CREDIT AGREEMENT dated as of May 31, 2006 among U-HAUL LEASING& SALES CO., U-HAUL CO. OF ARIZONA, and U-HAUL INTERNATIONAL, INC., as Borrowers U-HAUL INTERNATIONAL, INC., as Servicer/Manager, Guarantor and Custodian AMERCO, as Guarantor BTMU CAPITAL...
Exhibit
10.85
dated
as of
May
31, 2006
among
U-HAUL
LEASING&
SALES CO.,
U-HAUL
CO. OF ARIZONA,
and
U-HAUL
INTERNATIONAL, INC.,
as
Borrowers
U-HAUL
INTERNATIONAL, INC.,
as
Servicer/Manager, Guarantor and Custodian
AMERCO,
as
Guarantor
BTMU
CAPITAL CORPORATION,
as
Lender
and
ORANGE
TRUCK TRUST 2006,
as
Collateral Agent
(New
Truck Term Loan Facility)
DEFINITIONS
Section
1.01.Defined
Terms1
Section
1.02.Terms
Generally14
Section
1.03.Accounting
Terms; GAAP15
ARTICLE
II
THE
LOANS
Section
2.01.Commitments15
Section
2.02.The
Note15
Section
2.03.Making
the Loans16
Section
2.04.Repayment
of Loans; Evidence of Debt16
ARTICLE
III
SECURITY
Section
0.00.Xxxxxxxx
Interest17
Section
3.02.Release
of Collateral17
ARTICLE
IV
SERVICING
AND MAINTENANCE
Section
4.01.Servicer/Manager;
Monthly Settlement Report18
Section
4.02.Custody
of Vehicle Files18
Section
4.03.Maintenance20
ARTICLE
V
FEES,
INTEREST, ACCOUNTS, PAYMENTS, ETC.
Section
5.01.Fees
and
Expenses20
Section
5.02.Interest
on the Loans21
Section
5.03.Collections
and Cash Flows21
Section
5.04.Payments
to be Made23
Section
5.05.Optional
Prepayments23
Section
5.06.[Reserved]24
Section
5.07.Illegality;
Substituted Interest Rate, etc24
Section
5.08.Payments
of Principal; Mandatory Prepayments24
Section
5.09.Increased
Costs25
Section
5.10.Taxes26
TABLE
OF CONTENTS
(continued)
Page
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES
Section
6.01.Organization;
Powers27
Section
6.02.Authorization;
Enforceability27
Section
6.03.Governmental
Approvals; No Conflicts27
Section
0.00.Xxxxxxxxx
Condition; No Material Adverse Change27
Section
6.05.Properties;
Liens and Licenses28
Section
6.06.Litigation
Matters28
Section
6.07.Compliance
with Laws and Agreements28
Section
6.08.Investment
and Holding Company Status28
Section
6.09.Taxes28
Section
6.10.ERISA29
Section
6.11.Disclosure29
Section
6.12.The
Collateral29
Section
6.13.Liens
on
the Collateral30
Section
6.14.Eligible
Vehicle Collateral30
Section
6.15.Insurance30
Section
6.16.Labor
Matters30
Section
0.00.Xxxxxxxx
Documents30
Section
6.18.Margin
Regulations30
ARTICLE
VII
CONDITIONS
Section
7.01.Effective
Date30
Section
7.02.Each
Loan32
ARTICLE
VIII
AFFIRMATIVE
COVENANTS
Section
0.00.Xxxxxxxxx
Statements and Other Information33
Section
8.02.Notices
of Material Events34
Section
8.03.Information
Regarding Collateral35
Section
8.04.Existence;
Conduct of Business35
Section
8.05.Payment
of Obligations35
Section
8.06.Maintenance
of Properties and Fleet Owner Cash Flow35
Section
8.07.Insurance36
TABLE
OF CONTENTS
(continued)
Page
Section
8.08.Books
and
Records; Inspection Rights36
Section
8.09.Compliance
with Laws and Agreements36
Section
8.10.Use
of
Proceeds36
Section
8.11.Further
Assurances36
Section
8.12.Casualty37
Section
8.13.Interest
Rate Protection37
ARTICLE
IX
NEGATIVE
COVENANTS
Section
9.01.Change
in
Control37
Section
9.02.Use
of
Collateral37
Section
9.03.Negative
Pledge38
Section
9.04.Limitations
on Fundamental Changes38
ARTICLE
X
EVENTS
OF
DEFAULT
Section
00.00.Xxxxxx
of
Default38
Section
10.02.Consequences
of an Event of Default40
ARTICLE
XI
ACCELERATED
AMORTIZATION EVENT
Section
11.01.Consequences
of Accelerated Amortization Event41
ARTICLE
XII
MISCELLANEOUS
Section
12.01.Notices41
Section
12.02.Waivers;
Amendments42
Section
12.03.Expenses;
Indemnity; Damage Waiver42
Section
12.04.Successors
and Assigns43
Section
12.05.Survival45
Section
12.06.Counterparts;
Integration; Effectiveness45
Section
12.07.Severability45
Section
12.08.Right
of
Setoff46
Section
12.09.Governing
Law; Jurisdiction; Consent to Service of Process46
Section
12.10.Waiver
of
Jury Trial47
Section
12.11.Headings47
Section
12.12.Confidentiality47
TABLE
OF CONTENTS
(continued)
Page
Section
12.13.Joint
and
Several Liability of the Borrowers47
SCHEDULES:
Schedule
6.04 - Liabilities
Schedule
6.15 - Insurance
EXHIBITS:
Exhibit
A Form
of
Assignment and Acceptance
Exhibit
B Form
of
Guarantee Agreement
Exhibit
C Form
of
Borrowing Request
Exhibit
D Form
of
Borrowing Base Certificate
Exhibit
E Form
of
Monthly Settlement Report
Exhibit
F Form
of
Note
Exhibit
G Pool
Amortization Schedule
Exhibit
H [Reserved]
Exhibit
I Form
of
Dealership Contract
Exhibit
J Form
of
Rental Company Contract
Exhibit
K Wire
Instructions
ANNEXES
Annex
I-1 Eligibility
Requirements
Annex
I-2 Equipment
Specifications
|
|
--
|
TABLE
OF CONTENTS
(continued)
Page
CREDIT
AGREEMENT, dated as of May 31, 2006, (the "Agreement")
among
U-HAUL
LEASING & SALES CO.,
a
Nevada corporation, as a Borrower, U-HAUL CO. OF ARIZONA, an Arizona
corporation, as a Borrower, U-HAUL INTERNATIONAL, INC., a Nevada corporation,
as
a Borrower, as Servicer/Manager and as Guarantor, AMERCO, as Guarantor and
BTMU
CAPITAL CORPORATION, a Delaware corporation, as Lender and ORANGE TRUCK TRUST
2006, a Utah common law trust, as Collateral Agent.
The
parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
Section
1.01. Defined
Terms.
As used
in this Agreement, the following terms have the meanings specified below:
"Accelerated
Amortization Event"
means
the Fleet Owner Cash Flow Ratio, at any time after the end of the 12th month
following the end of the Drawdown Period, equals or exceeds 4.0.
"Adjusted
LIBO Rate"
means,
with respect to any Loan for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/100 of 1%) equal to (a) LIBOR
for such Interest Period multiplied by (b) the Statutory Reserve Rate.
"Advance
Rate"
means,
on any date of determination and for each Monthly Pool, the rate specified
in
Exhibit
G
hereto.
"Affiliate"
means,
with respect to a specified Person, another Person that directly, or indirectly
through one or more intermediaries, Controls or is Controlled by or is under
common Control with the Person specified.
"AMERCO"
means
AMERCO, a Nevada corporation.
"Applicable
Margin"
means,
with respect to any Loan and any Interest Period, a rate equal to:
(a) from
the Closing Date through the initial twelve months following the end of Drawdown
Period or any date on which the conditions specified in clause (b) or (c) are
not satisfied, 1.75%; or
(b) at
any time after the twelfth month following the end of the Drawdown Period,
1.50%
provided the following
conditions are satisfied:
(i) the
Fleet
Owner Cash Flow Ratio is less than 2.5;
(ii) EBITDA
of
AMERCO for the preceding twelve calendar months as reported to the Lender and
in
a form satisfactory to the Lender is at least $300,000,000; and
(iii) net
income before preferred stock dividends of AMERCO for
the
preceding twelve calendar months (based upon the most recent audited annual
or
quarterly financial statements of AMERCO on file with the Securities and
Exchange Commission)
is at
least $60 million; or
(c)
at
any time after the twenty-fourth month following the end of the Drawdown Period,
1.25% provided
the following conditions are satisfied:
(i) the
Fleet
Owner Cash Flow Ratio is less than 2.25;
(ii) EBITDA
of
AMERCO for the preceding twelve calendar months as
reported to the Lender and in a form satisfactory to the Lender
is at
least $325,000,000;
(iii) net
income before preferred stock dividends of AMERCO for the preceding twelve
calendar months (based
upon the most recent audited annual or quarterly financial statements of AMERCO
on file with the Securities and Exchange Commission)
is at
least $75 million; and
(iv) the
Fixed
Charge Ratio
of
AMERCO is greater than 2.1;
provided,
that if
an Accelerated Amortization Event has occurred and is continuing, the Applicable
Margin will be increased by 1.00% per annum; provided further,
that if
an Event of Default has occurred and is continuing, the Applicable Margin will
be increased by 2.00% per annum; provided
further,
that if
the Borrowers elect to pledge additional Eligible Vehicle Collateral in
accordance with Section 11.01 (a), then from and after the date of such
election, the Applicable Margin shall be 2.00% per annum for the remaining
term
of the Facility.
"Assignment
and Acceptance"
means
an assignment and acceptance entered into by the Lender and an assignee (with
the consent of the Borrowers and the Lender if required by Section 12.04),
and
accepted by the Lender, in the form of Exhibit
A
or any
other form approved by the Lender.
"Black
Book Value"
means
the trade-in value as published by the National Automobile Dealers Association
from time to time.
"Board"
means
the Board of Governors of the Federal Reserve System of the United States of
America.
"Borrowers"
means,
collectively, jointly and severally, U-Haul Leasing & Sales Co., a Nevada
corporation, U-Haul Co. of Arizona, an Arizona corporation and U-Haul
International, Inc., a Nevada corporation.
"Borrowing
Base"
means,
on any date of determination and for each Monthly Pool, the aggregate Vehicle
Facility Value of all Eligible Vehicle Collateral in such Monthly Pool as of
such date; provided,
if an
Accelerated Amortization Event has occurred and is continuing, the Borrowing
Base will be the lesser of (i) the product of (x) 80% and (y) the
aggregate Black Book Value of the Eligible Vehicle Collateral in such Monthly
Pool, or (ii) the Vehicle Facility Value; provided
further, the
Borrowing Base for any Monthly Pool shall be zero at the earliest to occur
of
(i) the end of the 72nd month following initial funding of such Monthly
Pool or (ii) the Termination Date.
"Borrowing
Base Certificate"
means
an Officer’s Certificate of the Borrowers containing a calculation of the
Borrowing Base, including a Vehicle Schedule, and substantially in the form
of
Exhibit
D
or such
other form as shall be approved by the Lender.
"Borrowing
Base Deficiency"
means,
as of any date and with respect to any Loan or any proposed Loan, the amount,
if
any, by which the outstanding principal amount
of such
Loan exceeds or would exceed the Borrowing Base of the related Monthly
Pool.
"Borrowing
Request"
means a
request by the Borrowers for a Loan in accordance with Section 2.03
and
substantially in the form of Exhibit
C
or
such
other
form as shall be approved by the Lender.
"BTMUCC"
means
BTMU Capital Corporation, a Delaware corporation.
"Business
Day"
means
any day that is not a Saturday, Sunday or other day on which commercial banks
in
New York, New York, Boston, Massachusetts, Reno, Nevada, or Phoenix, Arizona
are
authorized or required by law to remain closed.
"Certificate
of Title"
means a
certificate of title of a Vehicle issued in paper form by the relevant
governmental department or agency in the jurisdiction in which the Vehicle
is
registered, or a record maintained by such governmental department or agency
in
the form of information stored in electronic media; provided,
that to
the extent that a certificate of title in paper form or such record stored
on
electronic media has not been issued or is not being maintained, the application
(or copy thereof) for the foregoing.
"Change
in Control"
means,
with respect to any Borrower or AMERCO, (a) any "person" or "group" (within
the
meaning of Section 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 50%, or more, of the Capital
Stock
of such person having the right to vote for the election of members of the
Board
of Directors of such Person or (b) a majority of the members of the Board of
Directors of AMERCO do not constitute Continuing Directors.
"Change
in Law"
means
(a) the adoption of any law, rule or regulation after the date of this
Agreement, (b) any change in any law, rule or regulation or in the
interpretation or application thereof by any Governmental Authority after the
date of this Agreement or (c) compliance by the Lender (or, for purposes of
Section 5.09(b), by any lending office of the Lender or by the Lender’s holding
company) with any request, guideline or directive (whether or
not
having the force of law) of any Governmental Authority made or issued after
the
date of this Agreement.
"Closing
Date"
means
May 31, 2006.
"Code"
means
the Internal Revenue Code of 1986, as amended from time to time.
"Collateral"
has the
meaning set forth in the Security Agreement.
"Collateral
Agent"
means
Orange Truck Trust 2006, in its capacity as collateral agent, on behalf of
the
Lender and its successors, indorsees, transferees and assigns pursuant to the
Security Agreement.
"Collection
Account"
means
the account established with the Collection Account Bank in the name of UHI,
subject to the Collection Account Control Agreement and bearing account No.
707634663.
"Collection Account
Bank"
means
JPMorgan Chase Bank, N.A. and its successors, or another depositary institution
mutually acceptable to the Lender and the Borrowers.
"Collection
Account Control Agreement"
means
that certain blocked account control agreement (shifting control), dated as
of
May 31, 2006, among the Collection Account Bank, UHI and the Collateral Agent,
relating to the Collection Account.
"Collection
Sub-Account"
means a
sub-account of the Collection Account bearing account No. 707634697 at the
Collection Sub-Account Bank in the name of UHI, within the sole dominion and
control of the Collateral Agent.
"Collection
Sub-Account Bank"
means
JPMorgan Chase Bank, N.A., and its successors, or another depository institution
acceptable to the Lender.
"Collection
Sub-Account Control Agreement"
means
that certain blocked account control agreement (automatic sweep/frozen account),
dated as of May 31, 2006 among the Collection Account Bank, UHI and the
Collateral Agent, relating to the Collection Sub-Account.
"Collection
Sub-Account Deposit"
means
for any Deposit Date or Loan Date, the deposit to be made by UHI into the
Collection Sub-Account pursuant to Section 5.03(c), consisting of:
(a) with
respect to a deposit on a Deposit Date relating to the Payment Date next
following such Deposit Date, an amount equal to the sum of (i) the Targeted
Principal, if any, required to be paid on such Payment Date, (ii) all interest,
fees and expenses due to be paid on such Payment Date with respect to the
related Interest Period and (iii) all other Obligations due and payable on
or
prior to such Payment Date; and
(b) with
respect to a deposit on a Loan Date, an amount equal to the sum of (i) the
additional amount monthly Targeted Principal, if any, required to be paid on
the
Payment
Date next following the date of such Loan, (ii) all additional interest, fees
and expenses due to be paid on such Payment Date with respect to the related
Interest Period and (iii) any other additional Obligations on or prior to such
Payment Date, in each case as a result of such new Loan.
"Collection
Sub-Account Failure"
means
the failure of UHI to make the required Collection Sub-Account Deposit by any
Deposit Date or Loan Date, as applicable (or, if unrestricted funds are already
on deposit in the Collection Sub-Account, the failure of UHI to deposit an
amount sufficient such that the unrestricted funds on deposit in the Collection
Sub-Account by such Deposit Date or Loan Date, as applicable, is at least equal
to the required Collection Sub-Account Deposit), which failure shall continue
unremedied for one Business Day.
"Commitment"
means,
the commitment, of the Lender to make Loans hereunder up to the Facility
Commitment Amount.
"Commonly
Controlled Entity"
means
an entity, whether or not incorporated, which is under common control with
a
Loan Party within the meaning of Section 4001 of ERISA or is a part of a group
which includes a Loan Party and which is treated as a single employer under
Section 414(b) or (c) of the Code or, for the purposes of the Code, Section
414(m) or (o) of the Code.
"Concentration
Account"
means
the account established with the Concentration Account Bank in the name of
UHI
bearing account No.42 4903.
"Concentration
Account Bank"
means
JPMorgan Chase Bank, N.A., and its successors, or another depositary institution
mutually acceptable to the Lender and the Servicer/Manager.
"Continuing
Directors"
means
the directors of AMERCO on the Closing Date and each other director of AMERCO,
if such other director’s nomination for election to the Board of Directors of
AMERCO is recommended by a majority of the then Continuing
Directors.
"Control"
means
the possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the ability
to exercise voting power, by contract or otherwise. "Controlling"
and
"Controlled"
have
meanings correlative thereto.
"Custodian"
means
the Servicer/Manager in its capacity as custodian pursuant to Section
4.02.
"Daily
Collection Account Deposit Amount"
means,
on any Business Day, an amount equal to the product of (i) a fraction, the
numerator of which is 1 and the denominator of which is 22, and (ii) an amount
equal to the Fleet Owner Cash Flows for the previous calendar
month.
"Dealership
Contract"
means a
U-Haul dealership contract between a Subsidiary of UHI, on one hand, and a
named
U-Haul dealer, on the other, substantially in the form attached as Exhibit
I
hereto,
as the same may be updated from time to time by the Borrowers.
"Default"
means
any event or condition which constitutes an Event of Default or which upon
notice, lapse of time or both would, unless cured or waived, become an Event
of
Default.
"Deposit
Date"
means,
with respect to each Payment Date, the 11th calendar day of the preceding month,
or if such day is not a Business Day, the next Business Day immediately
following such calendar day.
"Dollars"
or
"$"
means
the lawful money of the United States of America.
"Drawdown
Period"
shall
mean the period commencing on the Closing Date and ending on the earliest to
occur of (i) November 30, 2006; (ii) the date on which the aggregate
principal amount of Loans made hereunder from time to time equals the Facility
Commitment Amount; or (iii) the Termination Date on which an Event of Default
has occurred.
"Effective
Date"
means
the date on which the conditions specified in Section 7.01 are satisfied (or
waived in accordance with Section 12.02).
"Eligible
Vehicle Collateral"
means,
as of any date, a Vehicle pledged to the Collateral Agent under the Security
Agreement as to which the conditions set forth on Annex
I
are
satisfied as of such date.
"ERISA"
means
the Employee Retirement Income Security Act of 1974, as amended from time to
time.
"ERISA
Affiliate"
means
any trade or business (whether or not incorporated) that, together with any
Borrowers, is treated as a single employer under Section 414(b) or (c) of the
Code or, solely for purposes of Section 302 of ERISA and Section 412
of the Code, is treated as a single employer under Section 414 of the
Code.
"ERISA
Event"
means
(a) any "reportable event", as defined in Section 4043 of ERISA or the
regulations issued thereunder with respect to a Plan (other than an event for
which the 30-day notice period is waived); (b) the existence with respect to
any
Plan of an "accumulated funding deficiency" (as defined in Section 412 of
the Code or Section 302 of ERISA), whether or not waived; (c) the filing
pursuant to Section 412(d) of the Code or Section 303(d) of ERISA of
an application for a waiver of the minimum funding standard with respect to
any
Plan; (d) the incurrence by any Loan Party or any of its ERISA Affiliates of
any
liability under Title IV of ERISA with respect to the termination of any
Plan; (e) the receipt by any Loan Party or any ERISA Affiliate from the PBGC
or
a plan administrator of any notice relating to an intention to terminate any
Plan or Plans or to appoint a trustee to administer any Plan; (f) the incurrence
by any Loan Party or any of its ERISA Affiliates of any liability with respect
to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan;
or
(g) the receipt by any Loan Party or any ERISA Affiliate of any notice, or
the
receipt by any Multiemployer Plan of any Loan Party or any ERISA Affiliate
of
any notice, concerning the
imposition
of Withdrawal Liability or a determination that a Multiemployer Plan is, or
is
expected to be, insolvent or in reorganization, within the meaning of
Title IV of ERISA.
"Event
of Default"
has the
meaning assigned to such term in Section 10.01.
"Facility"
means
the committed loan facility offered by the Lender to the Borrowers pursuant
to
this Agreement.
"Facility
Commitment Amount"
means
$150,000,000.
"Financial
Officer"
means,
with respect to any Person, the chief executive officer, the chief financial
officer, principal accounting officer, treasurer, assistant treasurer or
controller of such Person.
"Fixed
Charge Ratio"
means,
at any time, the ratio obtained by dividing (i) EBITDAR of AMERCO and its
subsidiaries for the preceding twelve calendar months by (ii) the sum of
(A) AMERCO'S lease expense for such twelve-month period plus (B) AMERCO's
interest expenses for such twelve-month period.
"Fleet
Owner Agreement"
means
the Fleet Owner Contract - Rental Trucks, dated as of June 23, 2005, between
U-Haul Leasing & Sales Co., as fleet owner, and UHI, as amended from time to
time.
"Fleet
Owner Cash Flow"
means,
for any calendar month, the amounts payable to U-Haul Leasing & Sales Co.
with respect to such calendar month pursuant to the Fleet Owner Agreement,
which
amount shall be the gross rental revenue collected from Eligible Vehicle
Collateral during such month, plus
all
damage waiver amounts collected with respect to the Eligible Vehicle Collateral
during such month, plus
all
payments collected with respect to a Warranty payment on the Eligible Vehicle
Collateral during such month minus
all
dealer and marketing company commissions, licensing fees, maintenance costs,
insurance expenses and other adjustments under the Dealership Contracts related
to such Eligible Vehicle Collateral paid during such month.
"Fleet
Owner Cash Flow Determination Date"
means,
with respect to any Fleet Owner Cash Flows collected during any calendar month,
the third Friday of the next succeeding calendar month, or if such day is not
a
Business Day, then the next succeeding Business Day.
"Fleet
Owner Cash Flow Ratio"
means
at any time, the ratio obtained by dividing (i) the aggregate amount of
Outstanding Loans by (ii) Fleet Owner Cash Flow for the immediately
preceding twelve-month period.
"GAAP"
means,
subject to Section 1.03, generally accepted accounting principles in the United
States of America.
"Governmental
Authority"
means
the government of the United States of America, any other nation or any
political subdivision thereof, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising
executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government.
"Guarantee"
of or
by any Person (the "guarantor")
means
any obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other obligation of
any
other Person (the "primary
obligor")
in any
manner, whether directly or indirectly, and including any obligation of the
guarantor, direct or indirect, (a) to purchase or pay (or advance or supply
funds for the purchase or payment of) such Indebtedness or other obligation
or
to purchase (or to advance or supply funds for the purchase of) any security
for
the payment thereof, (b) to purchase or lease property, securities or services
for the purpose of assuring the owner of such Indebtedness or other obligation
of the payment thereof, (c) to maintain working capital, equity capital or
any
other financial statement condition or liquidity of the primary obligor so
as to
enable the primary obligor to pay such Indebtedness or other obligation or
(d)
as an account party in respect of any letter of credit or letter of guaranty
issued to support such Indebtedness or obligation; provided,
that
the term Guarantee shall not include endorsements for collection or deposit
in
the ordinary course of business.
"Guarantee
Agreement"
means
the Guarantee made by UHI and AMERCO in favor of the Lender, in the form of
Exhibit B.
"Guarantor"
means
each of UHI and AMERCO, as guarantors under the Guarantee
Agreement.
"Hedge"
has the
meaning specified in Section 7.01(m).
"Hedge
Breakage"
means
any amounts payable to the Hedge Provider in connection with the termination
or
reduction of the notional amount of a Hedge.
"Hedge
Provider"
means
The Bank of Tokyo-Mitsubishi UFJ, Ltd., New York Branch, as swap counterparty,
or any other counterparty acceptable to the Lender.
"Indebtedness"
means,
with respect to any Person, without duplication, (i) all obligations of such
Person for borrowed money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (iii) all indebtedness of
others secured by (or for which the holder of such Indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned
or
acquired by such Person, whether or not the obligations secured thereby have
been assumed (only to the extent of the fair market value of such asset if
such
Indebtedness has not been assumed by such Person), (iv) all Guarantees of such
Person, (v) all capitalized lease obligations of such Person and (vi) all
obligations of such Person as an account party in respect of letters of credit
and similar instruments issued for the account of such Person.
"Indemnitee"
has the
meaning set forth in Section 12.03(b).
"Interest
Period"
means
with respect to any Loan and Payment Date, (i) in the case of the
first
Payment
Date for such Loan, the period from and including the related Loan
Date
to
but excluding such first Payment Date and (ii) any other Payment Date,
the
period from and including the immediately preceding Payment Date to but
excluding such Payment Date.
"Interest
Rate"
means,
with respect to any Loan and any Interest Period, subject to Sections 5.07
and
11.01, a rate (in each case computed on the basis
of the
actual number of days elapsed, but assuming a 360-day year) equal to LIBOR
plus
the Applicable Margin.
"Lender"
means
BTMUCC, together with its successors, transferees and any assigns.
"LIBOR"
means,
with respect to each Interest Period, the rate of interest per annum (rounded
upwards, if necessary, to the nearest 1/100th
of 1%)
for Dollar deposits in London with a duration of one month, at or about 11:00
a.m. on the related LIBOR Determination Date as such rate is specified on
Bloomberg Money Markets Page BBAM, or, if such page ceases to display such
information, then such other page as may replace it on that service for the
purpose of display of such information, or, if such service ceases to display
such information, then on Telerate Page 3750. If such rate cannot be determined,
then LIBOR means, with respect to such Rate Period, the arithmetic mean of
the
rates of interest (rounded upwards, if necessary, to the nearest 1/100th of
1%)
offered to two prime banks in the London interbank market (selected by the
Lender) of Dollar deposits with a duration of one month at or about
11:00 a.m. on the related LIBOR Determination Date.
"LIBOR
Business Day"
means a
Business Day on which trading in Dollars is conducted by and between banks
in
the London interbank market.
"LIBOR
Determination Date"
means,
with respect to any Interest Period, the second LIBOR Business Day prior to
the
first day of such Interest Period.
"Lien"
means,
with respect to any asset, (a) any mortgage, deed of trust, lien, pledge,
hypothecation, encumbrance, charge or security interest in, on or of such asset,
(b) the interest of a vendor or a lessor under any conditional sale agreement,
capital lease or title retention agreement (or any financing lease having
substantially the same economic effect as any of the foregoing) relating to
such
asset and (c) in the case of securities, any purchase option, call or similar
right of a third party with respect to such securities.
"Loan"
means
an advance made to the Borrowers by the Lender pursuant to this
Agreement.
"Loan
Date"
means
any date on which a Loan is made to the Borrowers by the Lender pursuant to
this
Agreement.
"Loan
Documents"
means
this Agreement, the Note, the Guarantee Agreement, the Collection Account
Control Agreement, the Collection Sub-Account Control Agreement, the Structuring
Fee Letter, any Hedge and the Security Documents.
"Loan
Parties"
means
each Guarantor, the Servicer/Manager and the Borrowers.
"Margin
Stock"
has the
meaning set forth in Regulation U
of the Board.
"Material
Adverse Change"
means a
material adverse change in the business, condition (financial or otherwise),
operations, performance or properties of AMERCO or the Borrowers.
"Material
Adverse Effect"
means a
material adverse effect on (a) the business, condition (financial or otherwise),
operations, performance or properties of AMERCO or the Borrowers, (b) the
ability of any Borrower or any other Loan Party to perform any of its
obligations under any Loan Document, (c) the legality, validity, binding effect
or enforceability of this Agreement or any other Loan Document or (d) the
Collateral or the first priority perfected security interest of the Collateral
Agent in the Collateral.
"Monthly
Pool"
means a
pool of Eligible Vehicle Collateral designated by the Servicer/Manager as
belonging to a specified pool and segregated by month of acquisition for the
purpose of financing such pool with the proceeds of a single Loan
hereunder.
"Monthly
Settlement Report"
means a
report substantially in the form set forth on Exhibit
E.
"Multiemployer
Plan"
means a
multiemployer plan as defined in Section 4001(a)(3) of ERISA.
"Net
Proceeds"
means,
with respect to any casualty or condemnation event, (a) the cash proceeds
received in respect of such event including (i) in the case of a casualty,
insurance proceeds, and (ii) in the case of a condemnation or similar event,
condemnation awards and similar payments, net of (b) the sum of all reasonable
fees and out-of-pocket expenses paid by the Borrowers to third parties (other
than Affiliates) in connection with such event.
"Note"
means
the Note, dated the Closing Date, executed by the Borrowers, payable to the
order of the Lender, in the maximum principal amount of the Facility Commitment
Amount, in substantially the form of Exhibit F.
"Obligations"
means
all obligations owing by the Borrowers under the Loan Documents.
"Outstanding
Loans"
means,
as of any date, the unpaid principal amount of all Loans outstanding hereunder
on such date, after giving effect to all repayments of Loans and the making
of
new Loans on such date.
"Participant"
has the
meaning set forth in Section 12.04(c).
"Payment
Date"
means
the 10th calendar day of each month, or if such day is not a Business Day,
the
next Business Day immediately following such calendar day, commencing with
the
first such date to occur in July 2006.
"PBGC"
means
the Pension Benefit Guaranty Corporation referred to and defined in ERISA and
any successor entity performing similar functions.
"Permitted
Encumbrances"
means:
(a) Liens
imposed by law for taxes, assessments, governmental charges or similar claims
that are not yet due or are being contested in compliance with Section
8.05;
(b) statutory
or common law Liens of landlords and carriers, warehousemen, mechanics,
suppliers, materialmen, repairmen and other similar Liens, arising in the
ordinary course of business and securing obligations that are not yet delinquent
or are being contested in compliance with Section 8.05;
(c) Liens
incurred or deposits made in the ordinary course of business in connection
with
workers’ compensation, unemployment insurance and other types of social
security;
(d) Liens
incurred or deposits made to secure the performance of tenders, bids, leases,
statutory or regulatory obligations, surety and appeal bonds, government
contracts, performance and return-of-money bonds and other obligations of a
like
nature, in each case in the ordinary course of business, and a bank’s
unexercised right of set-off with respect to deposits made in the ordinary
course;
(e) judgment
liens in respect of judgments that do not constitute an Event of Default under
clause (j) of Section 10.01;
(f) interests
of lessees under leases or subleases granted by the Borrowers as lessor that
do
not materially interfere with the ordinary course of business of the
Borrowers;
(g) interests
of licensees under licenses or sublicenses granted by the Borrowers as licensor
that do not materially interfere with the ordinary course of business of the
Borrowers;
(h) any
interest or title of a lessor in any property subject to any capital or
operating lease otherwise not entered into in violation of the Loan Documents
or
in any property not constituting Collateral; and
(i) any
interest or title of a licensor in any property subject to any license otherwise
not entered into in violation of the Loan Documents.
"Permitted
Holder"
means
Xxxxxx X. Xxxxx, Xxxx X. Xxxxx, Xxxxx X. Xxxxx and their Family Members, and
their Family Trusts. As used in this definition, "Family Member" means, with
respect to any individual, the spouse and lineal descendants (including children
and grandchildren by adoption) of such individual, the spouses of each such
lineal descendants, and the lineal descendants of such Persons; and "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.
"Person"
means
any natural person, corporation, limited liability company, trust, joint
venture, association, company, partnership, Governmental Authority or other
entity.
"Plan"
means
at a particular time, any employee benefit plan which is covered by Title IV
of
ERISA and in respect of which a Loan Party or a Commonly Controlled Entity
is
(or, if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Prime
Rate"
means
the rate of interest per annum published from time to time in the "Money Rates"
column (or any successor column) of The
Wall Street Journal
as the
prime rate or, if such rate shall cease to be so published or is not available
for any reason, the rate of interest publicly announced from time to time by
any
"money center" bank based in New York City selected by the Lender for the
purpose of quoting such rate, provided such commercial bank has a combined
capital and surplus and undivided profits of not less than $500,000,000. Each
change in the Prime Rate shall be effective from and including the date such
change is published.
"Purchase
Order"
means
an approved purchase order of the Borrower which shall specifically identify
the
Vehicles being financed pursuant to the terms hereof.
"Records
Location List"
has the
meaning set forth in Section 4.02(d).
"Related
Parties"
means,
with respect to any specified Person, such Person's Affiliates and the
respective directors, officers, employees, agents and advisors of such Person
and such Person's Affiliates.
"Rental
Company Contract"
means
an agreement between UHI, on the one hand, and a regional marketing and
administrative company Affiliate, on the other, substantially in the form
attached as Exhibit
J
hereto,
as the same may be updated from time to time by the Borrowers.
"Requirement
of Law"
means,
as to any Person, any law, statute, rule, treaty, regulation or determination
of
an arbitrator, court or other Governmental Authority, in each case applicable
to
or binding upon such Person or any of its properties or to which such Person
or
any of its properties may be bound or affected.
"Security
Agreement"
means
the Security and Collateral Agency Agreement, dated as of May 31, 2006, by
and
among the Borrowers, the Collateral Agent and the Lender.
"Security
Documents"
means
the Security Agreement, the Collection Account Control Agreement, the Collection
Sub-Account Control Agreement and each financing statement, Certificate of
Title, pledge, endorsement or other document or instrument delivered in
connection therewith.
"Servicer/Manager"
shall
mean UHI.
"Statutory
Reserve Rate"
means a
fraction (expressed as a decimal), the numerator of which is the number one
and
the denominator of which is the number one minus the aggregate of the maximum
reserve percentages (including any marginal, special, emergency or supplemental
reserves) expressed as a decimal established by the Board to which the Lender
(if subject to regulation by the Board) is subject with respect to the Adjusted
LIBO Rate, for eurocurrency funding (currently referred to as "Eurocurrency
Liabilities" in Regulation D of the
Board).
Such reserve percentages shall include those imposed pursuant to such Regulation
D. Loans shall be deemed to constitute eurocurrency funding and to be subject
to
such reserve requirements without benefit of or credit for proration, exemptions
or offsets that may be available from time to time to the Lender under such
Regulation D or any comparable regulation. The Statutory Reserve Rate shall
be
adjusted automatically on and as of the effective date of any change in any
reserve percentage.
"Structuring
Fee Letter"
means
the letter agreement, dated as of the Closing Date, by and between the Borrowers
and the Lender.
"Subsidiary"
means,
as to any Person, a corporation, partnership or other entity of which shares
of
stock or other ownership interests having ordinary voting power (other than
stock or such other ownership interests having such power only by reason of
the
happening of a contingency) to elect a majority of the board of directors or
other managers of such corporation, partnership or other entity are at the
time
owned, or the management of which is otherwise controlled, directly or
indirectly through one or more intermediaries, or both, by such
Person.
"Targeted
Principal"
means,
with respect to any Deposit Date, an amount equal to the sum, for each Monthly
Pool, of the difference, if any, between the outstanding principal amount of
the
Loan funding such Monthly Pool on such Deposit Date and the Borrowing Base
of
such Monthly Pool as of the related Payment Date, without giving effect to
any
amounts in the Sub-Account; provided,
however,
that
upon the occurrence of an Event of Default, the Targeted Principal shall equal
the principal balance of the Outstanding Loans.
"Taxes"
means
with respect to any Person any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority, excluding such taxes (including income or franchise taxes) as are
imposed on or measured by such Person’s net income.
"Termination
Date"
means
the earliest to occur of (i) the date which is 72 months from the most
recent Monthly Pool Funding or (ii) the date on which an Event of Default
occurs.
"Transactions"
means
the execution, delivery and performance by each Loan Party of the Loan Documents
to which it is to be a party, the borrowing of Loans and the use of the proceeds
thereof.
"UCC"
means,
unless otherwise stated, the Uniform Commercial Code as in effect in the State
of New York as of the date hereof.
"UHI"
means
U-Haul International, Inc., a Nevada corporation.
"Vehicle"
means a
motor vehicle owned by one of the Borrowers and constituting part of the
Borrowers’ fleet of rental assets.
"Vehicle
Collateral"
has the
meaning set forth in the Security Agreement.
"Vehicle
Cost"
means
the sum of (i) the acquisition cost to U-Haul Leasing & Sales Co. directly
incurred in the purchase and assembly of the Eligible Vehicle Collateral as
evidenced by one or more Purchase Orders submitted by Borrowers to Lender and
(ii) any other costs directly incurred by Borrowers in the assembly of Eligible
Vehicle Collateral; provided,
that if
a Vehicle is determined by the Servicer/Manager to be lost, stolen or destroyed
in accordance with its usual and customary servicing practices, then the Vehicle
Cost of such Vehicle shall be deemed to be zero; provided,
further,
that if
the date on which a Vehicle is allocated to a Monthly Pool is more than 60
days
after the date on which such Vehicle was completed, the Vehicle Cost of such
Vehicle shall be an amount mutually agreed upon by the Borrowers and
Lender.
"Vehicle
Facility Value"
means,
on any date of determination, for any Eligible Vehicle Collateral or any Monthly
Pool of Eligible Vehicle Collateral, the product of (i) the applicable
Advance Rate for such date and such Monthly Pool, and (ii) the Vehicle Cost
of such Vehicle or such Monthly Pool.
"Vehicle
Files"
means,
with respect to each Vehicle, (i) the original Certificate of Title (or an
original or certified copy of the application for a Certificate of Title) and
all related documents retained on file by the Servicer/Manager, in accordance
with its usual and customary business practices, evidencing the ownership of
the
Vehicle and, from and after the date required pursuant to clause (vi) of
Annex
I
hereto,
the Lien of the Collateral Agent; and (ii) any and all other documents that
either of the Servicer/Manager or the Borrowers shall retain on file, in
accordance with its usual and customary practices, relating to the Vehicle;
provided,
that to
the extent consistent with its usual and customary practices, any of the
foregoing items may, in lieu of a written document, be evidenced by a record
or
records consisting of information stored as a record on an electronic medium
which is reproducible in perceivable form.
"Vehicle
Schedule"
means
the schedule of Vehicles pledged to the Collateral Agent pursuant to the
Security Agreement, as the same may be updated from time to time by each
Borrowing Base Certificate provided by the Borrowers to the Collateral Agent
and
the Lender.
"Warranty"
means
any warranty with respect to any Vehicle or any component parts thereof, whether
from the dealer, seller or manufacturer of such Vehicle or any third party
warranty provider, relating to the merchantability of such Vehicle or parts
or
the life or performance of such Vehicle or parts and all available remedies
thereunder, including payment, replacement, repair, substitution or other
remedies.
"Withdrawal
Liability"
means
liability to a Multiemployer Plan as a result of a complete or partial
withdrawal from such Multiemployer Plan, as such terms are defined in Part
I of
Subtitle E of Title IV of ERISA.
Section
1.02. Terms
Generally.
The
definitions of terms herein shall apply equally to the singular and plural
forms
of the terms defined. Whenever the context may require, any pronoun shall
include the corresponding masculine, feminine and neuter forms. The words
"include", "includes" and "including" shall be deemed to be followed by the
phrase "without limitation." The word "will" shall be construed to have the
same
meaning and effect as
the
word
"shall." Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person’s successors and assigns, (c) the words "herein", "hereof" and
"hereunder", and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Annexes, Exhibits and
Schedules to, this Agreement and (e) the words "asset" and "property" shall
be
construed to have the same meaning and effect and to refer to any and all
tangible and intangible assets and properties, including cash, securities,
accounts, contract rights, licenses and intellectual property.
Section
1.03. 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 VIII
or Article IX, 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 8.01. If any change in accounting principles from those
used in the preparation of the audited financial statements referred to in
Section 8.01 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, Article VIII or Article IX, 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
AMERCO’s financial condition will 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 ended the applicable provisions of
this
Agreement.
ARTICLE
II
THE
LOANS
Section
2.01. Commitments.
Subject
to the terms and conditions set forth herein, the Lender agrees to make Loans
to
the Borrowers during the Drawdown Period from time to time during the term
of
this Agreement in an aggregate principal amount not exceeding the Facility
Commitment Amount. Each Loan will be related to a Monthly Pool and Loan Date
pursuant to this Agreement. No Loan shall be made (i) on a day other than a
Business Day, (ii) in an amount which would cause the Outstanding Loans to
exceed the aggregate amount of the Facility Commitment Amount as of the proposed
Loan Date, (iii) in an amount that would result in a Borrowing Base
Deficiency or (iv) if the conditions precedent set forth in
Section 7.02 have not been satisfied or waived. All Loans may be borrowed
and repaid in accordance with
the
terms
of this Agreement. All Loans shall be full recourse to the Borrowers, jointly
and severally.
Section
2.02. The
Note.
(a) The
Borrowers hereby, jointly and severally, unconditionally promise to repay all
Obligations outstanding hereunder when due. The obligation of the Borrowers
to
repay the Loans shall be evidenced by the Note. The Lender shall (i) record
on its books the date and amount of each Loan to the Borrowers hereunder and
(ii) prior to any transfer of the Note, endorse such information on the
schedule attached to the Note or any continuation thereof. The failure of the
Lender to make any such recordation shall not affect the obligations of the
Borrowers hereunder or under the Note.
(b) The
outstanding principal amount of the Loans shall be payable as set forth in
Article V.
The
Borrowers shall pay interest on the outstanding principal amount of each Loan
from the date each such Loan is made until the principal amount thereof is
paid
in full at the rates and pursuant to the terms set forth in Article V.
The
Borrowers shall pay the various fees and expenses set forth in, and pursuant
to
the terms of, Article V.
Section
2.03. Making
the Loans.
(a) To
request a Loan, the Borrowers shall deliver to the Lender a completed Borrowing
Request, together with a Borrowing Base Certificate calculating the Borrowing
Base for the Monthly Pool requested to be funded by such Loan and all other
Monthly Pools as of the prior Business Day not later than 3:00 p.m., New
York City time, three (3) Business Days before the date of the proposed Loan;
provided
that the
Borrowers may make not more than one (1) request for a Loan in any single
calendar month. Each such Borrowing Request shall be irrevocable and shall
be
delivered by telecopy to the Lender of a written Borrowing Request in a form
approved by the Lender and signed by the Borrowers.
(b) Each
requested Loan shall relate to a single Monthly Pool, and shall be in an initial
aggregate principal amount that is an integral multiple of $100,000 and not
less
than the lesser of (i) $25,000,000 and (ii) the difference between
(x) the Facility Commitment Amount and (y) the sum of the initial
principal balances for all Outstanding Loans; provided
that in
no event shall any loan be in an initial aggregate principal amount of less
than
$10,000,000.
(c) The
Lender shall make each Loan to be made by it hereunder on the proposed date
thereof by wire transfer of immediately available funds by 3:00 p.m., New York
City time, to an account of the Borrowers designated by the Borrowers in the
applicable Borrowing Request.
Section
2.04. Repayment
of Loans; Evidence of Debt.
(a) The
Borrowers, jointly and severally, hereby unconditionally promise to pay to
the
Lender the then unpaid principal amount of each Loan as provided in
Section 5.08. Any outstanding principal of, or accrued and unpaid interest
on any Loans shall be due and payable in full on the Payment Date occurring
in
the 72nd month following the month in which such Loan was made.
(b) The
Lender shall maintain in accordance with its usual practice an account or
accounts evidencing the indebtedness of the Borrowers to the Lender resulting
from each Loan, including the amounts of principal and interest payable and
paid
to the Lender from time to time hereunder.
(c) The
Lender shall maintain accounts in which it shall record (i) the amount of each
Loan made hereunder and the Interest Period applicable thereto, (ii) the amount
of any principal or interest due and payable or to become due and payable from
the Borrowers hereunder and (iii) the amount of any sum received by the Lender
hereunder.
(d) The
entries made in the accounts maintained pursuant to paragraph (b) or (c) of
this
Section shall be prima
facie
evidence
of the existence and amounts of the obligations recorded therein; provided
that the
failure of the Lender to maintain such accounts or any error therein shall
not
in any manner affect the obligation of the Borrowers to repay the Loans in
accordance with the terms of this Agreement.
ARTICLE
III
SECURITY
Section
3.01. Security
Interest.
Pursuant to and under the Security Agreement, the Borrowers shall (as and to
the
extent provided in the applicable Security Document) pledge and grant to the
Collateral Agent, as agent on behalf of the Lender, and its successors,
indorsees, transferees and assigns, as security for the prompt and complete
payment and performance when due (whether at the stated maturity, by
acceleration or otherwise) of all or a portion of the Obligations (as specified
in the applicable Security Document), a security interest in and assignment
of
all of the Borrowers’ right, title and interest in, to and under (but none of
its obligations under) the Collateral described in the applicable Security
Document, whether (with respect to amounts on deposit in the Collection Account
or the Collection Sub-Account, and any "Receivables" or "Proceeds" comprising
Collateral (each as defined in the Security Agreement) now existing or hereafter
arising by the Borrowers and wherever located, all proceeds thereof and any
other collateral described therein. The foregoing assignment does not constitute
and is not intended to result in a creation or an assumption by the Collateral
Agent or the Lender of any obligation of the Borrowers or any other Person
in
connection with any or all of the Collateral or under any agreement or
instrument relating thereto. Anything herein to the contrary notwithstanding,
(i) the Servicer/Manager shall perform its services, duties and
obligations with respect to the Collateral to the extent set forth in Article
IV
to the same extent as if this Agreement had not been executed, (ii) the
exercise by the Collateral Agent, of any of its rights in, to or under the
Collateral shall not release the Servicer/Manager from any of its duties or
obligations relating to the Collateral and (iii) neither the Collateral
Agent nor the Lenders shall have any obligations or liability under the
Collateral by reason of this Agreement, or be obligated to perform any of the
obligations or duties of the Servicer/Manager thereunder or to take any action
to collect or enforce any claim for payment assigned hereunder.
Section
3.02. Release
of Collateral.
(a) Except
as
otherwise set forth in the Security Agreement, the Liens created by the Security
Agreement in favor of the Collateral Agent with respect to the Collateral shall
terminate (i) with respect to any Collateral released pursuant to Section
3.02(c), upon receipt by the Collateral Agent and the Lender of the certificate
required by such Section, and (ii) with respect to all of the Collateral upon
(A) payment in full of the Loans and all other Obligations due hereunder
and (B) termination of the Facility.
(b) Upon
the
release of Collateral as set forth in Section 3.02(a), upon the request of,
and at the expense of the Borrowers, the Collateral Agent shall execute and
file
such releases or assignments of financing statements or, UCC termination
statements and other documents and instruments as may be reasonably requested
by
the Borrowers to effectuate release of the Collateral. The Collateral Agent
will
not have legal title to any part of the released Collateral on and will have
no
further interest in or rights with respect to such Collateral.
(c) If
no
Accelerated Amortization Event, Default or Event of Default has occurred and
is
continuing, the Borrowers may without the consent of the Collateral Agent or
the
Lender obtain a release of any Vehicle that is Collateral from the lien of
the
Security Agreement, including in connection with the sales or disposition of
such Vehicles; provided
that in
connection with any such release, the Borrowers provide to the Collateral Agent
and the Lender (i) prior written notice of such release, including an attached
Borrowing Base Certificate with a calculation of the Borrowing Base for each
affected Monthly Pool and attached Vehicle Schedule (pro forma as of the date
of
such release) not less than three (3) Business Days before the date of such
release, (ii) an officer’s certificate stating (A) no adverse selection was used
in selecting the Vehicles to be released, (B) after giving effect to sale,
no Borrowing Base Deficiency shall exist with respect to any Monthly Pool and
detailing, if necessary, a deposit of cash into the Collection Sub-Account
on
such date representing a prepayment of principal in an amount necessary to
cause
no Borrowing Base Deficiency to exist, and (C) no Accelerated Amortization
Event, Default or Event of Default exists on the Facility and (iii) if required,
evidence of the deposit of cash into the Collection Sub-Account.
ARTICLE
IV
SERVICING
AND MAINTENANCE
Section
4.01. Servicer/Manager;
Monthly Settlement Report.
(a) UHI
will
act as Servicer/Manager hereunder to provide administration and collection
services with respect to the Fleet Owner Cash Flows, and to provide management
and maintenance services with respect to the Vehicles constituting Collateral
in
accordance with its standard policies and procedures. UHI’s appointment as
Servicer/Manager shall hereby continue in full force and effect until UHI is
terminated as Servicer/Manager in writing by the Lender or until this Agreement
shall be terminated. UHI hereby makes to the Lender, each representation and
warranty made by it in its capacity as Servicer/Manager in each Loan Document,
and each such representation and warranty is hereby incorporated herein by
this
reference.
(b) No
termination of UHI as Servicer/Manager, and no appointment by the Lender of
a
successor Servicer/Manager, will become effective until the acceptance of
appointment
by the successor Servicer/Manager is delivered in writing to all parties hereto.
The Lender may terminate UHI as Servicer/Manager by written notice to all Loan
Parties if (i) an Accelerated Amortization Event occurs or is continuing or
(ii)
a Default with respect to the Servicer/Manager occurs or is
continuing.
(c) Not
later
than the second Business Day before the Payment Date of each month, the
Servicer/Manager shall deliver to the Lender a Monthly Settlement Report
(including a Borrowing Base Certificate for each Monthly Pool) relating to
the
preceding calendar month, which shall include Fleet Owner Cash Flow data from
the second preceding calendar month.
Section
4.02. Custody
of Vehicle Files.
(a) The
Collateral Agent and the Lender hereby revocably appoint UHI as Custodian of
the
Vehicle Files, and UHI hereby confirms its acceptance of such appointment,
to
act as the agent of the Collateral Agent and the Lender as Custodian of the
Vehicle Files. Upon any sale or disposition of a Vehicle, UHI shall deliver
the
related Certificate of Title to the Person purchasing or otherwise acquiring
the
related Vehicle.
(b) On
or
before any Loan Date, UHI shall provide an officer’s certificate to the
Collateral Agent and the Lender confirming (i) the number of Vehicle Files
received and shall confirm that it has received the Certificate of Title
pertaining to each Vehicle and (ii) that UHI has received all the documents
and instruments necessary for UHI to act as the agent of the Collateral Agent
and the Lender for the purposes set forth in this Section 4.02, including the
documents referred to herein. The Collateral Agent and the Lender are hereby
authorized to rely on such officer’s certificate.
(c) UHI
shall
perform its duties as Custodian of the Vehicle Files in accordance with its
usual and customary practices. UHI, in its capacity as Custodian, shall
(i) hold the Vehicle Files for the use and benefit of the Collateral Agent
and the Lender, and segregate such Vehicle Files from its other books, records
and files and (ii) maintain accurate and complete accounts, records (either
original execution documents or copies of such originally executed documents
shall be sufficient) and computer systems pertaining to each Vehicle File.
As
Custodian of the Vehicle Files, UHI shall conduct, or cause to be conducted,
periodic audits, which shall be performed not less frequently than UHI performs
such audits of vehicles similarly situated with UHI, of the Vehicle Files held
by it under this Agreement, and of the related accounts, records and computer
systems, in such a manner as shall enable the Collateral Agent and the Lender
to
identify all Vehicle Files and such related accounts, records and computer
systems and to verify, if the Collateral Agent or the Lender so elects, the
accuracy of UHI’s record-keeping. UHI shall promptly report to the Collateral
Agent and the Lender any material failure on its part to hold the Vehicle Files
and maintain its accounts, records and computer systems as herein provided
and
promptly take appropriate action to remedy any such failure.
(d) UHI
shall
maintain, or cause to be maintained, in accordance with its usual and customary
practices, a record of the location of the Vehicle Files relating to any Vehicle
and the related accounts, records, and computer systems maintained by UHI or
any
third party under sub-contract with UHI (such record is hereinafter referred
to
as a "Records
Location List").
UHI
shall maintain, or cause to be maintained, a separate Records Location List
for
the Collateral.
UHI
may,
with the consent of the Collateral Agent and the Lender, which consent may
be
withheld for any reason in the sole discretion of the Collateral Agent and
the
Lender, subcontract with third parties to perform the duties of Custodian of
the
Vehicle Files, in which case the name and address of the principal place of
business of such third party, and the location of the offices of such third
party where Vehicle Files are maintained, shall be specified on the applicable
Records Location List. UHI shall make available, on five (5) Business Days’
written notice, to the Collateral Agent and the Lender, or their respective
duly
authorized representatives, attorneys, or auditors, a copy of the Records
Location List with respect to the Collateral. UHI shall, at its own expense,
maintain at all times while acting as Custodian and keep in full force and
effect (i) fidelity insurance, (ii) theft of documents insurance, (iii)
fire insurance and (iv) forgery insurance. All such insurance shall be in
amounts, with standard coverage and subject to deductibles, as are customary
for
similar insurance typically maintained by Persons that act as custodian in
similar transactions.
(e) UHI’s
appointment as Custodian shall hereby continue in full force and effect until
UHI, as Servicer/Manager, is terminated as custodian in writing by the
Collateral Agent and the Lender or until this Agreement shall be terminated.
(f) As
Custodian, UHI shall: (i) maintain continuous custody of the Vehicle Files
in
secure and fire resistant facilities; (ii) with respect to the Vehicle Files,
(A) act exclusively as the Custodian for the benefit of the Collateral Agent
and
the Lender for so long as this Agreement is outstanding, and (B) hold all
Vehicle Files for the exclusive use (notwithstanding clauses (iii) and (iv)
below) and for the benefit of the Collateral Agent and the Lender; (iii) in
the
event that UHI is not the Custodian, to the extent UHI directs the Custodian
in
writing, deliver certain specified Vehicle Files to UHI to enable the
Servicer/Manager to service the Vehicle Files pursuant to this Agreement; (iv)
in the event that UHI is not the Custodian, upon one Business Day’s prior
written notice, permit the Servicer/Manager, the Collateral Agent and the Lender
to examine the Vehicle Files in the possession, or under the control, of the
Custodian; (v) hold the Vehicle Files held by it in accordance with this
Agreement on behalf of the Collateral Agent and the Lender, and maintain such
accurate and complete accounts, records and computer systems pertaining to
each
Vehicle File as shall enable the Servicer/Manager to comply with this Agreement;
(vi) in performing its duties as Servicer/Manager hereunder, act with reasonable
care, using that degree of skill and attention that UHI exercises with respect
to the files relating to all comparable Vehicles that UHI owns or services
or
holds for itself or others; (vii) (A) conduct, or cause to be conducted,
periodic physical inspections of the Vehicle Files held by it under this
Agreement and of the related accounts, records and computer systems, (B)
maintain the Vehicle Files in such a manner as shall enable the
Servicer/Manager, the Collateral Agent and the Lender, to verify the accuracy
of
UHI’s and the Servicer/Manager’s record keeping, (C) promptly report to the
Collateral Agent and the Lender, any material failure on its part to hold the
Vehicle Files and maintain its accounts, records and computer systems as herein
provided and (D) promptly take appropriate action to remedy any such failure;
(viii) maintain each Vehicle File at the address of UHI at 0000 X. Xxxxxxx
Xxxxxx, Xxxxxxx, XX 00000, or at such other location as shall be specified
by
the Collateral Agent or the Lender, by thirty (30) days’ prior written notice;
(ix) permit the Collateral Agent, the Lender, or their respective duly
authorized representatives, attorneys or auditors to inspect the Vehicle Files
and the related accounts, records and computer systems maintained by UHI as
such
Persons may reasonably request; and (x) upon written request from the Collateral
Agent or the Lender, release
as
soon
as practicable the Vehicle Files, or any or all documents in any Vehicle File,
to the Collateral Agent, the Lender, or any of their respective agents or
designees, as the case may be, at such place or places as Collateral Agent
or
the Lender may designate.
Section
4.03. Maintenance.
The
Servicer/Manager shall maintain and preserve each Vehicle comprising Collateral
in good working order and condition, ordinary wear and tear excepted, and comply
at all times with the usual and customary maintenance and repair practices
of
UHI and its Affiliates for vehicles of similar type and use.
ARTICLE
V
FEES,
INTEREST, ACCOUNTS, PAYMENTS, ETC.
Section
5.01. Fees
and Expenses.
The
Borrowers shall pay to the Lender, the following fully-earned and non-refundable
fees in immediately available funds as set forth herein and in accordance with
the terms of this Agreement:
(a) On
the
date hereof, a one-time facility structuring fee as defined in the Structuring
Fee Letter;
(b) On
any
date on which a prepayment of all or substantially all Outstanding Loans is
made
pursuant to Section 5.05 on or prior to a date which is forty-eight
calendar months from the last day of the Drawdown Period, a prepayment fee
in an
amount equal to the product of (i) the Outstanding Loans on such date, and
(ii) 1.00% (for the avoidance of doubt, no prepayment fee shall be owing
due to the payment of Targeted Principal resulting from the loss of or damage
to, a Vehicle in the ordinary course of Borrowers' business) together with
any
Hedge Breakage; and
(c) On
the
date hereof and thereafter promptly upon receipt of an invoice therefor, all
legal and due diligence expenses of the Lender incurred in connection with
this
Facility.
Section
5.02. Interest
on the Loans.
(a) Except
as
otherwise provided herein, each Loan shall bear interest on the outstanding
principal amount thereof and on any due but unpaid interest, for each day from
the date of the making of such Loan until the principal amount thereof and
all
interest thereon shall be paid in full. Interest on each Loan shall accrue
during each related Interest Period at a rate per annum equal to the applicable
Interest Rate for such Interest Period. The applicable Interest Rate for each
Loan not repaid as of any Payment Date will be determined by the Lender and
reset as of the first day of each successive Interest Period as determined
in
accordance with Section 5.02(e), and subject to Section 5.07.
(b) Except
as
otherwise provided herein, all accrued and unpaid interest on each Loan as
of
the end of each Interest Period shall be payable in arrears on the related
Payment Date during the term of this Agreement in accordance with
Section 5.04(a). All accrued and unpaid interest shall be due and payable
upon the occurrence of an Event of Default.
(c) If,
by
the terms of this Agreement or the Note, the Borrowers at any time is required
or obligated to pay interest at a rate in excess of the maximum rate permitted
by applicable law, the Interest Rate shall be deemed to be immediately reduced
to such maximum rate and the portion of all prior interest payments in excess
of
such maximum rate shall be applied and shall be deemed to have been payments
made in reduction of the principal amount due hereunder and under the
Note.
(d) All
amounts of interest due hereunder shall be computed on the basis of the actual
number of days elapsed in a year of 360 days, and in each case shall be
payable for the actual number of days elapsed (including the first day but
excluding the last day).
(e) The
Adjusted LIBO Rate will be determined by the Lender and communicated to the
Borrowers on each LIBOR Determination Date, and each such determination shall
be
conclusive absent manifest error.
Section
5.03. Collections
and Cash Flows.
(a) UHI
shall
have established and shall maintain the Collection Account and the Concentration
Account. The Borrowers shall not change any Concentration Account or Collection
Account, or open any new Concentration Account or Collection Account, into
which
any revenues related to the Collateral may be deposited without the prior
written consent of the Lender; provided,
that
any such consent, with respect to any new or changed Concentration Account,
shall not be unreasonably withheld by the Lender.
(b) The
Servicer/Manager shall deposit or cause to be deposited all gross collections,
receipts and proceeds on all Collateral into the Concentration Account. Not
later than 3:00 p.m., New York City time on each Fleet Owner Cash Flow
Determination Date, the Servicer/Manager shall deposit or cause to be deposited
into the Collection Account in immediately available funds, an amount equal
to
Fleet Owner Cash Flows and Hedge payments for the immediately preceding month,
plus any other amounts that otherwise are or shall be part of the Collateral
(to
the extent not already deposited in full pursuant to Section 5.03(d), below).
So
long as no Accelerated Amortization Event, Default, Event of Default or
Collection Sub-Account Failure shall have then occurred and be continuing,
the
funds deposited in the Collection Account pursuant to this Section 5.03(b)
may
be transferred on the same Business Day at the direction of UHI. Neither the
Servicer/Manager nor any Borrower shall instruct the Concentration Account
Bank
in a manner inconsistent with this Section 5.03(b) or the Collection Account
Control Agreement without the prior written consent of the Lender.
(c) UHI
shall
deposit into the Collection Sub-Account, (i) not later than each Deposit
Date, the Collection Sub-Account Deposit for such month and (ii) not later
than each Loan Date, the Collection Sub-Account Deposit for such Loan Date
(or,
in each case, an amount sufficient so that after such deposit, together with
unrestricted funds already on deposit in the Collection Sub-Account, the total
amount of unrestricted funds on deposit in the Collection Sub-Account would
not
be less than the Collection Sub-Account Deposit). The Collateral Agent shall,
at
the direction of the Lender, be entitled and is hereby authorized and directed
by the Servicer/Manager and the Borrowers, to withdraw any amounts on deposit
in
the Collection Sub-Account on the next subsequent Payment Date and apply such
amounts to the payment of
principal,
interest and other Obligations due on such Payment Date in accordance with
the
directions provided by the Lender. So long as no Accelerated Amortization Event,
Default, Event of Default, Collection Sub-Account Failure or Borrowing Base
Deficiency shall have then occurred and be continuing, any excess funds in
the
Collection Sub-Account after such Payment Date shall be transferred on the
same
Business Day to the Collection Account.
(d) Upon
an
Event of Default or a Collection Sub-Account Failure, not later than 3:00 p.m.,
New York City time on each Business Day, the Servicer/Manager shall deposit
or
cause to be deposited into the Collection Account from funds on deposit in
the
Concentration Account, an amount equal to the Daily Collection Account Deposit
Amount. In addition, upon an Event of Default or a Collection Sub-Account
Failure, the Collateral Agent, may exercise its rights under the Collection
Account Control Agreement, and thereafter, on any Payment Date (or at such
times
as the Collateral Agent may choose in its sole discretion) any amounts in the
Collection Account and Collection Sub-Account shall be applied in the following
order:
|
(i)
|
first,
to the payment of all interest, fees and expenses due and payable
under
this Agreement;
|
|
(ii)
|
second,
to the payment of amounts owing to the Hedge
Provider;
|
|
(iii)
|
third,
to the payment of Targeted Principal payable under this
Agreement;
|
|
(iv)
|
fourth,
to the payment in full of all other Obligations then due and payable
under
this Agreement; and
|
|
(v)
|
fifth,
to the Collection Sub-Account to be held until the next Payment Date
and
applied in accordance with this Section
5.03.
|
Section
5.04. Payments
to be Made.
(a) The
Borrowers shall make each payment (including principal of or interest on any
Loan or other amounts) or deposit hereunder and under any other Loan Document
not later than 3:00 p.m., New York City time, on each Deposit Date or Payment
Date, as applicable, in immediately available funds, without setoff, defense
or
counterclaim (i) in the case of interest and Targeted Principal, on the Deposit
Date immediately preceding the Payment Date that relates to the Interest Period
for which such amount is owing, and (ii) in each other case on the date on
which
such amount is due. Each such payment shall be made to the Lender at such place
as may be designated from time to time by the Lender in writing to the
Borrowers. If any deposit or payment hereunder or under the Loans becomes due
and payable on a day other than a Business Day, such amount shall be due and
payable on the next succeeding Business Day. If the date for any deposit,
payment or prepayment hereunder is extended by operation of law or otherwise,
interest with respect thereto shall be payable at the then-applicable Interest
Rate during such extension.
(b) Except
as
otherwise expressly provided herein, whenever any payment (including principal
of or interest on any Loan or other amounts) hereunder or under any other Loan
Document shall become due, or otherwise would occur, on a day that is not a
Business
Day,
such
payment may be made on the next succeeding Business Day, and such extension
of
time shall in such case be included in the computation of interest, if
applicable.
(c) If
on any
Deposit Date, all or any portion of the amounts required to be deposited in
the
Sub-Account pursuant to Section 5.03(b) are not deposited by or on behalf of
the
Borrowers by the time specified in the first sentence of Section 5.04(a), then
the Collateral Agent shall immediately have the right to take control of the
Collection Account in accordance with the Collection Account Control Agreement.
Such remedy shall be in addition to and not exclusive of any other remedies
provided for under this Agreement.
Section
5.05. Optional
Prepayments.
The
Borrowers may prepay the Loans on any Payment Date, in whole or in part, subject
to the requirements of this Section without penalty or premium (except as
provided in Section 5.01(b)), on five days’ prior written notice to the Lender,
provided that (i) the principal amount prepaid is at least $1,000,000
(unless otherwise agreed to in writing by the Lender), (ii) Borrowers shall
not
prepay more than $5,000,000 in the aggregate in any twelve (12) month period
(other than a payment of all obligations, in accordance with Section 5.01(b)),
(iii) the Borrowers pay to the Lender, on the date of prepayment, accrued
unpaid interest on the amount so prepaid and (iv) Borrowers shall pay any Hedge
Breakage. The Borrowers may notify the Lender in writing that it has elected
to
terminate the Facility in connection with the prepayment in full of the Loans
and all other outstanding Obligations. Upon such prepayment in full, together
with payment in full the fee described in Section 5.01(b), and the termination
of the Facility, the Lender’s interest in the Collateral shall be released in
accordance with Section 3.02 and the Commitment of the Lender hereunder
shall terminate.
Section
5.06. [Reserved].
Section
5.07. Illegality;
Substituted Interest Rate, etc.
Notwithstanding any other provision hereof, if (i) any Requirement of Law
or any change therein or in the interpretation or application thereof shall
make
it unlawful for the Lender to make or maintain any Loans at the Interest Rate
or
(ii) the Lender shall have determined (which determination shall be
conclusive and binding upon the Borrowers) that, by reason of circumstances
affecting the LIBOR interbank market, adequate and reasonable means do not
exist
for ascertaining the Interest Rate, then (a) the obligation of the Lender
to make or maintain Loans at the Interest Rate shall be suspended and the Lender
shall promptly notify the Borrowers thereof (by telephone confirmed in writing)
and (b) each Loan then outstanding, if any, shall, from and including the
commencement of the next Interest Period or at such earlier date as may be
required by law, until payment in full thereof, bear interest at the rate per
annum equal to the greater of the Prime Rate plus the Applicable Margin or
the
Interest Rate in effect on the date immediately preceding the date any event
described in clause (i) or (ii) occurred. If subsequent to such suspension
of the obligation of the Lenders to make or maintain the Loans at the Interest
Rate, the circumstances described in clause (i) or (ii) of the preceding
sentence, as applicable, no longer exist, the Lender shall so notify the
Borrowers, and the obligation of the Lender to do so shall be reinstated
effective as of the date the circumstances described in clause (i) or (ii),
as applicable, no longer exist.
Section
5.08. Payments
of Principal; Mandatory Prepayments.
(a) On
each
Payment Date, the Borrowers shall pay to the Lender, an amount equal to the
Targeted Principal, if any, for such Payment Date.
(b) If
any
Monthly Settlement Report reports that a Borrowing Base Deficiency exists as
of
such date with respect to any Monthly Pool, then the Borrowers shall no later
than the next Business Day following delivery of such Monthly Settlement Report
pay to the Lender an amount equal to the Borrowing Base Deficiency for such
Monthly Pool on such date and any Hedge Breakage. If an item of Collateral
included in the Borrowing Base and for which a Loan was advanced fails at any
time to be acceptable to the Lender under the definition of Eligible Vehicle
Collateral, as reasonably determined by the Lender in its sole discretion,
the
Vehicle Facility Value of such Collateral as of such date of determination
will
be deemed to be zero.
(c) Upon
discovery by any of the Loan Parties of a breach of any of the representations
and warranties set forth in Section 6.14, the party discovering such breach
shall give prompt written notice to the Borrowers and to the other parties.
If
such breach would, in and of itself, result in a Borrowing Base Deficiency
with
respect to any Monthly Pool, which Borrowing Base Deficiency is not cured by
the
next Business Day after the Borrowers discover or receive notice of such breach,
the Borrowers shall, unless such breach shall have been cured in all material
respects, remit to the Lender an amount equal to the amount of such Borrowing
Base Deficiency, in the manner set forth in Section 5.08. The foregoing
obligation shall apply to all representations and warranties of the Borrowers
contained in Section 6.14 whether or not the Borrowers have knowledge of
the breach at the time of the breach or at the time the representations and
warranties were made. The Lender shall not have any duty to conduct an
affirmative investigation as to the occurrence of any breach of any
representations and warranties of the Borrowers set forth in Section 6.14
that would require the Borrowers to remit any mandatory repayment pursuant
to
this Section.
Section
5.09. Increased
Costs.
(a) If
any
Change in Law shall: (i) impose, modify or deem applicable any reserve, special
deposit or similar requirement against assets of, deposits with or for the
account of, or credit extended by, the Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate); or (ii) impose on the Lender
or the London interbank market any other condition affecting this Agreement
or
Loans made by the Lender; and the result of any of the foregoing shall be to
increase the cost to the Lender of making or maintaining any Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of
any
sum received or receivable by the Lender hereunder (whether of principal,
interest or otherwise), then the Borrowers shall, jointly and severally, pay
to
the Lender such additional amount or amounts as will compensate the Lender
for
such additional costs incurred or reduction suffered.
(b) If
the
Lender determines that any Change in Law regarding capital requirements has
or
would have the effect of reducing the rate of return on the Lender’s capital or
on the capital of the Lender’s holding company, as a consequence of this
Agreement or the Loans made by the Lender to a level below that which the Lender
or the Lender’s holding company could have achieved but for such Change in Law
(taking into consideration the Lender’s policies and the policies of the
Lender’s holding company with respect to capital
adequacy),
then from time to time the Borrowers shall, jointly and severally, pay to the
Lender such additional amount or amounts as will compensate the Lender or the
Lender’s holding company for any such reduction suffered.
(c) A
certificate of the Lender setting forth the amount or amounts necessary to
compensate the Lender or its holding company, as the case may be, as specified
in paragraph (a) or (b) of this Section and the basis therefor shall be
delivered to the Borrowers by the Lender and shall be conclusive absent manifest
error. The Borrowers shall pay the Lender the amount shown as due on any such
certificate within 30 days after receipt thereof.
(d) Failure
or delay on the part of the Lender to demand compensation pursuant to this
Section shall not constitute a waiver of the Lender’s right to demand such
compensation; provided
that the
Borrowers shall not be required to compensate the Lender pursuant to this
Section for any increased costs or reductions incurred more than 90 days prior
to the date that the Lender notifies the Borrowers of the Change in Law giving
rise to such increased costs or reductions and of the Lender’s intention to
claim compensation therefor; provided
further
that, if
the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 90-day period referred to above shall be extended to
include the period of retroactive effect thereof.
Section
5.10. Taxes.
(a) Any
and
all payments by or on account of any obligation of the Borrowers hereunder
or
under any other Loan Document shall be made free and clear of and without
deduction for any Taxes; provided
that if
the Borrowers shall be required to deduct any Taxes from such payments, then
(i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section) the Lender receives an amount equal to the sum it would
have
received had no such deductions been made, (ii) the Borrowers shall make such
deductions and (iii) the Borrowers shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) The
Borrowers shall, jointly and severally, indemnify the Lender, within 10 days
after written demand therefor, for the full amount of any Taxes paid by the
Lender on or with respect to any payment by or on account of any obligation
of
the Borrowers hereunder or under any other Loan Document (including Taxes
imposed or asserted on or attributable to amounts payable under this Section)
and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Taxes were correctly or legally imposed
or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment delivered to the Borrowers by the Lender, shall be conclusive
absent manifest error.
(c) As
soon
as practicable after any payment of Taxes by the Borrowers to a Governmental
Authority, the Borrowers shall deliver to the Lender the original or a certified
copy of a receipt issued by such Governmental Authority evidencing such payment,
a copy of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Lender.
(d) If
the
Lender determines, in its sole discretion, that it has received a refund of
any
Taxes as to which it has been indemnified by the Borrowers pursuant to this
Section 5.10, it shall pay over such refund to the Borrowers (but only to the
extent of indemnity payments made by the Borrowers under this Section 5.10
with
respect to the Taxes giving rise to such refund), net of all reasonable
out-of-pocket expenses of the Lender and without interest (other than any
interest paid by the relevant Governmental Authority with respect to such
refund); provided,
however,
that
the Borrowers, upon the request of the Lender, agrees to repay the amount paid
over to the Borrowers (plus any penalties, interest or other charges imposed
by
the relevant Governmental Authority) to the Lender in the event the Lender
is
required to repay such refund to such Governmental Authority. Nothing contained
in this Section 5.10 shall require the Lender to make available its tax returns
(or any other information relating to its Taxes which it deems confidential)
to
the Borrowers or any other Person.
(e) Without
prejudice to the survival of any other agreement of the Borrowers hereunder,
the
agreements and obligations of the Borrowers contained in this Section 5.10
shall survive the termination of this Agreement.
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES
Each
of
the Loan Parties represents and warrants to the Collateral Agent and the Lender
as of the Closing Date and on each Loan Date that:
Section
6.01. Organization;
Powers.
Each of
the Loan Parties is duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation, has all requisite corporate
power
and authority to carry on its business as now conducted and, except where the
failure to do so, individually or in the aggregate, could not reasonably be
expected to result in a Material Adverse Effect, is qualified to do business
in,
and is in good standing in, every jurisdiction where such qualification is
required.
Section
6.02. Authorization;
Enforceability.
The
Transactions to be entered into by each Loan Party are within such Loan Party’s
corporate, as the case may be, powers. The Transactions to be entered into
by
each Loan Party have been duly authorized by all necessary corporate and, if
required, stockholder action. This Agreement has been duly executed and
delivered by each Loan Party and constitutes, and each other Loan Document
to
which any Loan Party is to be a party, when executed and delivered by such
Loan
Party, will constitute, a legal, valid and binding obligation of such Loan
Party
(as the case may be), enforceable in accordance with its terms, subject to
applicable bankruptcy, insolvency, reorganization, moratorium or other laws
affecting creditors’ rights generally and subject to general principles of
equity, regardless of whether considered in a proceeding in equity or at
law.
Section
6.03. Governmental
Approvals; No Conflicts.
The
Transactions (a) do not require any consent or approval of, registration or
filing with, or any other action by, any Governmental Authority, except such
as
have been obtained or made and are in full force and effect and except filings
necessary to perfect Liens created under the Security Documents, (b) will
not violate any applicable law or regulation or the charter, by-laws or other
organizational
documents of any Loan Party or any order of any Governmental Authority,
(c) will not violate or result in a default under any indenture, agreement
or other instrument evidencing or governing any material indebtedness or any
other material indenture, agreement or other instrument binding upon any Loan
Party or its assets, or give rise to a right thereunder to require any payment
to be made by any Loan Party, and (d) will not result in the creation or
imposition of any Lien on any asset of any Loan Party, except Liens created
under the Security Documents.
Section
6.04. Financial
Condition; No Material Adverse Change.
(a) UHI
has
heretofore furnished to the Lender the consolidated balance sheet and statements
of income, equity and cash flows of AMERCO as of and for the fiscal year ended
March 31, 2005, and the consolidated balance sheet and statements of income,
stockholders equity and cash flows of AMERCO as of and for the fiscal quarter
ended December 31, 2005, each certified by a Financial Officer of UHI or AMERCO.
Such financial statements present fairly, in all material respects, the
financial position and results of operations and cash flows of AMERCO as of
such
date and for such period in accordance with GAAP, subject to year end audit
adjustments. As of the date hereof, no Loan Party has any liabilities in excess
of $25,000,000 except as disclosed on Schedule 6.04.
(b) Since
December 31, 2005, there has been no Material Adverse Change.
Section
6.05. Properties;
Liens and Licenses.
(a) Each
of
the Loan Parties has good title to, or valid leasehold interests in, or licenses
of or easements for all the real and personal property material to its business,
except for minor defects in title that do not interfere with its ability to
conduct its business as currently conducted or to utilize such properties for
their intended purposes, and none of such property is subject to any Lien other
than Permitted Encumbrances.
(b) Each
of
the Loan Parties owns, or is licensed to use, all trademarks, trade names,
copyrights, patents and other intellectual property material to its business,
and the use thereof by the Loan Parties does not infringe upon the rights of
any
other Person, except for any such infringements that, individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
(c) Each
of
the Loan Parties has all licenses and permits that are material to the business
of such Loan Party. Each license or permit that is material to the business
of
the Loan Parties, is valid and in full force and effect, and each of the Loan
Parties is in compliance in all material respects with the terms and conditions
thereof.
Section
6.06. Litigation
Matters.
There
are no actions, suits or proceedings by or before any arbitrator or Governmental
Authority pending against or, to the knowledge of any Loan Party, threatened
against or affecting the Loan Parties (i) as to which there is a reasonable
possibility of an adverse determination and that, if adversely determined,
could
reasonably be expected, individually or in the aggregate, to result in a
Material Adverse Effect or (ii) that involve any of the Loan Documents or the
Transactions.
Section
6.07. Compliance
with Laws and Agreements.
Each of
the Loan Parties is in compliance with all laws, regulations and orders of
any
Governmental Authority applicable to it or its property and all indentures,
agreements and other instruments binding upon it or its property, except where
the failure to do so, individually or in the aggregate, could not reasonably
be
expected to result in a Material Adverse Effect. No Default has occurred and
is
continuing.
Section
6.08. Investment
and Holding Company Status.
None of
the Loan Parties is (a) an "investment company" as defined in, or subject to
regulation under, the Investment Company Act of 1940 or (b) a "holding company"
as defined in, or subject to regulation under, the Public Utility Holding
Company Act of 1935.
Section
6.09. Taxes.
Each of
the Loan Parties has timely filed or caused to be filed all Tax returns and
reports required to have been filed and has paid or caused to be paid all Taxes
required to have been paid by it, except (a) Taxes that are being contested
in
good faith by appropriate proceedings and for which the applicable Loan Party
has set aside on its books adequate reserves or (b) the filing of local Tax
returns and reports to the extent that the failure to do so, individually or
in
the aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
Section
6.10. ERISA.
Each
Plan has been administered in compliance with all applicable laws except for
such instances of noncompliance as have not resulted in and could not reasonably
be expected to result in a Material Adverse Effect. No ERISA Event has occurred
or is reasonably expected to occur that, when taken together with all other
such
ERISA Events for which liability is reasonably expected to occur, could
reasonably be expected to result in a Material Adverse Effect. The present
value
of all accumulated benefit obligations under each Plan (based on the assumptions
used for purposes of Statement of Financial Accounting Standards No. 87) did
not, as of the date of the most recent financial statements of AMERCO reflecting
such amounts, exceed the fair market value of the assets of such Plan, and
the
present value of all accumulated benefit obligations of all underfunded Plans
(based on the assumptions used for purposes of Statement of Financial Accounting
Standards No. 87) did not, as of the date of the most recent financial
statements of AMERCO reflecting such amounts, exceed the fair market value
of
the assets of all such underfunded Plans.
Section
6.11. Disclosure.
Each of
the Loan Parties has disclosed to the Lender all agreements, instruments and
corporate or other restrictions to which any of the Loan Parties is subject
that, individually or in the aggregate, could reasonably be expected to result
in a Material Adverse Effect. None of the reports, financial statements,
certificates or other information furnished by or on behalf of any Loan Party
to
the Lender in connection with the negotiation of this Agreement or any other
Loan Document or delivered hereunder or thereunder, including any Monthly
Settlement Report, contains any material misstatement of fact or omits to state
any material fact necessary to make the statements therein, taken as a whole,
in
the light of the circumstances under which they were made, not misleading;
provided
that,
with respect to projected financial information, each of the Loan Parties
represents only that such information was prepared in good faith based upon
assumptions believed to be reasonable at the time.
Section
6.12. The
Collateral.
The
Collateral is owned by the Person granting each security interest in such
Collateral under any Security Document, free and clear of any Lien or other
adverse claim except as contemplated under the Loan Documents. Each of the
representations and warranties of the Loan Parties contained herein are true
and
correct. No agreements have been executed and delivered pursuant to which a
Person pledges or grants, or purports to pledge or grant, any Lien, other than
Permitted Encumbrances, on the Collateral to any Person other than the
Collateral Agent.
With
respect to the Borrowers, the Security Agreement is effective to create in
favor
of the Collateral Agent, a legal, valid and enforceable security interest in
the
Collateral and, upon the filing of the necessary financing statements in the
offices specified in the Security Agreement, or the filing of liens on Vehicles
in the offices specified in the Security Agreement, as applicable, the interest
of the Collateral Agent in the Collateral will be perfected under Article 9
of the UCC as in effect on the date hereof in the applicable jurisdiction or
the
applicable state motor vehicle law, as applicable, prior to and enforceable
against all creditors of and purchasers from the Borrowers and all other Persons
whatsoever (other than the Collateral Agent and its successors and assigns).
On
or prior to the date each Loan is made hereunder and each recomputation of
the
Borrowing Base, all financing statements and other documents required to be
recorded or filed in order to perfect and protect the Collateral Agent’s
interests in the Collateral against all creditors of and purchasers from the
Borrowers and all other Persons whatsoever will have been duly filed in each
filing office necessary for such purpose and all filing fees and taxes, if
any,
payable in connection with such filings shall have been paid in
full.
Section
6.13. Liens
on the Collateral.
Effective immediately upon the Closing Date, and on each Loan Date, (a) no
effective financing statement or other similar instrument covering any
Collateral is on file in any recording office, and (b) no Lien covering any
Vehicle constituting Collateral is noted on the Certificate of Title of such
Vehicle or on file in any title recording office, in each case other than in
favor of the Collateral Agent.
Section
6.14. Eligible
Vehicle Collateral.
As of
the date of each Borrowing Request, all Vehicles set forth in the Vehicle
Schedule to be delivered with each Borrowing Request are Eligible Vehicle
Collateral.
Section
6.15. Insurance.
Schedule 6.15 sets forth a description of all insurance maintained by or on
behalf of the Loan Parties as of the date of this Agreement including all
policies covering the Collateral. As of the date of this Agreement, all premiums
in respect of such insurance have been paid.
Section
6.16. Labor
Matters.
As of
the date hereof, there are no strikes, lockouts or slowdowns against any Loan
Party pending or, to the knowledge of any of the Loan Parties, threatened.
The
hours worked by and payments made to employees of the Loan Parties have not
been
in violation of the Fair Labor Standards Act or any other applicable Federal,
state, local or foreign law dealing with such matters. All payments due from
any
Loan Party, or for which any claim may be made against any Loan Party, on
account of wages and employee health and welfare insurance and other benefits,
have been paid or accrued as a liability on the books of the applicable Loan
Party. The consummation of the Transactions will
not
give
rise to any right of termination or right of renegotiation on the part of any
union under any collective bargaining agreement to which any Loan Party is
bound.
Section
6.17. Security
Documents.
The
representations and warranties in each Security Document are true and
correct.
Section
6.18. Margin
Regulations.
No
proceeds of any Loan will be used, directly or indirectly, by the Loan Parties
for the purpose of purchasing or carrying any Margin Stock or for the purpose
of
reducing or retiring any Indebtedness which was originally incurred to purchase
or carry Margin Stock. No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately,
for
any purpose that entails a violation of, or that is inconsistent with, the
provisions of the Regulations of the Board, including Regulation T, U or
X.
ARTICLE
VII
CONDITIONS
Section
7.01. Effective
Date.
The
obligations of the Lender to make the initial Loan hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 12.02):
(a) The
Lender shall have received from each party hereto either (i) a counterpart
of
this Agreement signed on behalf of such party or (ii) written evidence
satisfactory to the Lender (which may include telecopy transmission of a signed
signature page of this Agreement) that such party has signed a counterpart
of
this Agreement.
(b) The
Lender shall have received a favorable written opinion of counsel to the Loan
Parties addressed to the Lender the Collateral Agent and the Hedge Provider,
dated the Closing Date and addressing such matters relating to the Loan Parties,
the Loan Documents and the Transactions as the Lender shall reasonably request,
(in each case in form and substance reasonably satisfactory to the Lender)
including, without limitation, opinions of counsel regarding general corporate
matters, due authorization and execution, delivery, no conflict of laws or
contracts and no material litigation with respect to each Loan Party.
Additionally, Lender shall have received a favorable written opinion of outside
counsel to the Loan Parties addressed to the Lender, the Collateral Agent and
the Hedge Provider, dated the Closing Date and addressing matters as to
enforceability under New York law as well as the creation, perfection and
priority of security interests in the Collateral (in each case in form and
substance reasonably satisfactory to the Lender).
(c) The
Lender shall have received such documents and certificates as the Lender or
its
counsel may reasonably request relating to the organization, existence and
good
standing of each Loan Party, the authorization of the Transactions and
incumbency of signatories to the Loan Documents and any other legal matters
relating to each Loan Party, the Loan Documents or the Transactions, all in
form
and substance satisfactory to the Lender and its counsel.
(d) The
Lender shall have received a certificate, dated the Closing Date and signed
by
the Chief Executive Officer, President, a Vice President or a Financial Officer
of each Loan Party, confirming compliance with the conditions set forth in
paragraphs (a), (b) and (c) of Section 7.02 and that no Material Adverse Change
has occurred which has not been disclosed to the Lender.
(e) The
Lender shall be satisfied that all fees and other amounts due and payable to
them hereunder on or prior to the Effective Date, including, to the extent
invoiced, reimbursement or payment of all legal fees and expenses and all other
expenses required to be reimbursed or paid by the Loan Parties hereunder or
under any other Loan Document, have been paid or will be paid on the Effective
Date.
(f) The
Lender shall be reasonably satisfied with the corporate and legal structure
and
capitalization of each Loan Party, including the charter and by-laws of each
Loan Party and each agreement or instrument evidencing material
Indebtedness.
(g) The
Lender shall have received counterparts of the Guarantee Agreement signed on
behalf of each Loan Party thereto.
(h) The
Collateral Agent and the Lender shall have received (i) counterparts of the
Security Documents (other than Certificates of Title) signed on behalf of the
Loan Party that is a party thereto and (ii) evidence satisfactory to the Lender
that all documents and instruments, including UCC financing statements and
Certificates of Title with respect to all Vehicles constituting Collateral,
required by law or reasonably requested by the Lender to be filed, registered
or
recorded to create or perfect the Liens intended to be created under the
Security Documents, and to protect the ownership interests of the Borrowers
in
(and the Liens of the Security Documents on) all Collateral, have been so filed,
registered or recorded.
(i) The
Lender shall have received (i) the results of a search (at Borrower's expense)
of the UCC (or equivalent) filings made with respect to the Borrowers in the
jurisdictions contemplated by the Security Agreement as of a date reasonably
close to the Closing Date and otherwise acceptable to the Lender in its sole
reasonable discretion and (ii) copies of the financing statements (or similar
documents) disclosed by such search and evidence reasonably satisfactory to
the
Lender that the Liens indicated by such financing statements (or similar
documents) are either Permitted Encumbrances or have been released.
(j) The
Lender shall have received evidence satisfactory to it that the insurance
required to be maintained by the Borrowers pursuant to Section 8.07 is in
effect, and such insurance policies shall be in form, substance and insured
amount satisfactory to the Lender.
(k) The
Lender shall have received an original Note, executed and delivered by the
Borrowers.
(l) The
Lender (i) shall have been given access to the management, records, books of
account, contracts and properties of the Loan Parties and shall have received
such financial, business and other information regarding the Loan Parties as
the
Lender shall have
reasonably
requested and (ii) shall have completed their due diligence review of the Loan
Parties and shall be reasonably satisfied with the results of such
review.
(m) The
Borrowers shall have entered into one or more forward-starting swap agreements
to limit Borrowers’ interest rate exposure (each, a "Hedge")
and
shall have assigned the Borrowers' rights to receive payments under such Hedge
to Lender. Each such Hedge shall have been entered into with the Hedge
Provider.
The
Lender shall notify the Borrowers of the Effective Date, and such notice shall
be conclusive and binding. Notwithstanding the foregoing, the obligations of
the
Lender to make Loans hereunder shall not become effective unless each of the
foregoing conditions is satisfied (or waived pursuant to Section 12.02) at
or
prior to 3:00 p.m., New York City time, on June 15, 2006 (and, in the event
such
conditions are not so satisfied or waived, the Facility shall terminate at
such
time).
Section
7.02. Each
Loan.
The
obligation of the Lender to make a Loan is subject to the satisfaction of the
following conditions:
(a) At
the
time of and immediately after giving effect to such Loan, the representations
and warranties of the Loan Parties set forth in this Agreement and the other
Loan Documents shall be true and correct in all respects on and as of the date
of such Loan (or, in the case of any representation and warranty that expressly
relates to an earlier date, on and as of such earlier date).
(b) At
the
time of and immediately after giving effect to such Loan, no Accelerated
Amortization Event, Default, Event of Default, Borrowing Base Deficiency or
Collection Sub-Account Failure shall have occurred and be
continuing.
(c) No
Material Adverse Change shall have occurred.
(d) The
Borrowers shall have delivered to the Lender (i) a Borrowing Request and a
Borrowing Base Certificate, for each Monthly Period, calculated as of a date
not
more recent than three (3) Business Days prior to the date of the related
Borrowing Request, in connection with such Loan showing no Borrowing Base
Deficiency; (ii) a certificate of the type required by Section 4.02(b), if
applicable and (iii) one or more Purchase Orders identifying the Vehicles in
such Monthly Pool and such other information necessary to determine Vehicle
Cost, each in a form satisfactory to Lender.
Each
Loan
shall be deemed to constitute a representation and warranty by the Borrowers
on
the date thereof as to the matters specified in paragraphs (a), (b) and (c)
of
this Section 7.02.
ARTICLE
VIII
AFFIRMATIVE
COVENANTS
Until
the
Commitments have expired or been terminated and the principal of and interest
on
each Loan and all fees and other amounts payable hereunder shall have been
paid
in full, each of the Loan Parties covenants and agrees with the Collateral
Agent
and the Lender that:
Section
8.01. Financial
Statements and Other Information.
The
Loan Parties shall furnish to the Lender:
(a) within
90
days after the end of each fiscal year of AMERCO, the audited consolidated
balance sheet of AMERCO (or, if any of the Loan Parties shall cease to be
consolidated with AMERCO for financial accounting purposes, of each such Loan
Party, as applicable) and its consolidated subsidiaries and related statements
of operations, stockholders’ equity and cash flows as of the end of and for such
year, setting forth in each case in comparative form the figures for the
previous fiscal year, all reported on by BDO Xxxxxxx, LLP or other independent
public accountants of recognized national standing (without a "going concern"
or
like qualification or exception and without any qualification or exception
as to
the scope of such audit) to the effect that such financial statements present
fairly in all material respects the financial condition and results of
operations of AMERCO (or, if any of the Loan Parties shall cease to be
consolidated with AMERCO for financial accounting purposes, of each such Loan
Party, as applicable) and its consolidated subsidiaries on a consolidated basis
in accordance with GAAP consistently applied;
(b) within
45
days after the end of each of the first three fiscal quarters of each fiscal
year of AMERCO, the consolidated balance sheet of AMERCO (or, if any of the
Loan
Parties shall cease to be consolidated with AMERCO for financial accounting
purposes, of each such Loan Party, as applicable) and related statements of
operations and cash flows as of the end of and for such fiscal quarter and
the
then elapsed portion of the fiscal year, setting forth in each case in
comparative form the figures for the corresponding period or periods of (or,
in
the case of the balance sheet, as of the end of) the previous fiscal year,
all
certified by one of its Financial Officers as presenting fairly in all material
respects the financial condition and results of operations of AMERCO (or, if
any
of the Loan Parties shall cease to be consolidated with AMERCO for financial
accounting purposes, of each such Loan Party, as applicable) and its
consolidated subsidiaries on a consolidated basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments and the
absence of footnotes;
(c) concurrently
with any delivery of AMERCO’s (or a Loan Party’s, as applicable) financial
statements under clause (a) and (b) above, a certificate of a Financial
Officer of each of the Loan Parties (i) certifying as to whether a Default
has
occurred and, if a Default has occurred, specifying the details thereof and
any
action taken or proposed to be taken with respect thereto and (ii) stating
whether any change in GAAP or in the application thereof that materially affects
AMERCO’s (or a Loan Party’s, as applicable) consolidated financial statements
accompanying such certificate (it being understood that any change that would
affect compliance with any covenant set forth herein or the Applicable Rate
shall be considered material) has occurred since the date of AMERCO’s (or a Loan
Party’s, as applicable) audited financial statements referred to in Section 6.04
and, if any such change has occurred, specifying the effect of such change
on
the financial statements accompanying such certificate;
(d) concurrently
with any delivery of financial statements under clause (a) above, a
certificate of the accounting firm that reported on such financial statements
stating whether they obtained knowledge during the course of their examination
of such financial statements of any Default (which certificate may be limited
to
the extent required by accounting rules or guidelines);
(e) promptly
after the same become publicly available, copies of all periodic and other
reports, proxy statements and other materials filed by AMERCO or any Loan Party
with the Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all of the functions of said Commission, or with any
national securities exchange, or financial information or other material
information distributed by AMERCO or any Loan Party to its stockholders
generally, as the case may be;
(f) promptly
following any request therefor, such other information regarding the operations,
business affairs and financial condition of AMERCO or any Loan Party, or
compliance with the terms of any Loan Document, as the Lender may reasonably
request; and
(g) provided
that Lender is unable to obtain such other information from a publicly available
source, promptly following any request therefore, on a quarterly basis, a report
of the name and location of all Persons that rent Vehicles on behalf of the
Borrowers and their Affiliates in the ordinary course of business pursuant
to a
Dealership Contract, as of the date of such report (which report shall also
be
furnished to the Collateral Agent).
Section
8.02. Notices
of Material Events.
(a) Each
Loan
Party shall furnish to the Lender written notice of the following promptly
upon
obtaining knowledge thereof:
(i) the
occurrence of any Default or Accelerated Amortization Event;
(ii) the
filing or commencement of any action, suit or proceeding by or before any
arbitrator or Governmental Authority against or affecting any Loan Party or
any
Affiliate thereof that, if adversely determined, could reasonably be expected
to
result in a Default or a Material Adverse Effect; and
(iii) any
other
development that results in, or could reasonably be expected to result in,
a
Default or a Material Adverse Effect.
(b) Each
notice delivered under this Section shall be accompanied by a statement of
a
Financial Officer or other executive officer of any of the Loan Parties setting
forth the details of the event or development requiring such notice and any
action taken or proposed to be taken with respect thereto.
Section
8.03. Information
Regarding Collateral.
Each of
the Loan Parties shall furnish to the Collateral Agent and the Lender prompt
written notice of any change (i) in corporate name of the Borrowers or in any
trade name used to identify any Loan Party in the conduct of its business or
in
the ownership of its properties, (ii) in the jurisdiction where any Loan Party
is located for the purposes of the UCC, or any Vehicle constituting Collateral
has been titled with the applicable state agency or department, or in which
all
UCC financing statements and other appropriate filings, recordings or
registrations, containing a description of the Collateral have been filed of
record in each governmental, municipal or other appropriate office in such
jurisdiction to the extent necessary to perfect the security interests under
the
Security Documents, (iii) in the identity or corporate structure of any Loan
Party or (iv) in the Federal Taxpayer Identification Number of any Loan Party.
No Loan Party shall effect or permit
any
change referred to in the preceding sentence unless all filings have been made
under the UCC or otherwise that are required in order for the Lender to continue
at all times following such change to have a valid, legal and perfected security
interest in all the Collateral.
Section
8.04. Existence;
Conduct of Business.
Each
Loan Party shall do or cause to be done all things necessary to preserve, renew
and keep in full force and effect its legal existence and the rights, licenses,
permits, privileges and franchises material to the conduct of its
business.
Section
8.05. Payment
of Obligations.
Each
Loan Party shall pay its Indebtedness and other obligations, including Tax
liabilities, before the same shall become delinquent or in default, except
where
(i) the validity or amount thereof is being contested in good faith by
appropriate proceedings, (ii) such Loan Party has set aside on its books
adequate reserves with respect thereto in accordance with GAAP, (iii) such
contest effectively suspends collection of the contested obligation and the
enforcement of any Lien securing such obligation and (iv) the failure to make
payment pending the resolution of such contest could not reasonably be expected
to result in a Material Adverse Effect.
Section
8.06. Maintenance
of Properties and Fleet Owner Cash Flow.
Each
Loan Party shall keep and maintain all Collateral, and all other property
material to the conduct of its business in good working order and condition,
ordinary wear and tear excepted. U-Haul Leasing & Sales Co. shall (i)
maintain the Fleet Owner Agreement in effect as a valid and existing obligation
of itself and its marketing Affiliates, (ii) update the Fleet Owner Agreement
from time to time as appropriate to reflect changes in the marketing Affiliates
party to the various Dealership Contracts and Rental Company Contracts and
(iii)
not without the prior written consent of the Lender, amend or otherwise modify
the Fleet Owner Agreement in a manner that would materially and adversely effect
the amount of Fleet Owner Cash Flows payable to U-Haul Leasing & Sales Co.
thereunder.
Section
8.07. Insurance.
The
Loan Parties shall, at their own expense, maintain at all times and keep in
full
force and effect policies of insurance with respect to the properties of the
Loan Parties constituting Collateral, including general and vicarious liability
insurance (including bodily injury coverage) related to the Vehicles (updated
from time to time to reflect any changes to the Vehicles constituting
Collateral) in such amounts, against such risks and with such terms (including
deductibles, limits of liability and loss payment provisions) as are required
by
applicable law and consistent with industry standards. All such insurance
policies shall be in form, substance and insured amount satisfactory to the
Lender, with standard coverage and subject to deductibles and with reputable
insurance companies, as may be reasonably required by the Lender. If the Lender
or the Collateral Agent shall determine that a Material Adverse Change has
occurred or if an Event of Default shall have occurred, then within five
Business Days after delivery by the Lender or the Collateral Agent to the
Borrowers of a written request therefor, the Borrowers shall cause each of
the
Lender and Collateral Agent to be named as an additional insured under all
such
liability insurance policies.
Section
8.08. Books
and Records; Inspection Rights.
Each
Loan Party shall keep proper books of record and account in which full, true
and
correct entries are
Section
8.09. made
of
all Collateral and transactions contemplated by this Agreement. Each Loan Party
shall permit any representatives designated by the Lender, at the Borrowers’
expense, upon reasonable prior notice, to visit and inspect its properties,
to
examine and make extracts from its books and records, and to discuss its
affairs, finances and condition with its officers and independent accountants,
all at such reasonable times and as often as reasonably requested. Any such
inspection shall be subject to the confidentiality restrictions set forth in
Section 12.12.
Section
8.10. Compliance
with Laws and Agreements.
Each
Loan Party shall comply with all laws, rules, regulations and orders of any
Governmental Authority (including ERISA) applicable to it or its property and
all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate,
could not reasonably be expected to result in a Material Adverse
Effect.
Section
8.11. Use
of
Proceeds.
The
proceeds of the Loans shall be used solely for to finance the purchase and
assembly of Eligible Vehicle Collateral (including the manufacture of the van
box of any Vehicle comprising Eligible Vehicle Collateral) occurring during
the
60 days immediately preceding the date of such Loan.
Section
8.12. Further
Assurances.
Each
Loan Party shall, and shall cause each other Loan Party to, execute any and
all
further documents, financing statements, agreements and instruments, and take
all such further actions (including the filing and recording of financing
statements, Certificates of Title and other documents), which may be required
under any applicable law, or which the Lender may reasonably request, to
effectuate the transactions contemplated by the Loan Documents or to grant,
preserve, protect or perfect the Liens created or intended to be created by
the
Security Documents or the validity or priority of any such Lien, all at the
expense of the Loan Parties. Each Loan Party also agrees to provide to the
Collateral Agent and the Lender upon request, evidence reasonably satisfactory
to the Lender as to the perfection and priority of the Liens created or intended
to be created by the Security Documents.
Section
8.13. Casualty.
(a) Each
Loan
Party shall furnish to the Lender prompt notice of any casualty or other damage
to any portion of the Collateral having a value in excess of $75,000 or the
commencement of any action or proceeding for the taking of any Collateral or
any
part thereof or interest therein by condemnation or similar
proceeding.
(b) If
any
event described in paragraph (a) of this Section results in Net Proceeds
(whether in the form of insurance proceeds, or otherwise), the Lender is
authorized to collect such Net Proceeds and, if received by a Loan Party, such
Net Proceeds shall be deposited in the Collection Sub-Account. All such Net
Proceeds retained by or paid over to the Lender shall be held by the Lender
and
released from time to time to pay the costs of repairing, restoring or replacing
the affected property in accordance with the terms of this Agreement and the
applicable provisions of the Security Documents, subject to the provisions
of
the Security Documents regarding application of such Net Proceeds during a
Default or an Event of Default.
(c) If
any
Net Proceeds retained by the Lender or deposited in the Collection Sub-Account
as provided above continue to be held by the Lender on the date that any
prepayment is due pursuant to Section 5.08 in respect of the event
resulting in such Net Proceeds, then such Net Proceeds shall be applied to
prepay Loans as provided in Section 5.08.
Section
8.14. Interest
Rate Protection.
The
Borrowers agree to consult from time to time with the Lender regarding the
advisability of entering into swaps, caps or other interest rate hedging
agreements to limit the Borrowers’ exposure to interest payable under this
Agreement and to develop a hedging strategy mutually agreeable to the Borrowers
and the Lender.
ARTICLE
IX
NEGATIVE
COVENANTS
Until
the
Commitments have expired or terminated and the principal of and interest on
each
Loan and all fees payable hereunder have been paid in full, each of the Loan
Parties covenants and agrees with the Collateral Agent and the Lender
that:
Section
9.01. Change
in Control.
No Loan
Party shall permit, consent to or acquiesce to any Change in Control without
the
prior written consent of Lender.
Section
9.02. Use
of
Collateral.
(a) Except
as
otherwise provided in clause (b) of this Section 9.02, no Loan Party shall
permit any tangible asset constituting Collateral to be located (i) outside
the United States or Canada, (ii) outside the possession of the Borrowers or
its
Affiliates, except, with respect to Vehicles, when (A) consigned to the
possession of a third party dealer pursuant to a Dealership Contract rented
to
consumers in the ordinary course of Borrowers’ business or, (B) in transit
to such locations, or (C) in transit to a third party purchaser who will
become obligated on a receivable upon receipt, (iii) on any property not owned
by the Borrowers, except, with respect to Vehicles, when rented in the ordinary
course of Borrowers’ business.
(b) This
Section 9.02 shall not be construed to prohibit (i) the return of any asset
constituting Collateral to the vendor thereof or to third parties for repairs,
services, modifications or other similar purposes or (ii) the storage of any
asset constituting Collateral in any warehouse or similar facility.
Section
9.03. Negative
Pledge.
No Loan
Party shall, directly or indirectly, create, incur, assume or suffer to exist
any Lien upon any Collateral, except for Permitted Encumbrances.
Section
9.04. Limitations
on Fundamental Changes.
No Loan
Party shall, directly or indirectly, enter into any merger, consolidation or
amalgamation, or liquidate, wind up or dissolve itself (or suffer any
liquidation or dissolution), or convey, sell, lease, assign, transfer or
otherwise dispose of, all or substantially all of its property, business or
assets, or make any material change in its present method of conducting
business, except:
(a) any
Subsidiary of a Loan Party may be merged or consolidated with or into such
Loan
Party (provided that such Loan Party shall be the continuing or surviving
corporation); or
(b) any
merger, consolidation or amalgamation, or liquidation, winding up or dissolution
that would not reasonably be expected (i) to materially and adversely affect
the
rights of the Lender and the Collateral Agent hereunder, or (ii) to have a
Material Adverse Effect.
ARTICLE
X
EVENTS
OF
DEFAULT
Section
10.01. Events
of Default.
An
"Event
of Default"
shall
mean the occurrence and continuation of one or more of the following events
or
conditions:
(a) the
Borrowers, any Guarantor or the Servicer/Manager shall fail to pay or deposit
any principal of or interest (including any Borrowing Base Deficiency pursuant
to Article V, but not including any monthly Collection Sub-Account Deposit)
on any Loan or any fee or any other amount payable under this Agreement, within
one Business Day of when same shall become due and payable, whether at the
due
date thereof or at a date fixed for prepayment thereof or otherwise; or the
Borrowers or the Servicer/Manager shall fail to deposit to the Collection
Account any Daily Collection Account Deposit Amount on the date and time such
deposit is required to be made pursuant to Section 5.03(d);
(b) any
representation or warranty made or deemed made by or on behalf of any Loan
Party
in or in connection with any Loan Document or any amendment or modification
thereof or waiver thereunder, or in any report, certificate, financial statement
or other document furnished pursuant to or in connection with any Loan Document
or any amendment or modification thereof or waiver thereunder, shall prove
to
have been incorrect in any respect when made or deemed made;
(c) any
Loan
Party shall fail to observe or perform any covenant, condition or agreement
contained in Sections 8.02, 8.07 and Article IX of this Agreement, and such
failure shall continue unremedied for a period of three (3) days after knowledge
thereof by any Loan Party;
(d) any
Loan
Party shall fail to observe or perform any covenant, condition or agreement
contained in any Loan Document, and such failure shall continue unremedied
for a
period of thirty (30) days after notice thereof from the Lender to the
Borrowers, except those certain covenants, conditions or agreements listed
in
subsection 10.01(c) above;
(e) any
Loan
Party shall fail to make any payment (whether of principal or interest and
regardless of amount) in respect of any Indebtedness in excess of $10,000,000,
when and as the same shall become due and payable (after giving effect to any
period of grace expressly applicable thereto);
(f) any
event
or condition occurs that results in any Indebtedness in excess of $10,000,000
becoming due prior to its scheduled maturity or that enables or permits (after
giving
effect
to
any period of grace expressly applicable thereto) the holder or holders of
any
material Indebtedness or any trustee or agent on its or their behalf to cause
any material indebtedness to become due, or to require the prepayment,
repurchase, redemption or defeasance thereof, prior to its scheduled maturity;
provided
that
this clause (f) shall not apply to secured Indebtedness that becomes due as
a
result of the voluntary sale or transfer of the property or assets securing
such
Indebtedness;
(g) an
involuntary proceeding shall be commenced or an involuntary petition shall
be
filed seeking (i) liquidation, reorganization or other relief in respect of
AMERCO, UHI or any of the Borrowers, or its debts, or of a substantial part
of
its assets, under any Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect or (ii) the
appointment of a receiver, trustee, custodian, sequestrator, conservator or
similar official for AMERCO, UHI or the Borrowers, or for a substantial part
of
its assets, and, in any such case, such proceeding or petition shall continue
undismissed for 60 days or an order or decree approving or ordering any of
the
foregoing shall be entered;
(h) any
of
the Loan Parties shall (i) voluntarily commence any proceeding or file any
petition seeking liquidation, reorganization or other relief under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar law now or
hereafter in effect, (ii) consent to the institution of, or fail to contest
in a
timely and appropriate manner, any proceeding or petition described in clause
(g) of this Article, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official
for
AMERCO, UHI or any of the Borrowers or for a substantial part of its assets,
(iv) file an answer admitting the material allegations of a petition filed
against it in any such proceeding, (v) make a general assignment for the benefit
of creditors or (vi) take any action for the purpose of effecting any of the
foregoing;
(i) AMERCO,
UHI or any of the Borrowers shall become unable, admit in writing its inability
or fail generally to pay its debts as they become due;
(j) one
or
more judgments or decrees shall be entered against any Loan Party involving
in
the aggregate a liability (not paid or fully covered by insurance) of $5,000,000
or more, and all such judgments or decrees shall not have been vacated,
discharged, stayed or bonded pending appeal within 60 days from the entry
thereof;
(k) any
Lien
on any portion of the Vehicle Collateral having a Vehicle Facility Value equal
to or greater than 2% of the Outstanding Loans at such time, or on any portion
of any other Collateral, purported to be created under the Security Documents
shall cease to be, or shall be asserted by any Loan Party not to be, a valid
and
perfected Lien on the applicable Collateral, with the priority required by
the
Security Documents and that could individually or in the aggregate have a
Material Adverse Effect on such Vehicle Collateral or the interests of the
Lender in such Vehicle Collateral or such other Collateral under the Loan
Documents, except as a result of the sale or other disposition of the applicable
Collateral in a transaction permitted under the Loan Documents;
(l) the
Guarantee Agreement shall cease to be in full force and effect, or any Guarantor
shall make an assertion to such effect in any judicial proceeding;
and
(m) an
ERISA
Event that when taken together with all other ERISA Events that have occurred,
could reasonably be expected to result in a Material Adverse
Effect.
Section
10.02. Consequences
of an Event of Default.
If an
Event of Default specified in Section 10.01 hereof shall occur and be
continuing, then, and in every such event (other than an event with respect
to
the Borrowers described in clause (f), (g) or (h) of Section 10.01), the
Facility provided by this Agreement shall immediately terminate, and the
Outstanding Loans, together with accrued and unpaid interest thereon, and all
other Obligations, shall immediately become due and payable, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrowers; and in case of any event with respect to the
Borrowers, AMERCO or UHI described in clause (f), (g) or (h) of
Section 10.01, the Facility provided by this Agreement shall automatically
and immediately terminate, and the Outstanding Loans, together with accrued
and
unpaid interest thereon, and all other Obligations, shall immediately become
due
and payable, without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrowers. Further, if an Event of Default
specified in Section 10.01 hereof shall occur and be continuing, then, and
in
every such event the Collateral Agent shall have the right to collect, receive,
appropriate or realize upon the Collateral or otherwise foreclose or enforce
Collateral Agent’s security interests in any or all Collateral in any manner
permitted by the Security Agreement. Additionally, if an Event of Default shall
have occurred and be continuing, no monies on deposit in the Collection Account
shall be released until all outstanding Obligations are paid in full. Further,
if an Event of Default shall occur and be continuing, then, and in every such
event the Lender shall have the right to draw upon the Guarantee.
Notwithstanding the foregoing, if an Event of Default shall occur and be
continuing, each of the Collateral Agent and the Lender may pursue any remedies
available to it in order to seek repayment of all outstanding Obligations in
full.
ARTICLE
XI
ACCELERATED
AMORTIZATION EVENT
Section
11.01. Consequences
of Accelerated Amortization Event.
(a) Within
a
reasonable (at the discretion of the Lender) period of time following an
Accelerated Amortization Event, the Borrowers may elect, upon prior written
notice to the Lender, to pledge additional Eligible Vehicle Collateral under
the
Security Agreement and allocate such Eligible Vehicle Collateral to one or
more
Monthly Pools, without borrowing additional amounts hereunder, to satisfy the
Fleet Owner Cash Flow Ratio requirement and avoid an Accelerated Amortization
Event; provided,
that if
the Borrowers elect to pledge additional Eligible Vehicle Collateral in
accordance with this Section 11.01 (a), then from and after the date of such
election, the Interest Rate on all Outstanding Loans shall be LIBOR plus 2.00%
per annum for the remaining term of the Facility.
(b) Upon
the
occurrence of an Accelerated Amortization Event, (i) the Borrowing Base shall
be
reduced as provided herein; and (ii) the Lender may draw upon the
(c) Guarantee
(if needed) to pay down the Outstanding Loans and avoid a Borrowing Base
Deficiency.
ARTICLE
XII
MISCELLANEOUS
Section
12.01. Notices.
Except
in the case of notices and other communications expressly permitted to be given
by telephone, all notices and other communications provided for herein shall
be
in writing and shall be delivered by hand or overnight courier service, mailed
by certified or registered mail or sent by telecopy, as follows:
(a) if
to
U-Haul Leasing & Sales Co., to it at 0000 Xxxxxxxxx Xxx, Xxxx, XX
00000-0000, Attention: Xxxxx Xxxxxxx (Facsimile No. (000)
000-0000);
(b) if
to
UHI, in any capacity, or U-Haul Co. of Arizona, to such party at 0000 X. Xxxxxxx
Xxxxxx, Xxxxxxx, XX 00000, Attention: Xxxxxxxx Xxxxxxx (Facsimile No. (000)
000-0000);
(c) if
to
AMERCO, to it at 0000 Xxxxxxxxx Xxx, Xxx. 000, Xxxx, Xxxxxx 00000-0000,
Attention: Xxxxx Xxxxxxx (Facsimile No. (000) 000-0000);
(d) if
to the
Lender, to it at 000 Xxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, XX 00000-0000,
Attention: Senior Vice President - Portfolio Administration (Facsimile No.
(000)
000-0000); and
(e) if
to the
Collateral Agent, to it at Xxxxx Fargo Bank Northwest, National Association,
000
Xxxxx Xxxx Xxxxxx, 00xx Xxxxx, Xxxx Xxxx Xxxx, Xxxx 00000, Attention: Corporate
Lease Group (Facsimile No. (000) 000-0000).
Any
party
hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices
and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of receipt.
All
payments hereunder shall be made in accordance with the wire instructions
specified on Exhibit
K
hereto,
or to such other payment address as may be specified in writing by the
applicable payee party to the other parties hereto.
Section
12.02. Waivers;
Amendments.
(a) No
failure or delay by the Collateral Agent or the Lender in exercising any right
or power hereunder or under any other Loan Document shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power,
or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of the Collateral Agent and the Lender
hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies that they would otherwise have. No waiver
of
any provision of any Loan Document or consent to any departure by any Loan
Party
therefrom shall in any
event
be
effective unless the same shall be permitted by paragraph (b) of this Section,
and then such waiver or consent shall be effective only in the specific instance
and for the purpose for which given. Without limiting the generality of the
foregoing, the making of a Loan shall not be construed as a waiver of any
Default, regardless of whether the Lender may have had notice or knowledge
of
such Default at the time.
(b) Neither
this Agreement nor any provision hereof may be waived, amended or modified
except pursuant to an agreement or agreements in writing entered into by the
Loan Parties, the Collateral Agent and the Lender.
Section
12.03. Expenses;
Indemnity; Damage Waiver.
(a) The
Borrowers shall pay (i) all costs and expenses incurred by the Lender, including
the reasonable fees, charges and disbursements of counsel for the Lender, in
connection with the negotiation, preparation, execution and delivery of the
Loan
Documents (including expenses incurred in connection with its due diligence
activities) and (ii) all costs and expenses incurred by the Lender or the
Collateral Agent, including the reasonable fees, charges and disbursements
of
any counsel for the Lender or the Collateral Agent, in connection with
(A) the enforcement or protection of its rights in connection with the Loan
Documents, including its rights under this Section, or in connection with the
Loans made hereunder, including all such costs and expenses incurred during
any
workout, restructuring or negotiations in respect of such Loans, and (B) in
the
case of the Lender, the administration of, and any amendments, modifications,
waivers or supplements of or to the provisions of, any of the Loan
Documents.
(b) The
Borrowers shall indemnify the Lender, the Collateral Agent and the Related
Parties of any of the foregoing Persons (each such Person being called an
"Indemnitee")
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses, including the reasonable fees,
charges and disbursements of any counsel for any Indemnitee, incurred by or
asserted against any Indemnitee arising out of, in connection with, or as a
result of (i) the execution or delivery of any Loan Document or any other
agreement or instrument contemplated hereby, the performance by the parties
to
the Loan Documents of their respective obligations thereunder or the
consummation of the Transactions or any other transactions contemplated hereby,
(ii) any Loan or the use of the proceeds therefrom, (iii) the noting of the
lien
of the Collateral Agent on the Certificate of Title of any item of Vehicle
Collateral, (iv) the titling or retitling of any item of Vehicle
Collateral, (v) the manufacture, purchase, acceptance, nonacceptance,
rejection, ownership, delivery, lease, possession, use, operation, condition,
sale, return or other disposition of any item of Vehicle Collateral, or (vi)
any
actual or prospective claim, litigation, investigation or proceeding relating
to
any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided
that
such indemnity shall not, as to any Indemnitee, be available to the extent
that
such losses, claims, damages, liabilities or related expenses have resulted
from
the gross negligence or willful misconduct of such Indemnitee.
(c) To
the
extent permitted by applicable law, the Borrowers shall not assert, and each
of
them hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to direct or actual damages)
arising
out of, in connection with, or as a result of, this Agreement or any agreement
or instrument contemplated hereby, the Transactions, any Loan or the use of
the
proceeds thereof.
(d) All
amounts due under this Section shall be payable not later than 30 days after
written demand therefor.
Section
12.04. Successors
and Assigns.
(a) The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted hereby,
except that a Loan Party may not assign or otherwise transfer any of its rights
or obligations hereunder without the prior written consent of the Lender (and
any attempted assignment or transfer by any Loan Party without such consent
shall be null and void). Nothing in this Agreement, expressed or implied, shall
be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of the Lender) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) The
Lender may, without the consent of the Loan Parties, assign all or a portion
of
its rights and obligations under this Agreement (including all or a portion
of
its Commitment and the Loans at the time owing to it); provided
that (i)
except in the case of an assignment to an Affiliate of BTMUCC or its successors
or assigns, or an assignment of the entire remaining amount of the Lender’s
Commitment or entire remaining Loans, the amount of the Commitment and Loans
of
the assigning Lender subject to each such assignment (determined as of the
date
the Assignment and Acceptance with respect to such assignment is delivered
by
the assigning Lender) shall not be less than $5,000,000 unless the Borrowers
otherwise consent, (ii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and
obligations under this Agreement, except that this clause (ii) shall not be
construed to prohibit the assignment of a proportionate part of all of the
assigning Lender’s rights and obligations in respect of (A) Loans, (B) Loans
separately from (or without assigning) Commitments or (C) Commitments separately
from (or without assigning) Loans, (iii) the parties to each assignment
shall execute and deliver an Assignment and Acceptance, and (iv) the
assignee, if it shall not be a Lender hereunder prior to such assignment, shall
deliver to the Borrowers its notice and payment information. From and after
the
effective date specified in each Assignment and Acceptance the assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from
its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender’s rights and obligations under
this Agreement, the Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 5.07, 5.09, 5.10 and 12.03). Any
assignment or transfer by the Lender of rights or obligations under this
Agreement that does not comply with this paragraph shall be treated for purposes
of this Agreement as a sale by the Lender of a participation in such rights
and
obligations in accordance with paragraph (c) of this Section.
(c) The
Lender may, without the consent of the Loan Parties, sell participations to
one
or more Persons (a "Participant")
in all
or a portion of the Lender’s rights and obligations under this Agreement
(including all or a portion of its Commitments and the Loans owing to it);
provided
that (i)
the Lender’s obligations under this Agreement shall remain unchanged, (ii) the
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Loan Parties shall continue to
deal solely and directly with the Lender in connection with the Lender’s rights
and obligations under this Agreement. Any agreement or instrument pursuant
to
which the Lender sells such a participation shall provide that the Lender shall
retain the sole right to enforce the Loan Documents and to approve any
amendment, modification or waiver of any provision of the Loan Documents;
provided
that
such agreement or instrument may provide that the Lender will not, without
the
consent of the Participant, agree to any amendment, modification or waiver
to
any of the Loan Documents that would adversely affect such Participant. The
Loan
Parties agree that each Participant shall be entitled to the benefits of
Sections 5.07, 5.09 and 5.10 to the same extent as if it were a Lender and
had
acquired its interest by assignment pursuant to paragraph (b) of this Section
provided that such Participant agrees to be subject to Sections 5.10(d) as
though it was a Lender. To the extent permitted by law, each Participant also
shall be entitled to the benefits of Section 12.08 as though it were a
Lender.
(d) The
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of the Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank, and this Section shall not apply to any such pledge or assignment of
a
security interest; provided
that no
such pledge or assignment of a security interest shall release the Lender from
any of its obligations hereunder or substitute any such pledgee or assignee
for
the Lender as a party hereto.
(e) The
Collateral Agent may, with the consent of the Lender and without the consent
of
the Loan Parties, assign all or a portion of its rights and obligations under
this Agreement.
Section
12.05. Survival.
All
covenants, agreements, representations and warranties made by the Loan Parties
in the Loan Documents and in the certificates or other instruments delivered
in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of the Loan Documents and the making of
any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Lender may have had notice or knowledge
of
any Default or incorrect representation or warranty at the time any credit
is
extended hereunder, and shall continue in full force and effect as long as
the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid and so long as the
Commitments have not expired or terminated. The provisions of Sections 5.09,
5.10 and 12.03 and Article XI shall survive and remain in full force and effect
regardless of the consummation of the transactions contemplated hereby, the
repayment of the Loans, the expiration or termination of the Commitments or
the
termination of this Agreement or any provision hereof.
Section
12.06. Counterparts;
Integration; Effectiveness.
This
Agreement may be executed in counterparts (and by different parties hereto
on
different
counterparts),
each of which shall constitute an original, but all of which when taken together
shall constitute a single contract. This Agreement, the other Loan Documents
and
any separate letter agreements with respect to fees payable to the Lender
constitute the entire contract among the parties relating to the subject matter
hereof and supersede any and all previous agreements and understandings, oral
or
written, relating to the subject matter hereof. Except as provided in Section
7.01(a), this Agreement shall become effective when it shall have been executed
by the Lender and when the Lender shall have received counterparts hereof which,
when taken together, bear the signatures of each of the other parties hereto,
and thereafter shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns. Delivery of an executed
counterpart of a signature page of this Agreement by telecopy shall be effective
as delivery of a manually executed counterpart of this Agreement.
Section
12.07. Severability.
Any
provision of this Agreement held to be invalid, illegal or unenforceable in
any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
Section
12.08. Right
of Setoff.
If an
Event of Default shall have occurred and be continuing, the Lender and each
of
its Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held
and
other obligations at any time owing by the Lender or Affiliate to or for the
credit or the account of the Borrowers against any of and all the obligations
of
the Borrowers now or hereafter existing under this Agreement held by the Lender,
irrespective of whether or not the Lender shall have made any demand under
this
Agreement and although such obligations may be unmatured. The rights of the
Lender under this Section are in addition to other rights and remedies
(including other rights of setoff) which the Lender may have.
Section
12.09. Governing
Law; Jurisdiction; Consent to Service of Process.
(a) THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE
STATE OF NEW YORK.
(b) Each
of
the Servicer/Manager, each Guarantor and each Borrower hereby irrevocably and
unconditionally submits, for itself and its property, to the nonexclusive
jurisdiction of the Supreme Court of the State of New York sitting in New York
County and of the United States District Court of the Southern District of
New
York, and any appellate court from any thereof, in any action or proceeding
arising out of or relating to any Loan Document, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such New York State or, to the extent
permitted by law, in such Federal court. Each of the parties hereto agrees
that
a final judgment in any such action or proceeding shall be conclusive and may
be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement or any other Loan
Document
shall affect any right that the Lender may otherwise have to bring any action
or
proceeding relating to this Agreement or any other Loan Document against the
Borrowers or its properties in the courts of any jurisdiction.
(c) Each
of
the Servicer/Manager, each Guarantor and each Borrower hereby irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively
do
so, any objection which it may now or hereafter have to the laying of venue
of
any suit, action or proceeding arising out of or relating to this Agreement
or
any other Loan Document in any court referred to in paragraph (b) of this
Section. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(d) Each
of
the Servicer/Manager, each Guarantor and each Borrower hereby irrevocably agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to such Person at its address set forth
in Section 12.01 or at such other address of which the Lender shall have been
notified pursuant thereto. Nothing in this Agreement or any other Loan Document
will affect the right of any party to this Agreement to serve process in any
other manner permitted by law.
Section
12.10. WAIVER
OF JURY TRIAL.
EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY
OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT
OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION.
Section
12.11. Headings.
Article
and Section headings and the Table of Contents used herein are for convenience
of reference only, are not part of this Agreement and shall not affect the
construction of, or be taken into consideration in interpreting, this
Agreement.
Section
12.12. Confidentiality.
The
Lender and the Collateral Agent each agree to maintain the confidentiality
of
the Information (as defined below) and not use the Information for any purpose
not contemplated by this Agreement, except that Information may be disclosed
(a)
to its and its Affiliates’ directors, officers, employees and agents, including
accountants, legal counsel and other advisors (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c)
to
the extent required by applicable laws or regulations or by any
subpoena
or similar legal process, (d) to any other party to this Agreement, (e) in
connection with the exercise of any remedies hereunder or any suit, action
or
proceeding relating to this Agreement or any other Loan Document or the
enforcement of rights hereunder or thereunder, (f) subject to an agreement
containing provisions substantially the same as those of this Section, to any
assignee of or Participant in, or any prospective assignee of or Participant
in,
any of its rights or obligations under this Agreement, (g) with the consent
of
UHI or the Borrowers or (h) to the extent such Information (i) becomes publicly
available other than as a result of a breach of this Section or
(ii) becomes available to the Lender or the Collateral Agent, as
applicable, on a nonconfidential basis from a source other than UHI or the
Borrowers. For the purposes of this Section, "Information"
means
all information received from UHI or the Borrowers relating to UHI or the
Borrowers or its business, other than any such information that is publicly
available or available to the Lender or the Collateral Agent, as applicable
on a
nonconfidential basis prior to disclosure by UHI or the Borrowers, provided
that
such information is identified at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided
in
this Section shall be considered to have complied with its obligation to do
so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
Section
12.13. Joint
and Several Liability of the Borrowers.
Each
Borrower acknowledges and agrees that, whether or not specifically indicated
as
such in a Loan Document, all Obligations shall be joint and several Obligations
of each individual Borrower, and in furtherance of such joint and several
Obligations, each Borrower hereby irrevocably and unconditionally guarantees
the
payment of all Obligations of each other Borrower. Each Borrower hereby
acknowledges and agrees that such Borrower shall be jointly and severally liable
to the Lender and the Collateral Agent for all representations, warranties,
covenants, obligations and indemnities of the Borrowers hereunder.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
|
U-HAUL
LEASING & SALES CO., as a Borrower
|
|
By:
|
|
Name:
|
|
Title:
|
|
U-HAUL
CO. OF ARIZONA, as a Borrower
|
|
By:
|
|
Name:
|
|
Title:
|
|
U-HAUL
INTERNATIONAL, INC., as a Borrower, as Servicer/Manager, Guarantor
and as
Custodian
|
|
By:
|
|
Name:
|
|
Title:
|
|
AMERCO,
as Guarantor
|
|
By:
|
|
Name:
|
|
Title:
|
|
BTMU
CAPITAL CORPORATION, as Lender
|
|
By:
|
|
Name:
|
|
Title:
|
|
ORANGE
TRUCK TRUST 2006, as Collateral Agent
|
|
By:
Xxxxx Fargo Bank Northwest, National Association, solely as
Trustee
|
|
By:
|
|
Name:
|
|
Title:
|
Schedule
6.04
Liabilities
(in excess of $25,000,000)
1.
U-Haul
International, Inc. is the guarantor of all obligations under that Amended
and
Restated Credit Agreement among Amerco Real Estate Company, Amerco Real Estate
Company of Texas, Inc., Amerco Real Estate Company of Alabama, Inc., U-Haul
Co.
of Florida, U-Haul International, Inc. and Xxxxxxx Xxxxx Commercial Finance
Corp., dated as of June 8, 2005 in the amount of $465 million.
2. U-Haul
International, Inc. is the guarantor of certain obligations under the $240
million, in aggregate amount, of CMBS loans originated by Xxxxxxx Xxxxx Mortgage
Lending, Inc. to affiliates of U-Haul International, Inc., dated June 8,
2005.
3. U-Haul
International, Inc. is the guarantor of certain obligations under the $240
million, in aggregate amount, of CMBS loans originated by Xxxxxx Xxxxxxx
Mortgage Capital, Inc. to affiliates of U-Haul International, Inc., dated June
8, 2005.
4. U-Haul
Leasing & Sales Co. is the lessee under a Master Equipment Lease, between
AIG Commercial Equipment Finance, Inc., as lessor and U-Haul Leasing & Sales
Co., dated March 29, 2005, in the amount of $42,818,676.35.
5. U-Haul
Leasing & Sales Co. is the lessee under a Master Equipment Lease, between
Banc of America Leasing & Capital, LLC, as lessor and U-Haul Leasing &
Sales Co., dated December 19, 1997, in the amount of
$54,696,396.62.
6. U-Haul
Leasing & Sales Co. is the lessee under a Master Equipment Lease, between
General Electric Capital Corporation, as lessor and U-Haul Leasing & Sales
Co., dated October 22, 2004, in the amount of $90,950,539.06.
7. U-Haul
Leasing & Sales Co. is the lessee under a Master Equipment Lease, between
Xxxxxxx Xxxxx Capital, a division of Xxxxxxx Xxxxx Business Financial Services
Inc., as lessor and U-Haul Leasing & Sales Co., dated April 30, 2004,
in the amount of $40,875,369.22.
8. U-Haul
Leasing & Sales Co., U-Haul Co. of Arizona and U-Haul International, Inc.
are borrowers pursuant to a Credit Agreement between such parties, U-Haul
International, Inc. as guarantor and Xxxxxxx Xxxxx Commercial Finance
Corporation, as lender, dated as of June 28, 2005, in an amount up to
$150,000,000.
9. U-Haul
Leasing & Sales Co., U-Haul Co. of Arizona and U-Haul International, Inc.
are borrowers pursuant to a Credit Agreement between such parties, U-Haul
International, Inc. as guarantor and Xxxxxxx Xxxxx Commercial Finance
Corporation, as lender, dated as of November 10, 2005, in an amount up to
$150,000,000.
10. U-Haul
Leasing is lessee under a Master Equipment Lease, between Chase Equipment
Leasing, Inc. as Lessor and U-Haul Leasing & Sales Co., dated June 17, 1999,
in the amount of $38,764,463.17.
11. U-Haul
Leasing is lessee under a Master Equipment Lease, between National City Leasing
Corporation, as Lessor and U-Haul Leasing & Sales Co., dated December 15,
1999, in the amount of $30,638,189.26.
12. Obligations
as Guarantor under that certain Promissory Note dated August 12, 2005 in the
maximum amount of up to $50,000,000 (of which $20,000,000 has currently been
drawn) made by AREC Holdings, LLC and UHIL Holdings, LLC in favor of Xxxxxx
Xxxxxxx Mortgage Capital, Inc.
Schedule
6.15
INSURANCE
POLICIES
AMERCO
Insurance Program
Liability
and Business Auto
EXHIBIT
A
[FORM
OF
ASSIGNMENT AND ACCEPTANCE]
ASSIGNMENT
AND ACCEPTANCE
Reference
is made to the Credit Agreement, dated as of May 31, 2006 (as the same may
be
amended, supplemented or otherwise modified from time to time, the "Credit
Agreement"),
among
U-HAUL LEASING & SALES CO., a Nevada corporation, U-HAUL INTERNATIONAL,
INC., a Nevada corporation, AMERCO, a Nevada corporation, BTMU CAPITAL
CORPORATION, a Delaware corporation, and ORANGE TRUCK TRUST 2006, a Utah common
law trust. Capitalized terms used herein but not defined herein shall have
the
meanings assigned to such terms in the Credit Agreement.
1. The
assignor named below (the "Assignor")
sells
and assigns, without recourse, to the assignee named below (the "Assignee"),
and
the Assignee hereby purchases and assumes, without recourse, from the Assignor,
effective as of the Effective Date set forth below, the interests set forth
below (the "Assigned
Interest")
in the
Assignor’s rights and obligations under the Credit Agreement, including, without
limitation, the percentages and amounts set forth on the reverse hereof of
(a)
the Commitments of the Assignor on the Effective Date and (b) the Loans owing
to
the Assignor that are outstanding on the Effective Date. The Assignee hereby
acknowledges receipt of a copy of the Credit Agreement. From and after the
Effective Date (a) the Assignee shall be a party to and be bound by the
provisions of the Credit Agreement and, to the extent of the interests assigned
by this Assignment and Acceptance, have the rights and obligations of a Lender
thereunder and under the Loan Documents and (b) the Assignor shall, to the
extent of the interests assigned by this Assignment and Acceptance, relinquish
its rights and be released from its obligations under the Credit Agreement
(and
in the event that this Assignment and Acceptance covers all or the remaining
portion of the Assignor’s rights and obligations under the Credit Agreement, the
Assignor shall cease to be a party thereto but shall continue to be entitled
to
the benefits of Sections 5.09, 5.10 and 12.05 thereof, as well as to any fees
accrued for its account and not yet paid).
2. This
Assignment and Acceptance is being delivered to the Assignor and the Borrowers,
together with, if the Assignee is organized under the laws of a jurisdiction
outside the United States, the forms specified in Section 5.10 of the Credit
Agreement, duly completed and executed by such Assignee.
3. This
Agreement and Acceptance shall be governed by, and construed in accordance
with,
the laws of the State of New York.
|
Date
of Assignment:
|
|
|
Legal
Name of Assignee:
|
|
|
Legal
Name of Assignor:
|
|
|
Assignee’s
Address for Notices
|
Effective
Date of Assignment (may not be fewer than five Business Days after the Date
of
Assignment):
The
terms
set forth above are hereby agreed to:
|
[_____________________]
|
|
as
Assignor,
|
|
By:
|
|
Name:
|
|
Title:
|
|
[_________________________]
|
|
as
Assignee,
|
|
By:
|
|
Name:
|
|
Title:
|
A-
EXHIBIT
B
[FORM
OF
GUARANTEE AGREEMENT]
B-
EXHIBIT
C
FORM
OF
BORROWING REQUEST
_____________,
20__
BTMU
Capital Corporation
000
Xxxxxxxxxx Xxxxxx
Xxxxx
000
Xxxxxx,
XX 00000-0000
Attention:
[________]
Re: $150,000,000
Credit Agreement
Ladies
and Gentlemen:
The
undersigned are Responsible Officers of U-Haul Leasing & Sales Co., U-Haul
Co. of Arizona and U-Haul
International, Inc. (collectively,
the "Borrowers"),
and
are authorized to execute and deliver this Borrowing Request on behalf of the
Borrowers pursuant to the
Credit Agreement, dated as of May 31, 2006 (as amended, supplemented or modified
from time to time, the "Agreement"),
among
the Borrowers, U-Haul International, Inc., as Servicer/Manager and Guarantor,
AMERCO, as Guarantor, BTMU Capital Corporation, as Lender and Orange Truck
Trust
2006, as Collateral Agent.
Capitalized terms not otherwise defined herein have the meanings ascribed
thereto in the Agreement. The Borrowers hereby request that a Loan be made
under
the Agreement on __________, 20__ in the amount of $__________. In connection
with the foregoing, the undersigned hereby certifies, on behalf of the
Borrowers, as follows:
(i) Each
of
the representations and warranties contained in Article Six of the Agreement
is
true and correct in all respects on and as of the date hereof as though made
as
of the date hereof and on the date of the Loan requested hereby, immediately
after giving effect to the such Loan.
(ii) No
Default, Event of Default or Accelerated Amortization Event has occurred and
is
occurring. No Default, Event of Default, Accelerated Amortization Event,
Borrowing Base Deficiency or Collection Sub-Account Failure will exist as a
result of making the requested Loan.
(iii) Attached
hereto as Schedule I is a copy of the Borrowing Base Certificate calculated
as
of ______, 20__, together
with an
accompanying Vehicle Schedule.
(iv) Attached
hereto as Schedule II is the confirmation of receipt of the Custodian required
pursuant to Section 4.02(b) of the Agreement, if applicable.
(v) Attached
hereto as Schedule III is a calculation showing the Collection Sub-Account
Deposit, if any, required in connection with the requested Loan.
(vi) No
Material Adverse Change has occurred since [__________], 2006.
C-
The
information supplied in the Schedules hereto is accurate as of the dates
specified therein.
|
U-HAUL
LEASING & SALES CO.
|
|
By:
|
|
Name:
Title:
|
|
U-HAUL
CO. OF ARIZONA
|
|
By:
|
|
Name:
Title:
|
|
U-HAUL
INTERNATIONAL, INC.
|
|
By:
|
|
Name:
Title:
|
C-
EXHIBIT
D
[FORM
OF
BORROWING BASE CERTIFICATE]
|
Monthly
Analysis
|
|
New
Truck Term Loan Facility
|
|
Borrowing
Base Analysis
|
|
Monthly
Pool #1:
|
[Date
of Funding]
|
|||
|
End
of Month
|
Number
of Vehicles
|
Vehicle
Cost
|
Advance
Rate
|
Vehicle
Facility Value
|
|
1
|
98.33%
|
|||
|
2
|
96.67%
|
|||
|
3
|
95.00%
|
|||
|
4
|
93.33%
|
|||
|
5
|
91.67%
|
|||
|
6
|
90.00%
|
|||
|
7
|
88.33%
|
|||
|
8
|
86.67%
|
|||
|
9
|
85.00%
|
|||
|
10
|
83.33%
|
|||
|
11
|
81.67%
|
|||
|
12
|
80.00%
|
|||
|
13
|
78.75%
|
|||
|
14
|
77.50%
|
|||
|
15
|
76.25%
|
|||
|
16
|
75.00%
|
|||
|
17
|
73.75%
|
|||
|
18
|
72.50%
|
|||
|
19
|
71.25%
|
|||
|
20
|
70.00%
|
|||
|
21
|
68.75%
|
|||
|
22
|
67.50%
|
|||
|
23
|
66.25%
|
|||
|
24
|
65.00%
|
|||
|
25
|
63.75%
|
|||
|
26
|
62.50%
|
|||
|
27
|
61.25%
|
|||
|
28
|
60.00%
|
|||
|
29
|
58.75%
|
|||
|
30
|
57.50%
|
|||
|
31
|
56.25%
|
|||
|
32
|
55.00%
|
|||
|
33
|
53.75%
|
|||
|
34
|
52.50%
|
|||
|
35
|
51.25%
|
|||
|
36
|
50.00%
|
|||
|
37
|
49.50%
|
|||
|
38
|
49.00%
|
|||
|
39
|
48.50%
|
|||
|
40
|
48.00%
|
|||
|
41
|
47.50%
|
|||
|
42
|
47.00%
|
|||
|
43
|
46.50%
|
|||
|
44
|
46.00%
|
|||
|
45
|
45.50%
|
|||
|
46
|
45.00%
|
|||
|
47
|
44.50%
|
|||
|
48
|
44.00%
|
|||
|
49
|
43.58%
|
|||
|
50
|
43.17%
|
|||
|
51
|
42.75%
|
|||
|
52
|
42.33%
|
|||
|
53
|
41.92%
|
|||
|
54
|
41.50%
|
|||
|
55
|
41.08%
|
|||
|
56
|
40.67%
|
|||
|
57
|
40.25%
|
|||
|
58
|
39.83%
|
|||
|
59
|
39.42%
|
|||
|
60
|
39.00%
|
|||
|
61
|
38.67%
|
|||
|
62
|
38.33%
|
|||
|
63
|
38.00%
|
|||
|
64
|
37.67%
|
|||
|
65
|
37.33%
|
|||
|
66
|
37.00%
|
|||
|
67
|
36.67%
|
|||
|
68
|
36.33%
|
|||
|
69
|
36.00%
|
|||
|
70
|
35.67%
|
|||
|
71
|
35.33%
|
|||
|
72
|
0.00%
|
D-
EXHIBIT
E
[FORM
OF
MONTHLY SETTLEMENT REPORT]
|
Monthly
Analysis
|
|
New
Truck Term Loan Facility
|
|
Fleet
Owner Cash Flow
|
|
XXX
|
XXX
|
XXX
|
XXX
|
XXX
|
XXX
|
XXX
|
XXX
|
XXX
|
XXX
|
XXX
|
XXX
|
12
Month Total
|
||
|
Fleet
Owner Cash Flow
|
||||||||||||||
|
Commissionable
Gross Revenue
|
A
|
|||||||||||||
|
Dealer
& Marketing Co Commissions
|
B
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fleetowner
Commission
|
C
=
A - B
|
|||||||||||||
|
Damage
Waiver and Other Adjustments
|
D
|
|||||||||||||
|
No
Number Fleetowner Commission
|
E
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Warranty
Payments
|
F
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Adjusted
Fleetowner Commission
|
G
=
C + D + E
+
F
|
|||||||||||||
|
Maintenance
& Repair Expense
|
H
|
|||||||||||||
|
Licensing
Expense
|
I
|
|||||||||||||
|
Liability
Insurance Expense
|
J
|
|||||||||||||
|
Total
Expenses
|
K
=
H + I + J
|
|||||||||||||
|
Fleetowner
Cash Flow
|
L
=
G - K
|
E-
|
Monthly
Pool #1
|
Monthly
Pool #2
|
Monthly
Pool #3
|
Monthly
Pool #N
|
||
|
Payment
Date in:
|
Vehicle
Facility Value
|
Vehicle
Facility Value
|
Vehicle
Facility Value
|
Vehicle
Facility Value
|
Borrowing
Base
|
|
TBD
|
E-
|
Monthly
Analysis
New
Truck Term Loan Facility
Eligibility
Criteria and Minimum Fleet Owner Cash Flow Test
|
|||
|
Amount
|
Test
|
Compliance
|
|
|
1)
TTM Fleet Owner Cash Flow
|
|||
|
2)
Fleet Owner Cash Flow Ratio
|
Not
to exceed 4.0x
|
YES
|
|
|
3)
Commitment Amount
|
Up
to $150,000,000
|
||
|
4)
Borrowing Base
|
|||
|
5)
Current Outstanding Loans
|
Not
to exceed Borrowing Base
Not
to exceed Commitment Amount
|
YES
|
|
|
6)
EBITDA of AMERCO for the preceding 12 calendar months
|
|||
|
7)
Net income before preferred stock dividends of AMERCO for the preceding
12
calendar months
|
|||
|
8)
EBITDAR of AMERCO and its subsidiaries for the preceding 12 calendar
months
|
|||
|
9)
AMERCO'S lease and interest expenses for the preceding 12 calendar
months
|
|||
|
10)
Fixed Charge Ratio
|
|||
|
Payment
Waterfall
|
|
|
Fees,
Interest, Expenses
|
$
|
|
Targeted
Principal
|
$
|
|
All
Other Obligations
|
$
|
|
Total
amount to be withdrawn from Collection Sub-Account
|
$
|
E-
EXHIBIT
F
FORM
OF
NOTE
NOTE
$_______________________________________________,
2006
FOR
VALUE
RECEIVED, U-Haul Leasing & Sales Co., a Nevada corporation, U-Haul Co. of
Arizona, an Arizona corporation and U-Haul International, Inc., a Nevada
Corporation (collectively, the "Borrowers"),
jointly and severally, hereby unconditionally promise to pay to
_______________________, (the "Lender"),
by
wire transfer to the Collection Sub-Account or to such other location or account
in the United States as the Lender shall specify to the Borrower from time
to
time, in Federal or other immediately available funds in lawful money of the
United States the maximum principal amount of ________________________________
($______________) or, if less, the aggregate unpaid principal amount of all
Loans made to the Borrower pursuant to the Agreement (as defined herein) in
installments in such amounts and on such dates as are determined pursuant to
the
Agreement.
The
Borrowers, jointly and severally, promise to pay interest on the unpaid
principal amount of all Loans made by the Lender hereunder
and
under the Agreement from time to time from the date each such Loan is made
until
payment in full thereof, in like money at the rates and on the dates set forth
in the Agreement.
To
the
extent not due prior to such time, the entire unpaid principal balance of this
Note, together with accrued unpaid interest, shall be due and payable upon
the
occurrence of an Event of Default.
The
Lender shall (i) record on its books the
date and
amount of each Loan made by the Lender to the Borrower hereunder and (ii) prior
to any transfer of this Note (or, at the discretion of the Lender, at any other
time), endorse such information on the schedule attached hereto or any
continuation thereof. The failure of the Lender to make any such recordation
shall not affect the obligations of the Borrowers under this Note or the
Agreement.
This
Note
may be assigned or participated only in accordance with Section 12.04(b) of
the
Agreement. Any purported assignment or participation of this Note in violation
of such Section shall be null and void ab
initio.
This
Note
is the Note referred to in and is entitled to the benefits and subject to the
terms of, the Credit Agreement, dated as of May 31, 2006 (as amended,
supplemented or modified from time to time, the "Agreement"),
among
the Borrowers, U-Haul International, Inc., as Servicer/Manager and Guarantor,
AMERCO, as Guarantor, the Lender and Orange Truck Trust 2006, as Collateral
Agent. The Agreement contains, among other things, provisions for acceleration
of the maturity hereof upon the occurrence of certain stated events and also
for
prepayments on account of the principal hereof prior to the maturity hereof
upon
the terms and conditions specified therein.
F-
Except
as
otherwise specified in the Agreement, presentment, demand, protest and all
other
notices of any kind are hereby expressly waived
by the
Borrowers.
Capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in the Agreement.
THIS
NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH, AND BE GOVERNED BY, THE LAWS OF
THE
STATE OF NEW YORK.
|
U-HAUL
LEASING & SALES CO.,
as
a Borrower
|
|
By:
|
|
Name:
Title:
|
|
U-HAUL
CO. OF ARIZONA,
as
a Borrower
|
|
By:
|
|
Name:
Title:
|
|
U-HAUL
INTERNATIONAL, INC.
as
a Borrower
|
|
By:
|
|
Name:
Title:
|
F-
SCHEDULE
TO NOTE
|
Date
of
Loan
|
Amount
of Loan
|
Date
of Payment/
Prepayment
|
Amount
of Payment/
Prepayment
|
Initialed
by
|
F-
EXHIBIT
G
POOL
AMORTIZATION SCHEDULE
|
Pool
Amortization Schedule
|
|
|
(End
of)
Funding
Month
|
Advance
Rate
(%
of Vehicle Cost)
|
|
1
|
98.33%
|
|
2
|
96.67%
|
|
3
|
95.00%
|
|
4
|
93.33%
|
|
5
|
91.67%
|
|
6
|
90.00%
|
|
7
|
88.33%
|
|
8
|
86.67%
|
|
9
|
85.00%
|
|
10
|
83.33%
|
|
11
|
81.67%
|
|
12
|
80.00%
|
|
13
|
78.75%
|
|
14
|
77.50%
|
|
15
|
76.25%
|
|
16
|
75.00%
|
|
17
|
73.75%
|
|
18
|
72.50%
|
|
19
|
71.25%
|
|
20
|
70.00%
|
|
21
|
68.75%
|
|
22
|
67.50%
|
|
23
|
66.25%
|
|
24
|
65.00%
|
|
25
|
63.75%
|
|
26
|
62.50%
|
|
27
|
61.25%
|
|
28
|
60.00%
|
|
29
|
58.75%
|
|
30
|
57.50%
|
|
31
|
56.25%
|
|
32
|
55.00%
|
|
33
|
53.75%
|
|
34
|
52.50%
|
|
35
|
51.25%
|
|
36
|
50.00%
|
|
37
|
49.50%
|
|
38
|
49.00%
|
|
39
|
48.50%
|
|
40
|
48.00%
|
|
41
|
47.50%
|
|
42
|
47.00%
|
|
43
|
46.50%
|
|
44
|
46.00%
|
|
45
|
45.50%
|
|
46
|
45.00%
|
|
47
|
44.50%
|
|
48
|
44.00%
|
|
49
|
43.58%
|
|
50
|
43.17%
|
|
51
|
42.75%
|
|
52
|
42.33%
|
|
53
|
41.92%
|
|
54
|
41.50%
|
|
55
|
41.08%
|
|
56
|
40.67%
|
|
57
|
40.25%
|
|
58
|
39.83%
|
|
59
|
39.42%
|
|
60
|
39.00%
|
|
61
|
38.67%
|
|
62
|
38.33%
|
|
63
|
38.00%
|
|
64
|
37.67%
|
|
65
|
37.33%
|
|
66
|
37.00%
|
|
67
|
36.67%
|
|
68
|
36.33%
|
|
69
|
36.00%
|
|
70
|
35.67%
|
|
71
|
35.33%
|
|
72
|
0.00%
|
G-
EXHIBIT
H
[RESERVED]
H-
EXHIBIT
I
[FORM
OF
DEALERSHIP CONTRACT]
I-
EXHIBIT
J
[FORM
OF
RENTAL COMPANY CONTRACT]
J-
EXHIBIT
K
WIRE
INSTRUCTIONS
To
Lender:
|
Account
No.
|
521-11235
|
|
Bank:
|
Bank
of America
|
|
Address:
|
000
Xxxx 00xx
Xxxxxx
|
|
Xxx
Xxxx, XX 00000
|
|
|
ABA
No.:
|
000-000-000
|
|
Reference:
|
BTMU
Capital Corporation
|
To
Borrowers:
XX
Xxxxxx
Xxxxx
Phoenix,
AZ
ABA#
1221
0002 4
For
benefit of: U-Haul
Account
#
424903
K-
ANNEX
I
ELIGIBILITY
REQUIREMENTS
As
of any
date of determination, a Vehicle constitutes Eligible Vehicle Collateral if
such
Vehicle meets all of the requirements set forth below:
(i) such
Vehicle is a new motor vehicle with the specifications attached hereto as Annex
I-2 or as may be otherwise agreed by the Lender in writing, comprising part
of
Borrowers’ "U-Move" fleet;
(ii) such
Vehicle is in good working condition and the Servicer/Manager has performed
all
maintenance on such Collateral in accordance with industry
standards;
(iii) such
Vehicle had not been acquired by Borrowers more than 60 days prior to the date
on which such Vehicle is first added to a Monthly Pool hereunder;
(iv) the
Vehicle Cost for each Vehicle does not exceed $39,000 for each new GMC C5500
regular cab and chassis 2 wheel drive model JH truck and $25,750 for each new
Ford E-450 cutaway 2 wheel drive model EL8 truck;
(v) such
Vehicle is, when not rented by a consumer in the ordinary course of Borrowers’
business, located at U-Move rental locations in the United States;
(vi) the
Collateral Agent has a legal, valid and enforceable security interest in such
Vehicle and the interest of the Collateral Agent in the Collateral is perfected
under the applicable state motor vehicle law, prior to and enforceable against
all creditors of and purchasers from the Borrowers and all other Persons
whatsoever (other than the Lender and its successors and assigns);
and
(vii) the
Certificate of Title for such Vehicle has been amended or reissued to note
the
Lien of "ORANGE TRUCK TRUST 2006, AS COLLATERAL AGENT" in the manner prescribed
in the applicable jurisdiction, (B) if necessary to perfect in any jurisdiction,
the lien of the Collateral Agent shall be identified on a notice of lien or
other filing made in the appropriate state motor vehicle filing office, and
(C)
all applicable fees in connection with the activities described in the foregoing
clauses (A) and (B) shall be paid in full; provided,
that
notwithstanding clause (A), with respect to those jurisdictions that have a
twenty-five (25) character limitation when noting the names of lien holders,
such Certificates of Title shall note a Lien in favor of "ORANGE TRUCK TRUST
2006" or such other formulation acceptable to the Collateral Agent;
and
(viii) such
Vehicle conforms to any additional specifications as agreed to by Borrowers
and
Lender.
Capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in the Agreement to which this Annex I is
attached.
Annex
I-
ANNEX
I-2
2006
GMC C5500 TRUCK
U-HAUL
JH TRUCK
EQUIPMENT
SPECIFICATIONS
MODEL
C5500
LOPRO Cab & Chassis, 2 WD
BODY
& CHASSIS
20,000
lbs. GVWR
Front/Rear
Stabilizer Bars
Hydraulic
4-Wheel Disc Channel ABS System
POWER
TRAIN
50
State
Emission Certified
Vortec
8100 V8 Gas Engine
Electronic
Fuel Injection
Super
Engine Cooling
Xxxxxxx
2200 Series Automatic Transmission w/ OD
Power
Steering
WHEELS
& TIRES
(6)
LT245/70R19.5 Premium Front and Rear “XZE” Tires
(6)
19.5
X 6.75 Steel Wheels
INTERIOR
OPTIONS
Air
Conditioning
AM/FM
Clock Radio
Cloth
Bench Seat w/ Outboard Seating and Integral Headrests
Driver’s
Side Airbag
EXTERIOR
OPTIONS
Grill
and
Front Bumper Painted Argent
Sealed
Beam Halogen Headlamps
Dual
Outside Mirrors
OTHER
ADD-ONS
Michelin
or Goodyear Brand Tires
Steel
Valves and Steel Caps
57
Gallon
Fuel Tank
Auxiliary
Transmission Oil Cooler
2
yr
Unlimited Mile Warranty
5yr/50K
mile Emission Warranty.
5yr
Xxxxxxx 2200 Series Transmission Warranty
26'
VAN BOX SPECIFICATIONS
1580
(Approximately) Cubic Feet Capacity
Fiberglass
Reinforced Plywood (FRP) Construction
Rounded
Aluminum Extruded Corners for Improved Structural Strength and
Aerodynamics
Aluminum
Floor and Roof
Class
3
Frame Mounted Hitch
Rollup
Rear Door
Aluminum
Ramp
Tie
Downs
and Rub Rails
LED
Lighting Package
Annex
I-2-1
2006
FORD E 450 TRUCK
U-HAUL
DC (50 STATE EMISSION CERTIFIED)
EQUIPMENT
SPECIFICATIONS
MODEL
E
450
Commercial Cutaway Cab & Chassis, 158" WB, 2 WD
BODY
& CHASSIS
14,050
lbs. GVWR
Front
Stabilizer Bars w/ HD Front and Rear Shocks
Power
Brakes with Front and Rear ABS
POWER
TRAIN
50
State
Emission Certified
6.8
Liter
V10 Gas Engine
Electronic
Fuel Injection
Tow
Haul
Auto Start
Super
Engine Cooling
Electronic
5-Speed Automatic Transmission
Power
Steering
WHEELS
& TIRES
(6)
LT225/75R16E Front and Rear Tires
(6)
4
Hand Hole 16X6 Steel Wheels
INTERIOR
OPTIONS
Air
Conditioning
AM/FM
Clock Radio
Cloth
Bench Seat w/ Outboard Seating and Integral Headrests
Driver
and Passenger Air Bags with Deactivation button
EXTERIOR
OPTIONS
Grill
and
Front Bumper Painted Argent
Sealed
Beam Halogen Headlamps
Dual
Electric Horns
Dual
Velvac Mirrors - Installed by U-Haul
COLOR
SCHEME
U-Haul
Special Paint 107
OTHER
ADD-ONS
Goodyear
or Michelin Brand Tires
Steel
Valves and Plastic Caps
37
Gallon
Aft-of-Axle Mounted Fuel Tank
Delete
Xxxx Assembly and Tools
Delete
Roof Marker
Delete
Interior Rear View Mirrors
Xxxx
Axle
with Vent Tube Extension
Auxiliary
Transmission Oil Cooler
3
yr/36,000 Mile Bumper to Bumper Warranty
5
yr/50,000 Mile Emission Defect Warranty
5
yr
Corrosion Warranty
14’
VAN BOX SPECIFICATIONS
Approximately
720 Cubic Feet Capacity
Fiberglass
Reinforced Plywood (FRP) Construction
Rounded
Aluminum Extruded Corners for Improved Structural Strength and
Aerodynamics
Flat
Aluminum Floor without Wheel Xxxxx
6000
lb
Frame Mounted Hitch
Rollup
Rear Door
Convenient
Work Saving Ramp
Tie
Down
and Rub Rails for Added Cargo Protection
