EXHIBIT 10.71
AMERCO REVOLVER LENDERS RESTRUCTURING AGREEMENT
This AMERCO Revolver Lenders Restructuring Agreement (this "Agreement") is
made and entered into as of August __ 2003, by AMERCO, a Nevada corporation
("AMERCO"), JPMorgan Chase Bank, as Administrative Agent under the Credit
Agreement described below (the "Administrative Agent"), and the lenders under
the Credit Agreement described below (the "Revolver Lenders"). AMERCO, the
Administrative Agent and the Revolver Lenders are collectively referred to
herein as the "Parties" and individually as a "Party."
RECITALS
WHEREAS, AMERCO, the Administrative Agent and the Revolver Lenders have
engaged in good faith negotiations with the objective of reaching an agreement
with regard to the restructuring of the indebtedness of AMERCO under that
certain 3-Year Credit Agreement dated as of June 28, 2002 (as amended to date,
the "Credit Agreement"), among AMERCO, the Revolver Lenders and JPMorgan Chase
Bank, as Administrative Agent for the Revolver Lenders, and the recapitalization
of AMERCO and its subsidiaries.
WHEREAS, on June 20, 2003, AMERCO filed for relief under Chapter 11 of
Title 11 of the United States Code, 11 U.S.C. Section Section 101, et. seq. (the
"Bankruptcy Code"), which case is pending before the United States Bankruptcy
Court for the District of Nevada (the "Bankruptcy Court") and on August 13,
2003, AMERCO Real Estate Company ("AREC") filed for relief under Chapter 11 of
the Bankruptcy Code, which case is also pending before the Bankruptcy Court.
WHEREAS, AMERCO, the Administrative Agent and the Revolver Lenders desire
to implement the financial restructuring consistent with this Agreement and the
term sheet attached hereto as Exhibit A (the "Term Sheet," and the restructuring
and recapitalization contemplated therein, the "Financial Restructuring").
WHEREAS, in order to implement the Financial Restructuring, AMERCO
intends, subject to the terms and conditions of this Agreement and the Term
Sheet, to prepare a plan of reorganization (the "Plan") and a disclosure
statement (the "Disclosure Statement")1 consistent with the terms set forth in
this Agreement and the Term Sheet, to file and seek approval of such Disclosure
Statement, to solicit acceptances of such Plan, and to seek confirmation of such
Plan in its administratively consolidated Chapter 11 cases, as expeditiously as
possible under the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure
(the "Bankruptcy Rules").
WHEREAS, the Administrative Agent and each consenting Lender
(collectively, the "Consenting Parties") owns or controls the aggregate
principal amount of revolving loans under the Credit Agreement ("Existing
Loans"), in each case as identified on the signature pages hereto.
WHEREAS, in order to facilitate and expedite the implementation of the
Financial Restructuring, the Administrative Agent and the Consenting Parties are
prepared, subject to the terms and conditions of this Agreement, to vote their
Claims (as that term is defined in the Bankruptcy Code) to accept the Plan.
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1 For purposes of this Agreement, the terms "Plan" and "Disclosure Statement"
shall mean a Plan and Disclosure Statement consistent with the terms set forth
in this Agreement and the Term Sheet.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
1. Recitals. Each of the foregoing Recitals is incorporated hereby as if
fully set forth herein.
2. Voting in Favor of the Plan. Each Consenting Party agrees to timely
vote its claim under the Credit Agreement to accept the Plan and not to revoke
or withdraw such vote. The Parties understand that the Plan and all related
documents will contain customary provisions for transactions of the nature set
forth herein and in the Term Sheet. Each Consenting Party to this Agreement
agrees not to elect on its ballot for its Credit Agreement Claim to preserve any
rights, if any, that such Party may have that may be affected by the releases
provided for under the Plan.
3. Restrictions on Transfer. Each Consenting Party hereby agrees, so long
as this Agreement remains in effect, not to (i) sell, transfer, assign, pledge,
or otherwise dispose of any of its Existing Loans, in whole or in part, or any
interest therein, unless the transferee accepts such claims subject to the terms
of this Agreement, or (ii) grant any proxies, deposit any of its Existing Loans
into a voting trust, or enter into a voting agreement with respect to any of the
Existing Loans unless such arrangement provides for compliance herewith. In the
event that a Consenting Party transfers such Existing Loans prior to the last
date for voting on the Plan, such transferee shall comply with and be subject to
all the terms of this Agreement as long as such Agreement remains in effect,
including, but not limited to, such Consenting Party's obligations to vote its
Existing Loans in favor of the Plan and shall, as a condition precedent to such
transfer, execute an agreement on terms substantially identical to the terms of
this Agreement and, upon commencement of the solicitation of votes to accept or
reject the Plan, a ballot for the Existing Loan indicating its acceptance of the
Plan.
4. AMERCO Agreements. During the term of this Agreement, AMERCO hereby
agrees to the following:
(a) AMERCO shall use its commercially reasonable efforts to have the
Disclosure Statement approved by the Bankruptcy Court, and to use its
commercially reasonable efforts to obtain an order of the Bankruptcy Court
confirming the Plan, in each case as expeditiously as possible under the
Bankruptcy Code and the Bankruptcy Rules and consistent with the terms and
conditions set forth in this Agreement and in the Term Sheet.
(b) AMERCO shall use its commercially reasonable efforts to obtain
approval by the Bankruptcy Court of the $300,000,000 debtor-in-possession
financing facility (the "DIP Facility") based on the Term Sheet (the
"Foothill Term Sheet") provided to AMERCO by Xxxxx Fargo Foothill, Inc.,
as lead arranger, collateral agent, syndication agent and administrative
agent ("Foothill"), and an emergence facility of approximately
$650,000,000 also to be provided by Foothill on the confirmation and
consummation of the Plan (the "Emergence Facility"). Notwithstanding the
references in this Agreement or the Term Sheet to Foothill and the
Foothill Term Sheet, AMERCO may select an alternative
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senior lender or lenders to provide the DIP Facility or the Emergence Facility
under terms substantially similar to the Foothill Term Sheet.
5. Support of the Plan. As long as this Agreement remains in effect,
AMERCO and each Consenting Party (acting only in its capacity as the holder of
an Existing Loan) will: (i) use its commercially reasonable efforts to obtain
confirmation of the Plan in accordance with the Bankruptcy Code as expeditiously
as possible; and (ii) take all commercially reasonable, necessary and
appropriate actions to achieve confirmation including communicating the
Consenting Holders' support of the Plan to the holders of allowed impaired
claims. As long as this Agreement remains in effect, no Consenting Party, acting
in its capacity as a holder of an Existing Loan, shall (a) object to
confirmation of the Plan or otherwise commence any proceeding to oppose or alter
the Plan or any other reorganization related documents or agreements (the "Plan
Documents"), which shall include, but not be limited to, any documents or
agreements related to the DIP Facility and the Emergence Facility, to the extent
such documents, in the reasonable judgment of the Consenting Parties,
substantially conform to the terms of the Foothill Term Sheet, (b) vote for,
consent to, support or participate in the formulation of any other plan of
reorganization or liquidation proposed or filed or to be proposed or filed in
any Chapter 11 or Chapter 7 case commenced in respect of AMERCO, (c) directly or
indirectly seek, solicit, support or encourage any other plan, sale, proposal or
offer of dissolution, winding up, liquidation, reorganization, merger or
restructuring of AMERCO or any of its subsidiaries that could reasonably be
expected to materially prevent, delay or impede the successful restructuring of
AMERCO as contemplated by the Plan or the Plan Documents, (d) object to the
Disclosure Statement or the solicitation of consents to the Plan, or (e) take
any other action that is inconsistent with, or that would materially delay
confirmation of, the Plan.
6. Acknowledgment. This Agreement is not, and shall not be deemed to be, a
solicitation for consents to the Plan. The acceptances of the Consenting Parties
will not be solicited until such Parties have received the Disclosure Statement
approved by order of the Bankruptcy Court as continuing "adequate information,"
as such term is defined in Section 1125(a)(1) and (2) the Bankruptcy Code, the
Plan and related ballot.
7. Disclaimer. The Parties agree that a copy of this Agreement shall be
filed with the Bankruptcy Court.
8. Termination of Agreement.
(a) Upon the effectiveness of this Agreement in accordance with
Section 23, the obligations of AMERCO, the Consenting Parties and the
Administrative Agent hereunder shall remain effective and binding until
the "Effective Date" (as defined in the Term Sheet) of the Plan unless
terminated earlier pursuant to this Section 8.
(b) If any of the following occurs, one or more Revolver Lenders
whose claims in respect of the Existing Loans equal or exceed two-thirds
in amount of the total of the Existing Loans, may provide written notice
to AMERCO of the termination of this Agreement, and upon the receipt of
such notice by AMERCO, the obligations of the Parties hereunder shall
immediately and automatically terminate and shall be of no further force
or effect, which notice may be given by any such Revolver Lenders:
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(1) the Plan or any Plan Document provides for or is modified to
provide for treatment of the Existing Loans that is different in any material
adverse respect from the treatment described in the Term Sheet;
(2) the Plan or any Plan Document provides or is modified to provide
for the treatment of the Senior Notes, Series A, due April 30, 2012 and Senior
Notes, Series B, due April 30, 2007 (collectively, the "Notes"), issued by AREC,
under that certain Note Purchase Agreement dated March 15, 2002, that is
different in any material adverse respect from the treatment described in that
certain Restructuring Agreement dated as of August 12, 2003, among the holders
of the Notes and AREC, a copy of which has been filed with the Bankruptcy Court.
(3) AMERCO or AREC pays to the Indenture Trustee on behalf of the
holders of the Notes any cash from the DIP Facility.
(4) AMERCO fails to file the Plan and Disclosure Statement on or
before October 15, 2003;
(5) the Disclosure Statement is not approved on or before December
15, 2003;
(6) the Plan is not confirmed on or before February 27, 2004;
(7) the Plan is not consummated on or before March 15, 2004;
(8) the Bankruptcy Court does not approve the Emergence Facility as
part of the confirmation and consummation of the Plan;
(9) the revolving credit facility exceeds $200,000,000 in face
amount and the "Term Loan A Notes" exceeds $350,000,000 in face amount (as such
terms are defined in the attached Term Sheet);
(10) the "Term Loan B Notes" exceeds $200,000,000 in face amount (as
such term is defined in the attached Term Sheet);
(11) the Bankruptcy Court denies confirmation of the Plan;
(12) the Chapter 11 case of AMERCO or AREC is converted to a case
under Chapter 7 of the Bankruptcy Code or a trustee is appointed under any
chapter of the Bankruptcy Code or an examiner with expanded powers to operate
the business is appointed for AMERCO or AREC;
(13) any written representation or warranty made by AMERCO or AREC
to the Administrative Agent or the Revolver Lenders in this Agreement or the
Term Sheet (including without limitation, representations relating to AMERCO's
or AREC's current or future financial performance or AMERCO's FY2003 Form 10-K)
is false or intentionally misleading in any material respect when made;
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(14) a default occurs under the DIP Facility and is not waived by
the lenders under the DIP Facility within fifteen business days after such
lenders become aware of such default;
(15) there is a material breach of any provision of this Agreement;
(16) the Bankruptcy Court finds or holds unenforceable this
Agreement, the Term Sheet, or any material provision hereof or thereof;
(17) the estates of AMERCO and any other entity, including, without
limitation, AREC, are substantively consolidated, other than through the Plan;
(18) a voluntary or involuntary bankruptcy, receivership, or
assignment for the benefit of creditors proceeding is commenced by or against
U-Haul International, Inc. or any other material subsidiary of AMERCO or AREC,
other than as part of the implementation of the Plan; or
(19) a "Termination Event" occurs under the "Final Order Authorizing
Consensual Use Of Cash Collateral And Granting Adequate Protection," entered
August 14, 2003, in the AMERCO Chapter 11 case (the "Cash Collateral Order")
(other than the Termination Event set forth in paragraph 11(b) of such Order).
(c) Except as set forth in Section 8(d), no Party shall have any
liability to the other or any other person as a result of the termination
of such Party's obligations hereunder in accordance with this Section 8.
(d) If this Agreement is found to be unenforceable by the Bankruptcy
Court or if AMERCO materially breaches its obligations under this
Agreement or the Term Sheet, each of the Administrative Agent, the
Revolver Lenders and AMERCO hereby agrees that the Revolver Lenders shall
be entitled to receive accrued and unpaid default interest on the
principal amount owed to the Revolver Lenders as set forth in the Credit
Agreement and related documents, from the effectiveness of this Agreement
up to the confirmation and consummation of a plan of reorganization in the
Chapter 11 Case and AMERCO shall not object to such claim being an allowed
claim in the Chapter 11 Case.
9. Good Faith Negotiation of Documents. Each Party hereby further
covenants and agrees to negotiate the definitive documents relating to the Plan
Documents, in good faith, and in any event, in all material respects consistent
with the Term Sheet.
10. Forbearance. As long as this Agreement shall remain in effect, each
Consenting Party hereby severally agrees to forbear (and where necessary cause
the forbearance, including by giving all necessary instructions to the
Administrative Agent in accordance with the Credit Agreement) from exercising
any rights or remedies it may have under the Credit Agreement and all related
documents, applicable law, or otherwise with respect to any default with respect
to the Existing Loans or the Credit Agreement, whether presently existing or
hereafter arising.
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11. Representations and Warranties. Each Consenting Party (and with
respect to sections (a)-(e), AMERCO) represents and warrants that the following
statements are true, correct and complete as of the date hereof:
(a) Corporate Power and Authority. It is duly organized, validly
existing, and in good standing under the laws of the state of its
organization, and has all requisite corporate, partnership or limited
liability company power and authority to enter into this Agreement and to
carry out the transactions contemplated by, and perform its respective
obligations under, this Agreement.
(b) Authorization. The execution and delivery of this Agreement and
the performance of its obligations hereunder have been duly authorized by
all necessary corporate, partnership or limited liability company action
on its part.
(c) No Conflicts. The execution, delivery and performance by it of
this Agreement do not and shall not (i) violate any provision of law, rule
or regulation applicable to it or any of its subsidiaries or its
certificate of incorporation or bylaws or other organizational documents
or those of any of its subsidiaries or (ii) conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a
default under any material contractual obligation to which it or any of
its subsidiaries is a party.
(d) Governmental Consents. The execution, delivery and performance
by it of this Agreement do not and shall not require any registration or
filing with consent or approval of, or notice to, or other action to, with
or by, any federal, state or other governmental authority or regulatory
body, other than the approval of the Bankruptcy Court, in the case of
AMERCO.
(e) Binding Obligation. Subject to the provisions of Sections 1125
and 1126 of the Bankruptcy Code, this Agreement is the legally valid and
binding obligation of AMERCO, enforceable against it in accordance with
its terms.
(f) Owner of Claims. As of the date hereof, the Consenting Parties
are the beneficial owners of, or holders of investment authority over, the
Existing Loans that each Consenting Party has agreed to vote in favor of
the Plan.
(g) Acknowledgment of Risks. Each Consenting Party has received and
reviewed this Agreement and all schedules and exhibits hereto and has
received all such information as it deems necessary and appropriate to
enable it to evaluate whether to become a Consenting Party.
12. Further Acquisition of Claims. This Agreement shall in no way be
construed to preclude any of the Revolver Lenders or the Administrative Agent
from acquiring additional Existing Loans. However, any such additional Existing
Loans so acquired shall automatically be deemed to be subject to the terms of
this Agreement.
13. Amendments. This Agreement may not be modified, amended or
supplemented without the prior written consent of AMERCO, the Administrative
Agent and the Revolver
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Lenders whose claims in respect of the Existing Loans equal or exceed two-thirds
in amount of the total of the Existing Loans.
14. Governing Law; Jurisdiction. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York, without
regard to any conflicts of law provision which would require the application of
the law of any other jurisdiction. By its execution and delivery of this
Agreement, each of the Parties hereto hereby irrevocably and unconditionally
agrees for itself that any legal action, suit or proceeding against it with
respect to any matter under or arising out of or in connection with this
Agreement or for recognition or enforcement of any judgment rendered in any such
action, suit or proceeding, may be brought in the United States District Court
for the District of Nevada. By execution and delivery of this Agreement, each of
the Parties hereto irrevocably accepts and submits itself to the nonexclusive
jurisdiction of such court, generally and unconditionally, with respect to any
such action, suit or proceeding. Notwithstanding the foregoing consent to Nevada
jurisdiction, each of the Parties hereto hereby agrees that the Bankruptcy Court
shall have exclusive jurisdiction of all matters arising out of or in connection
with this Agreement.
15. Specific Performance. It is understood and agreed by each of the
Parties hereto that money damages would not be a sufficient remedy for any
breach of this Agreement by any Party and each non-breaching Party shall be
entitled to specific performance and injunctive or other equitable relief as a
remedy of any such breach.
16. Headings. The headings of the sections, paragraphs and subsections of
this Agreement are inserted for convenience only and shall not affect the
interpretation hereof.
17. Successors and Assigns. This Agreement is intended to bind *and inure
to the benefit of the Parties and their respective successors, assigns, heirs,
executors, administrators and representatives.
18. Prior Negotiations. This Agreement and the Term Sheet supersede all
prior negotiations with respect to the subject matter hereof.
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same Agreement. Delivery of an executed counterpart of
this Agreement by facsimile shall be equally as effective as delivery of the
original executed counterpart of this Agreement.
20. No Third-Party Beneficiaries. Unless expressly stated herein, this
Agreement shall be solely for the benefit of the Parties hereto and no other
person or entity shall be a third-party beneficiary hereof, other than
successors and assigns of any Party.
21. Consideration. It is hereby acknowledged by the Parties hereto that no
consideration shall be due or paid to the Administrative Agent or any Lender for
its agreement to vote to accept the Plan in accordance with the terms and
conditions of this Agreement.
22. Notices. (a) All notices hereunder to be served to AMERCO shall be
deemed given if in writing and delivered or sent by telecopy, courier or by
registered or certified mail
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(return receipt requested) to the following addresses or telecopier numbers (or
at such other addresses or telecopier numbers as shall be specified by like
notice):
AMERCO
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxx Xxxxxxxx
Fax:000-000-0000
with copy to:
SQUIRE, XXXXXXX & XXXXXXX L.L.P.
00 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Fax:000-000-0000
(b) All notices hereunder to be served to a Consenting Party shall
be deemed given if in writing and delivered or sent by telecopy, courier
or by registered or certified mail (return receipt requested) to the
address or telecopier number for such Consenting Party set forth above its
signature hereto (or at such other addresses or telecopier numbers as
shall be specified by like notice), with a copy to:
SKADDEN, ARPS, SLATE, XXXXXXX & XXXX LLP
000 Xxxxx Xxxxx
Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx, Esq.
Fax:000-000-0000
23. Effectiveness. This Agreement shall become effective when AMERCO has
received counterparts of this Agreement duly executed and delivered by AMERCO,
the Administrative Agent and Revolver Lenders holding at least two-thirds in
principal in amount of the Existing Loans; provided that such condition of
effectiveness may be waived by the written consent of each of AMERCO and the
Consenting Parties.
24. Cash Collateral Order Unaffected. Nothing in this Agreement supercedes
any provision in the Cash Collateral Order or is intended to constitute a
consent by any Consenting Party beyond the consents under the Cash Collateral
Order.
[Signature page follows]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed and delivered by its duly authorized officer as of the date first
above written.
AMERCO
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
[Additional signature pages follow]
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JPMORGAN CHASE BANK,
AS ADMINISTRATIVE AGENT
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
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REVOLVER LENDERS:
By:
---------------------------------
Name:
----------------------------
Title:
---------------------------
Principal Amount of Loans Owned or
Controlled: $
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EXHIBIT A
AMERCO REVOLVER LENDERS
TERM SHEET
This Term Sheet describes the principal terms of the proposed
restructuring and recapitalization of certain of the outstanding indebtedness of
AMERCO, a Nevada corporation ("AMERCO"), pursuant to a plan of reorganization
(the "Plan") in accordance with (a) Chapter 11 of Title 11 of the United States
Code (the "Bankruptcy Code") and (b) the terms and conditions contained herein.
This Term Sheet has been produced for discussion and settlement purposes only
and is not an offer with respect to any securities or a solicitation of
acceptances of the Plan.
CERTAIN DEFINITIONS
"AREC" means Amerco Real Estate Company.
"Effective Date" means the date the Plan becomes effective in
accordance with its terms and conditions.
"Term Loan A Notes" means the notes to be issued by the Debtors, as
reorganized, jointly and severally, on the Effective Date of the Plan, in the
aggregate face amount not to exceed $350,000,000.
"Term Loan B Notes" means the notes to be issued by the Debtors, as
reorganized, jointly and severally, on the Effective Date of the Plan, in the
aggregate face amount not to exceed $200,000,000.
"Debtor or Debtors" means, collectively, AMERCO, AREC and any other
affiliates or subsidiaries of AMERCO or AREC that file voluntary petitions for
relief under Chapter 11 of the Bankruptcy Code, other than PAC Fourteen, Inc.
and PAC Fifteen, Inc.
"New Notes" means, collectively, the Term Loan A Notes and the Term
Loan B Notes.
"Noteholders" means the holders of the Notes.
CAPITALIZED TERMS USED HEREIN AND NOT OTHERWISE DEFINED SHALL HAVE THE
RESPECTIVE MEANINGS ASCRIBED TO THEM IN THE AMERCO-REVOLVER LENDERS
RESTRUCTURING AGREEMENT BY AND AMONG AMERCO, THE ADMINISTRATIVE AGENT AND THE
REVOLVER LENDERS SIGNATORY THERETO (THE "RESTRUCTURING AGREEMENT").
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TREATMENT OF REVOLVER LENDERS
CLASSIFICATION: The Plan will place the claims of the Revolver
Lenders under the Credit Agreement in a single class
or subclass, and such class or subclass will be
impaired and entitled to vote on the Plan.
CASH DISTRIBUTIONS FROM Upon execution of the Restructuring
DIP FACILITY: Agreement, the Revolver Lenders will receive
a cash distribution of $51,250,000 (25% of
the principal amount of the Existing Loans).
CASH DISTRIBUTIONS ON On the Effective Date of the Plan, the
EFFECTIVE DATE: Revolver Lenders will receive an additional
cash distribution of $71,750,000 (35% of the
principal amount of the Existing Loans), plus
additional cash in the amount of any and all accrued
but unpaid interest on the Existing Loans up to the
Effective Date, payable at the non-default rate.
NEW NOTES: $48,400,000 (23.6% of the principal amount
of the Existing Loans) exchanged for and
satisfied with Term Loan A Notes under the
Emergence Facility in the amount (net after
any discount) of $48,400,000, subject to the
Syndication Terms set forth in this Term
Sheet.
$33,600,000 (16.4% of the principal amount of the
Existing Loans) exchanged for and satisfied with
Term Loan B Notes under the Emergence Facility
having an aggregate Market Value (as defined below)
of $33,600,000, subject to the Syndication Terms set
forth in this Term Sheet.
TERMS OF NEW NOTES: As the new notes are to be issued under the
Emergence Facility, the new notes (under
both Term Loan A and Term Loan B) will be
identical to the notes issued under the
Emergence Facility and will be issued under
the same credit agreement, note purchase
agreement, or comparable governing document,
and will be governed by and entitled to all
of the same benefits and terms as the Term
Loan A Notes and Term Loan B Notes,
including borrowers, guarantors, maturity
date, early termination provisions,
collateral, lien priority, interest rate,
fees, and all other terms of the Foothill
Term Sheet, subject to the qualification
that the maturity of the New Notes may not
exceed 5 years from date of issuance;
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FEES: On the Effective Date, the Revolver Lenders
will receive 2% of the par amount of Term
Loan B Notes actually issued to the Revolver
Lenders, in addition to any fees provided
under the Foothill Term Sheet generally to
buyers of any of the Term Loan A or Term
Loan B Notes.
CLOSING CONDITIONS -Term Loan A and Term Loan B shall be subject to
conditions precedent substantially similar to those
set forth in the Foothill Term Sheet.
-Treatment in the Chapter 11 case of the Noteholders
will be substantially as set forth in that certain
Restructuring Agreement dated as of August 12, 2003,
among the Noteholders and AREC (the "Noteholders
Restructuring Agreement").
- Treatment in the Chapter 11 case of AMERCO's
general unsecured claims will provide for cash not
in excess of 35% of their allowed general unsecured
claims, with the balance thereof to be satisfied
through a combination of Term Loan B Notes and other
securities with a priority position junior to the
Term Loan B Notes in the collateral securing the
Term Loan B Notes.
RELEASE AND EXCULPATION The Plan will contain release and
PROVISIONS: exculpation provisions in substantially the
following form:
1. As of the Effective Date, the Debtors and
reorganized Debtors will be deemed to forever
release, waive and discharge all claims,
obligations, suits, judgments, damages, demands,
debts, rights, causes of action and liabilities
whatsoever in connection with or related to the
Debtors, the Chapter 11 cases or the Plan (other
than the rights of the Debtors or reorganized
Debtors to enforce the Plan and the contracts,
instruments, releases, indentures, and other
agreements or documents delivered thereunder)
whether liquidated or unliquidated, fixed or
contingent, matured or unmatured, known or unknown,
foreseen on unforeseen, then existing or thereafter
arising, in law, equity or otherwise that are based
in whole or part on any act, omission, transaction,
event or other occurrence taking place on or prior
to the Effective Date in any way relating to the
Debtors, the reorganized Debtors, the
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Chapter 11 cases or the Plan, and that may be
asserted by or on behalf of the Debtors or their
estates or the reorganized Debtors against (a) the
directors, officers, employees, agents and
professionals of the Debtors, (b) the holders of
prepetition lender claims and the agents thereof,
(c) the DIP Facility agent and the holders of DIP
Facility claims, (d) each Noteholder and Revolver
Lender, and (e) the respective directors, officers,
employees, agents and professionals of the entities
released in subclauses (b) - (d) acting in such
capacity.
2. As of the Effective Date, each prepetition
lender, each Noteholder and Consenting Party (solely
in its capacity as the holder of an Existing Loan)
and each holder of an impaired claim that
affirmatively elects on the ballot for voting on the
Plan to do so, shall in consideration for the
obligations of the Debtors and the reorganized
Debtors under the Plan and the securities,
contracts, instruments, releases and other
agreements or documents to be delivered in
connection with the Plan, forever release, waive and
discharge all claims, obligations, suits, judgments,
damages, demands, debts, rights, causes of action
and liabilities (other than the rights to enforce
the Debtors' or the reorganized Debtors' obligations
under the Plan and the securities, contracts,
instruments, releases and other agreements and
documents delivered thereunder), whether liquidated
or unliquidated, fixed or contingent, matured or
unmatured, known or unknown, foreseen or unforeseen,
then existing or thereafter arising, in law, equity
or otherwise that are based in whole or in part on
any act, omission, transaction, event on other
occurrence taking place on or prior to the Effective
Date in any way relating to the Debtors, the
reorganized Debtors, the Chapter 11 cases, or the
Plan against (a) the Debtors and the reorganized
Debtors, (b) the directors, officers, employees,
agents and professionals of the Debtors, (c) the
holders of prepetition lender claims and the agents
thereof, (d) the DIP Facility agent and the holders
of DIP Facility claims, (e) each Noteholder and
Revolver Lender, and (f) the respective directors,
officers, employees, agents and professionals of the
entities released in subclauses (c) - (e) acting in
such capacity.
3. None of the Debtors, the reorganized Debtors, the
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Noteholders, the Revolver Lenders, holders of DIP
Facility claims, the DIP Facility agent, the holders
of prepetition lender claims, the agents thereto,
nor any of their respective present or former
members, officers, directors, employees, advisors,
or attorneys shall have or incur any liability to
any holder of a claim or an interest, or any other
party in interest, or any of their respective
agents, employees, representatives, financial
advisors, attorneys, or affiliates, or any of their
successors or assigns, for any act or omission in
connection with, relating to, or arising out of, the
Chapter 11 cases, formulating negotiating or
implementing the Plan, the solicitation of
acceptances of the Plan, the pursuit of confirmation
of the Plan, the confirmation of the Plan, the
consummation of the Plan, or the administration of
the Plan or the property to be distributed under the
Plan, except for their gross negligence or willful
misconduct, and in all respects shall be entitled to
reasonably rely upon the advice of counsel with
respect to their duties and responsibilities under
the Plan.
EMERGENCE FACILITY: On the Effective Date, the Debtors shall
close the Emergence Facility with
substantially the terms and conditions set
forth in the Foothill Term Sheet.
All funded obligations outstanding under the
DIP Facility on the Effective Date shall be
repaid from borrowings under the Emergence
Facility.
SYNDICATION RIGHTS: 1. AMERCO will obtain ratings for the Term
Loan B Notes from either S&P or Xxxxx'x
prior to closing.
2. If the Term Loan B Notes are syndicated as
described below, then the "Market Value" of the Term
Loan B Notes shall be the price (net after any
discounts) at which Term Loan B Notes are purchased
in such syndication.
3. AMERCO will use its best efforts to arrange for
the placement of a portion of the Term Loan B Notes
to Market Participants (as defined below). The
proceeds of any commitments from new Market
Participants above $30 million aggregate face amount
of Term Loan B Notes will be paid initially to the
Revolver Lenders until the total cash received by
the Revolver Lenders equals 65% of the principal
amount of the Existing Loans, and
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all proceeds thereafter will be paid, on a pro rata
basis, to the Revolver Lenders and Noteholders, in
lieu of an equal amount of Term Loan B Notes to
reduce, on a pro rata basis, the principal amounts
of Term Loan B Notes to be distributed to the
Revolver Lenders and the Noteholders under the Plan
in accordance with this Restructuring Agreement and
the Noteholders Restructuring Agreement.
4. In addition to any fees payable to the Revolver
Lenders under "Fees" above, to the extent the Term
Loan B Notes are offered in a syndication with fees,
discounts, increased spreads or any other additional
compensation not already taken into account in the
determination of Market Value (whether paid pre- or
post-closing of the Term Loan B Notes, and including
any "pricing flex"), the Revolver Lenders will fully
participate therein, on the same terms offered or
issued to each other holder of Term Loan B Notes.
5. If less than $20 million of Term Loan B Notes are
sold to Market Participants on the same terms as are
to be issued to the Revolver Lenders under the
Restructuring Agreement, then the Revolver Lenders
will receive Term Loan A Notes in the amount (net
after any discount) of $33,600,000, instead of any
Term Loan B Notes, and the Revolver Lenders will not
participate in the Term Loan B Notes.
For purposes of this Term Sheet, "Market
Participants" is defined as recognized institutional
investors not affiliated with the Debtors or with
any "insider" (as that term is defined in the
Bankruptcy Code) of the Debtors.
REVOLVER LENDER FEES: The reasonable fees and expenses of the
financial and legal professionals retained
by the Administrative Agent or the Revolver
Lenders shall be paid on the Effective Date
of the Plan.
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