OMNIBUS TERMINATION AND RELEASE (Aged Truck Revolving Loan Facility)
Execution
Copy
(Aged
Truck Revolving Loan Facility)
This
OMNIBUS TERMINATION AND RELEASE (this “Termination”), dated
as of February 8, 2008 is made by and among by and 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, and XXXXXXX
XXXXX COMMERCIAL FINANCE CORP., as Lender.
Recitals:
WHEREAS,
pursuant to that certain Amended and Restated Credit Agreement, dated as of
March 12, 2007 (as amended, the “Credit Agreement”),
by and among the parties hereto, the Lender has from time to time agreed to
make
to the Borrowers certain Loans, which Loans are evidenced by the
Note;
WHEREAS,
pursuant to that certain Guarantee, dated as of June 28, 2005, made by the
Guarantor in favor of the Lender (as amended, the “Guarantee”), the
Guarantor has guaranteed to the Lender the due and complete payment and
performance by the Borrowers of their respective obligations under the Credit
Agreement and the other Loan Documents;
WHEREAS,
pursuant to that certain Amended and Restated Security Agreement, dated as
of
March 12, 2007, by and between the Borrowers and the Lender (“Security Agreement”),
in order to secure the obligations of the Borrowers under the Credit Agreement,
the Borrowers have granted a first priority perfected security interest to
the
Lender in certain Vehicles and other Collateral; and
WHEREAS,
the Borrowers, the Guarantor and the Lender have mutually agreed to terminate
the Facility and each of their respective obligations under the Credit
Agreement, the Security Agreement, the Guarantee, and the other Loan Documents
and Security Documents (collectively, the “Transaction
Documents”).
NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto, intending
to
be legally bound, agree as follows:
SECTION
1.
Definitions. Capitalized
terms used in this Termination and not otherwise defined herein shall have
the
respective meanings assigned to them in the Credit Agreement (such definitions
to be equally applicable to both the singular and the plural forms of the terms
defined). Any term defined by reference to an agreement, instrument
or other document shall have the meaning so assigned to it whether or not such
document is in effect. The words “hereof”, “herein” and “hereunder”
and words of similar import when used in this Termination shall refer to this
Termination as a whole and not to any particular provision of this
Termination.
SECTION
2.
Payment of Outstanding
Amount of Loans. Each of the parties hereto hereby represent
and acknowledge that on the date hereof there are no Loans
outstanding.
SECTION
3.
Cancellation of
Notes;
Discharge of Borrowers’ and Guarantor’s Obligations. After the
date hereof, the Lender shall promptly deliver the Note to the Borrowers and
the
Borrowers shall cancel the Note. The Lender hereby:
(i)
acknowledges that no unpaid amounts remain payable by the Borrowers or the
Guarantor to or on behalf of the Lender pursuant to the Transaction
Documents;
(ii)
releases (A) its security interest in any and all Collateral granted under
the
Security Agreement and other Security Documents, and (B) to the Borrowers
without recourse and without any representation or warranty of any kind, all
right, title and interest, if any, in and to any and all
Collateral;
(iii)
agrees that its interests under the Transaction Documents shall and hereby
do
terminate; and
(iv)
cancels and discharges any and all of the Borrowers’ respective liabilities
related to the Note or any and all obligations and liabilities owed to the
Lender under the other Transaction Documents;
provided,
however,
that the
Lender acknowledges and agrees that in accordance with Section 12.05 of the
Credit Agreement, the provisions of Sections 5.09, 5.10 and 12.03 and Article
XI
of the Credit Agreement shall survive and remain in full force and effect
notwithstanding the termination of the Credit Agreement and the other
Transaction Documents.
SECTION
4.
Discharge of Lender’s
Obligations. Each Borrower and the Guarantor, individually,
hereby:
(i)
agrees that its respective interests under the Transaction Documents shall
and
hereby do terminate;
(ii)
cancels and discharges any and all of the Lender’s obligations and liabilities
owed to it under the Transaction Documents, including but not limited to the
Commitments;
provided,
however,
that each of
the Borrowers and the Guarantor acknowledges and agrees that in accordance
with
Section 12.05 of the Credit Agreement, the provisions of Sections 5.09, 5.10
and
12.03 and Article XI of the Credit Agreement shall survive and remain in full
force and effect notwithstanding the termination of the Credit Agreement and
the
other Transaction Documents.
SECTION
5.
Termination Payment;
No Claims. On the date hereof, the Lender agrees to pay to
U-Haul International, Inc. an amount equal to $1,777,000.00 (the “Termination Payment”)
by wire transfer of immediately available funds to U-Haul International Inc.’s
account at: XX Xxxxxx Chase Bank; Phoenix, AZ; ABA# 1221 0002 4; For benefit
of:
U-Haul; Account # 42 4903. Each Borrower and the Guarantor,
individually, hereby represents and warrants that upon receipt by U-Haul
International of the Termination Payment, such person has no claim of any kind
against the Lender in connection with this Termination or any of the Transaction
Documents.
SECTION
6.
Further Assurances;
Costs. Each party hereto agrees that it shall, at any time and
from time to time, promptly and duly execute and deliver any and all such
instruments and documents of further assurance and all such supplemental
instruments and take such further action as the Borrowers may reasonably request
to carry out the purposes and intent of this Termination. Without
limiting the generality of the foregoing, the Lender hereby authorizes each
of
the Borrowers, the Custodian and the Servicer/Manager to (i) file all necessary
termination statements relating to UCC-1 financing statements filed in
connection with the Transaction Documents, (ii) amend or reissue the Certificate
of Title for each Vehicle comprising Collateral that notes the lien of the
Lender under the Transaction Documents, or (iii) terminate any notice of lien
or
other filing made in a state motor vehicle filing office relating to the lien
of
the Lender under the Transaction Documents. The Lender acknowledges
that the Limited Power of Attorney, dated August 9, 2005, given by the Lender
to
U-Haul Co. of Arizona shall continue in effect for as long as reasonably
necessary to carry out the authorizations described in the preceding sentence,
not to exceed one year from the date hereof, whereupon it shall be deemed
revoked. Each party shall bear its own costs and expenses incurred in
connection with this Termination, including but not limited to any fees and
expenses of outside counsel, and any filing fees or similar costs related to
terminating financing statements, removing lien notations from or reissuing
Certificates of Title, or terminating notices of liens or other filings made
in
various state motor vehicle filing offices.
SECTION
7.
Binding
Effect. This Termination shall be binding upon and inure to
the benefit of the parties hereto and their respective successors and
assigns.
SECTION
8.
Execution in
Counterparts. This Termination may be executed in any number
of counterparts and by different parties hereto in separate counterparts, each
of which when so executed shall be deemed to be an original and all of which
when taken together shall constitute one and the same agreement.
SECTION
9.
Governing
Law. This Termination shall be construed in all respects in
accordance with, and governed by the internal laws (as opposed to conflicts
of
law provisions) of the State of New York. Whenever possible, each provision
of
this Termination shall be interpreted in such a manner as to be effective and
valid under applicable law, but if any provision of this Termination shall
be
prohibited by or invalid under applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without
invalidating the remainder of such provisions or the remaining provisions of
this Termination.
[Signature
Page
Follows]
IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Omnibus
Termination and Release as of the day and year first above set
forth.
U-HAUL
LEASING & SALES CO., as a Borrower
U-HAUL
CO. OF ARIZONA, as a Borrower
U-HAUL
INTERNATIONAL, INC., as a Borrower, as Servicer/Manager, Guarantor and as
Custodian
XXXXXXX
XXXXX COMMERCIAL FINANCE CORP., as Lender
