Note
is March 15, 2004.
Interest Payment Dates: March 15, June 15, September 15, and December 15
Record Dates: March 1, June 1, September 1, and December 1
AMERCO
By:________________________________
Name:
Title:
This is one of the Notes referred to in
the within-mentioned Indenture:
Dated: _______________, ____
XXXXX FARGO BANK, N.A., as Trustee
By:________________________________
Authorized Signatory [BACK OF NOTE]
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[BACK OF NOTE]
9.0% SECOND LIEN SENIOR SECURED NOTES DUE 2009
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
INTEREST. AMERCO, a Nevada corporation (the "Company"), promises to pay
interest on the principal amount of this Note at 9.0% per annum from March 15,
2004 until paid in full. The Company will pay interest quarterly in arrears on
March 15, June 15, September 15 and December 15 of each year, or if any such day
is not a Business Day, on the next succeeding Business Day (each, an "Interest
Payment Date"). Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
issuance; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be June 15, 2004.
Interest will be computed on the basis of a 360-day year of four 90-day
quarters, or during any partial quarter, on the basis of a 360-day year for the
actual number of days elapsed.
Upon the occurrence and during the continuation of an Event of Default
and in any event from and after the maturity hereof, the principal amount of
this Note and all other Obligations owing under the Note Documents (whether
overdue premium or installments of interest or otherwise) shall bear, and the
Company shall pay from time to time on demand, interest at a rate per annum that
is two percentage points (2.0%) in excess of the per annum rate otherwise
applicable hereunder and the other Note Documents.
In addition to and not in substitution of the foregoing, Additional
Interest shall accrue, and the Company shall pay the same as and when due, in
accordance with the Indenture and the other Note Documents.
METHOD OF PAYMENT. The Company will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the March 1, June 1, September 1 or December 1 next
preceding the Interest Payment Date, even if such Notes are canceled after such
record date and on or before such Interest Payment Date, except as provided in
Section 2.12 of the Indenture with respect to defaulted interest. The Notes will
be payable as to principal, premium, if any, and interest at the office or
agency of the Company maintained for such purpose within or without the City and
State of New York, or, at the option of the Company, payment of interest may be
made by check mailed to the Holders at their addresses set forth in the register
of Holders, and provided that payment by wire transfer of immediately available
funds will be required with respect to principal of, premium, if any, and
interest on all Global Notes and all other Notes the Holders of which shall have
provided wire transfer instructions to the Company or the Paying Agent at least
ten Business Days prior to the applicable payment date. Such payment shall be in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts.
AGENT AND REGISTRAR. Initially, Xxxxx Fargo Bank, N.A., the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company may
change the Paying Agent
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or Registrar only with the prior written consent of the Required Holders and
notice in writing to the Trustee. The Company or any of its Subsidiaries may act
in any such capacity.
INDENTURE. The Company issued the Notes under an Indenture dated as of
March 1, 2004 ("Indenture") between the Company, the Guarantors listed on the
signature page therein (the "Guarantors") and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code
Sections 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The
Class B Notes are obligations of the Company limited to $80,000,000.00 in
aggregate principal amount, and the Notes are obligations of the Company limited
to $200,000,000.00 in aggregate principal amount.
OPTIONAL REDEMPTION. The Company shall not have the option to redeem
the Notes pursuant to this Section 3.07 prior to March 16, 2005. On or after
March 16, 2005, the Company shall have the option to redeem the Notes, in whole
or in part, at the redemption prices (expressed as percentages of principal
amount) set forth below, plus accrued and unpaid interest thereon to the
applicable redemption date, if redeemed during the 12-month period beginning on
March 16 of the years indicated below;
Year Percentage
---- ----------
2005 105.50%
2006 104.50%
2007 101.00%
2008 and thereafter 100.00%
Any such optional redemption shall be made pursuant to the provisions
of Sections 3.01 through 3.06 of the Indenture.
MANDATORY REDEMPTION.
Neither the Company nor the Guarantors shall be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. On and after the redemption
date interest ceases to accrue on Notes or portions thereof called for
redemption.
MATURITY. To the extent not sooner redeemed, accelerated, or otherwise
due and payable in accordance herewith or the other Note Documents, the
outstanding principal balance hereof, all accrued and unpaid interest thereon,
and all other Obligations owing under the Note Documents, shall be due and
payable on February 27, 2009.
B-3
DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1. The transfer of Notes may be registered
and Notes may be exchanged as provided in the Indenture. The Registrar and the
Trustee may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The Company
need not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, the Company need not exchange or register the transfer
of any Notes for a period of 15 days before a selection of Notes to be redeemed
or during the period between a record date and the succeeding Interest Payment
Date.
PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.
AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture, the Note Guarantees or the Notes may be amended or supplemented with
the consent of the Holders of at least a majority in principal amount of the
then outstanding Notes, and any existing default or compliance with any
provision of the Indenture, the Note Guarantees or the Notes may be waived with
the consent of the Holders of a majority in principal amount of the then
outstanding Notes. Without the consent of any Holder of a Note, the Indenture,
the Note Guarantees or the Notes may be amended or supplemented to cure any
ambiguity, defect or inconsistency; to provide for uncertificated Notes in
addition to or in place of certificated Notes; to release any Guarantor from any
of its obligations under its Note Guarantee or the Indenture (to the extent
permitted by the Indenture); to make any change that does not materially
adversely affect the legal rights hereunder of any Holder of the Notes; or to
comply with requirements of the SEC in order to effect or maintain the
qualification of the Indenture under the Trust Indenture Act.
DEFAULTS AND REMEDIES. Events of Default include: (i) default for 5
days in the payment when due of interest or additional interest, if any, on the
Notes; (ii) default in payment when due of principal of the Notes when the same
becomes due and payable at maturity, upon redemption, upon purchase, upon
acceleration or otherwise; (iii) failure by the relevant Note Party to comply
with any of its agreements or covenants described under Sections 4.08, 4.11(b),
4.12, 4.16, 4.17, 11.07, 11.09 (except to the extent applicable under (xx)
below), 11.12, 11.17 or Article V of the Indenture; (iv) failure by the relevant
Note Party to comply with any of its agreements or covenants in Sections 4.04,
4.06, 4.07, 4.09, 4.10, 4.11(a), 4.13, 4.15, 4.19 and 11.10 of the Indenture and
such failure continues for a period of 20 Business Days; (v) failure by a Note
Party to comply with any covenants or agreements contained in the Indenture or
in any of the other Note Documents (giving effect to any grace periods, cure
periods, or required notices, if any, expressly provided for in such Note
Documents); in each case, other than any such covenant or agreement that is the
subject to another Event of Default, and such failure continues for a period of
20 Business Days; (vi) if any material portion of any Note Party's assets is
attached, seized, subjected to a writ or distress warrant, levied upon, or comes
into the possession of any third Person; (vii) if any Note Party is enjoined,
restrained, or in any way prevented by court order from continuing to conduct
all or any material part of its business affairs; (viii) if a notice of Lien,
levy, or assessment, individually or in the aggregate in an amount of $500,000
or greater, is filed of record with respect to any Note Party's assets by the
United States or Canada, or any department, agency, or instrumentality thereof,
or by any state, province, territory, county,
B-4
municipal, or governmental agency, or if any taxes or debts owing at any time
hereafter to any one or more of such entities becomes a Lien, whether xxxxxx or
otherwise, upon any Borrower's or any of its Subsidiaries' assets and the same
is not paid on the payment date thereof; (ix) if a judgment or other claim
becomes a Lien or encumbrance upon any material portion of any Note Party's
properties or assets; (x) if there is a default in any material agreement to
which any Note Party is a party including, without limitation, any Material
Contract, Affiliate Contract or any material contract with any of SAC Holding,
SSI, PMSR or PM Preferred (other than the New AMERCO Notes and the Synthetic
Leases) or any other Indebtedness in excess of $1,000,000, and such default (a)
occurs at the final maturity of the obligations thereunder, or (b) results in
the acceleration of the maturity of the applicable Note Party's obligations
thereunder; (xi) except as otherwise set forth in the Reorganization Plan or as
otherwise permitted by the Indenture, if any Note Party makes any payment on
account of Indebtedness that has been contractually subordinated in right of
payment to the payment of the Obligations of the Note Parties under the Notes
and the other Note Documents; (xii) if the obligation of any Guarantor under the
Guaranty Agreement or its Note Guarantee is limited or terminated by operation
of law or by such Guarantor thereunder; (xiii) if the Indenture or any other
Note Document that purports to create a Lien, shall, for any reason, fail or
cease to create a valid and perfected, except to the extent permitted by the
terms thereof, Lien on or security interest (each, second in priority only to
the first priority security interests granted to Bank Lenders' Agent pursuant to
the New Credit Agreement and the other Loan Documents (as defined in the New
Credit Agreement)) in the Collateral covered thereby; (xiv) if any provision of
any Note Document shall at any time for any reason be declared to be null and
void, or the validity or enforceability thereof shall be contested by any Note
Party, or a proceeding shall be commenced by any Note Party, or by any
Governmental Authority having jurisdiction over any Note Party, seeking to
establish the invalidity or unenforceability thereof, or any Note Party shall
deny that any Note Party has any liability or obligation purported to be created
under any Note Document; (xv) if suit or action is commenced against the Trustee
and/or any Note Holder and, as to any suit or action brought by any Person other
than the Note Parties or an officer or employee of the Note Parties, is
continued without dismissal for 30 days after service thereof on the Trustee,
that asserts, by or on behalf of the Note Parties, any claim or legal or
equitable remedy which seeks subordination of the claim or Lien of the Trustee
and/or any Note Holder hereunder or under any other Note Document; (xvi) if any
Note Party shall file any application in support of, or shall otherwise fail to
contest in good faith, a suit or action of the type set forth in clause (xvi)
above filed by any Person other than a Borrower or an officer or employee of
Borrowers; (xvii) if an Insolvency Proceeding is commenced by or against any
Note Party, or any of its Subsidiaries (other than INW), and any of the
following events occur: (a) the applicable Note Party or the Subsidiary consents
to the institution of the Insolvency Proceeding against it, (b) the petition
commencing the Insolvency Proceeding is not timely controverted, (c) the
petition commencing the Insolvency Proceeding is not dismissed within 45
calendar days of the date of the filing thereof, (d) an interim trustee is
appointed to take possession of all or any substantial portion of the properties
or assets of, or to operate all or any substantial portion of the business of,
any Note Party or any of its Subsidiaries, or (e) an order for relief shall have
been entered therein; (xviii) (1) if any event of default occurs under any New
AMERCO Note Document or any of the Synthetic Leases; (2) if any holder of New
AMERCO Notes contests that the Obligations hereunder constitute "Senior
Indebtedness" under the New AMERCO Note Indenture; or (3) any event of default
occurs under the New Credit Agreement of any other Loan Document (as defined in
the New Credit Agreement); (xix) failure by the Note Parties to register
substantially all of the Certificates of Title pursuant to Section 11.01(c) of
the Indenture within 180 days after the Issue Date; (xx) failure by the Note
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Parties to deliver the Mortgages, related fixture filings and Mortgage Policies
pursuant to Section 11.01(a) and, as applicable, Section 11.09 of the Indenture
within 60 days after the Issue Date, or (xxi) if any material misstatement or
material misrepresentation exists now or hereafter in any warranty,
representation, statement, or Record made to the Holders by any Borrower, its
Subsidiaries, or any officer, employee, agent, or director of any Borrower or
any of its Subsidiaries. If any Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in principal amount of the then
outstanding Notes may declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Notes will become
due and payable without further action or notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default (except
a Default relating to the payment of principal or interest) if it determines
that withholding notice is in their interest. The Holders of a majority in
aggregate principal amount of the Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default and its consequences under the Indenture except a continuing Default in
the payment of interest on, premium and Additional Interest, if any, or the
principal of, the Notes. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company is
required upon becoming aware of any Default, to deliver to the Trustee a
statement specifying such Default.
TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
NO RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator
or stockholder of the Company or any Guarantor, as such, shall not have any
liability for any obligations of the Company or any Guarantor under the Notes,
the Note Guarantees or the Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes and the Guarantees.
AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
ADDITIONAL RIGHTS OF HOLDERS OF CLASS B GLOBAL NOTES AND CLASS B
DEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Restricted Global Notes and Restricted Definitive
Notes shall have all the rights set forth in the Note Purchase Agreement and
Registration Rights Agreement each dated as of March 1, 2004 between the Company
and the parties named on the signature pages thereof (respectively, "Note
Purchase Agreement" and the "Registration Rights Agreement").
ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
B-6
CUSIP NUMBERS. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
AMERCO
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxx, Xxxxxx 00000-0000
Attention: Assistant Treasurer
B-7
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:___________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date:_____________
Your Signature:____________________
(Sign exactly as your name
appears on the face of
this Note)
Signature Guarantee*:________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
B-8
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Xxxxxx
Xxxxxx of Amount of [at maturity] of Signature of
decrease in increase in this Global Note authorized
Principal Amount Principal Amount following such officer of the
[at maturity] of [at maturity] of decrease (or Trustee or Note
Date of Exchange this Global Note this Global Note increase) Custodian
---------------- ---------------- ---------------- ----------------- ---------------
* This schedule should be included only if the Note is issued in global form.
B-9
EXHIBIT C
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, fully and
unconditionally guaranteed, to the extent set forth in the Indenture (defined
below) and subject to the provisions in the Indenture dated as of March 1, 2004
(the "Indenture") among AMERCO, the Guarantors listed on the signature pages
thereto and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"), (a) the due and
punctual payment of the principal of and interest on the Notes (as defined in
the Indenture), whether at maturity, by acceleration, redemption or otherwise,
the due and punctual payment of interest on overdue principal and, to the extent
permitted by law, interest, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with
the terms of the Indenture and (b) in case of any extension of time of payment
or renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Holders of Notes and to the Trustee
pursuant to the Note Guarantee and the Indenture are expressly set forth in
Article X of the Indenture and reference is hereby made to the Indenture for the
precise terms of the Note Guarantee. Each Holder of a Note, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee, on behalf of such Holder, to take such action as may be
necessary or appropriate to effectuate the subordination as provided in the
Indenture and (c) appoints the Trustee attorney-in-fact of such Holder for such
purpose; provided, however, that the Indebtedness evidenced by this Note
Guarantee shall cease to be so subordinated and subject in right of payment upon
any defeasance of this Note in accordance with the provisions of the Indenture.
[Guarantors' Signature Blocks to be Provided]
C-1
EXHIBIT D
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental Indenture (this "Supplemental Indenture"), dated as of
________________, among __________________ (the "Guaranteeing Subsidiary"), a
subsidiary of AMERCO (or its permitted successor), a Nevada corporation (the
"Company"), the Company, the other Guarantors (as defined in the Indenture
referred to herein) and Xxxxx Fargo Bank, N.A., as trustee under the indenture
referred to below (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of March 1, 2004 providing for
the issuance of an aggregate principal amount of up to $200,000,000 of 9.0%
Second Lien Senior Secured Notes due 2009 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "Note Guarantee"); and
WHEREAS, pursuant to the terms of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees as
follows:
(a) Along with all Guarantors named in the Indenture, to jointly and
severally Guarantee to each Holder of a Note authenticated and delivered by the
Trustee and to the Trustee and its successors and assigns, the Notes or the
obligations of the Company hereunder or thereunder, that:
(i) the principal of and interest on the Notes will be
promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of, the
premium and Additional Interest and interest on the Notes,
D-1
if any, if lawful, and all other obligations of the Company to the
Holders or the Trustee hereunder or thereunder will be promptly paid in
full or performed, all in accordance with the terms hereof and thereof;
and
(ii) in case of any extension of time of payment or renewal of
any Notes or any of such other obligations, that same will be promptly
paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or
otherwise. Failing payment when due of any amount so guaranteed or any
performance so guaranteed for whatever reason, the Guarantors shall be
jointly and severally obligated to pay the same immediately.
(b) The obligations hereunder shall be full and unconditional,
irrespective of the validity or enforceability of the Notes or the Indenture,
the absence of any action to enforce the same, any waiver or consent by any
Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor.
(c) The following is hereby waived: diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or bankruptcy
of the Company, any right to require a proceeding first against the Company,
protest, notice and all demands whatsoever.
(d) This Note Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the Indenture, and the
Guaranteeing Subsidiary accepts all obligations of a Guarantor under the
Indenture.
(e) If any Holder or the Trustee is required by any court or otherwise
to return to the Company, the Guarantors, or any Custodian, the Trustee,
liquidator or other similar official acting in relation to either the Company or
the Guarantors, any amount paid by either to the Trustee or such Holder, this
Note Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the Holders and the
Trustee, on the other hand, (x) the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article VI of the Indenture for the
purposes of this Note Guarantee, notwithstanding any stay, injunction or other
prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article VI of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Note Guarantee.
(h) The Guarantors shall have the right to seek contribution from any
non-paying Guarantor so long as the exercise of such right does not impair the
rights of the Holders under the Guarantee.
D-2
(i) Pursuant to Section 10.02 of the Indenture, after giving effect to
any maximum amount and any other contingent and fixed liabilities that are
relevant under any applicable Bankruptcy or fraudulent conveyance laws, and
after giving effect to any collections from, rights to receive contribution from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under Article X of the Indenture, this new
Note Guarantee shall be limited to the maximum amount permissible such that the
obligations of such Guarantor under this Note Guarantee will not constitute a
fraudulent transfer or conveyance.
EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees that the
Note Guarantees shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(j) Except as otherwise provided in Section 5.03 of the Indenture, the
Guaranteeing Subsidiary may not consolidate with or merge with or into (whether
or not such Guarantor is the surviving Person) another corporation, Person or
entity whether or not affiliated with such Guarantor. Any such permitted
consolidation, merger, sale or conveyance shall not be effective or permitted
unless:
(i) subject to Sections 10.04 and 10.05 of the Indenture, the
Person formed by or surviving any such consolidation or merger (if
other than a Guarantor or the Company) unconditionally assumes all the
obligations of such Guarantor, pursuant to a supplemental indenture in
form of Exhibit D to the Indenture, under the Notes, the Indenture and
the Note Guarantee on the terms set forth herein or therein; and
(ii) immediately after giving effect to such transaction, no
Default or Event of Default exists.
(k) In case of any such consolidation, merger, sale or conveyance and
upon the assumption by the successor Person, by supplemental indenture, executed
and delivered to the Trustee, of the Note Guarantee endorsed upon the Notes and
the due and punctual performance of all of the covenants and conditions of the
Indenture to be performed by the Guarantor, such successor Person shall succeed
to and be substituted for the Guarantor with the same effect as if it had been
named herein as a Guarantor. Such successor Person thereupon may cause to be
signed any or all of the Note Guarantees to be endorsed upon all of the Notes
issuable hereunder which theretofore shall not have been signed by the Company
and delivered to the Trustee. All the Note Guarantees so issued shall in all
respects have the same legal rank and benefit under the Indenture as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of the
Indenture as though all of such Note Guarantees had been issued at the date of
the execution hereof.
(l) Any consolidation or merger of a Guarantor with or into the Company
or another Guarantor, or any sale or conveyance of the property of a Guarantor
as an entirety or substantially as an entirety to the Company or another
Guarantor shall be permitted only in accordance with the terms and provisions of
the Indenture.
D-3
RELEASES.
(m) A Guarantor shall be released from its obligations only in
accordance with the terms and provisions of the Indenture.
(n) The Guaranteeing Subsidiary, if not released from its obligations
under the Note Guarantee, shall remain liable for the full amount of principal
of and interest on the Notes and for the other obligations of any Guarantor
under the Indenture as provided in Article X of the Indenture.
NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the Company
or any Guaranteeing Subsidiary under the Notes, any Note Guarantees, the
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of the
Notes by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes and the
Guarantees. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Securities and Exchange
Commission that such a waiver is against public policy.
NEW YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
TRUSTEE. The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Supplemental Indenture
or for or in respect of the recitals contained herein, all of which recitals are
made solely by the Guaranteeing Subsidiary and the Company.
D-4
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
Dated:_____________, ____
[GUARANTEEING SUBSIDIARY]
By:________________________________
Name:
Title:
[Guarantors' Signature Blocks to
be Provided]
D-5
