EXHIBIT 10.1
EXECUTION COPY
================================================================================
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, INC.
BORROWERS,
U-HAUL INTERNATIONAL, INC.,
GUARANTOR,
AND
XXXXXXX XXXXX COMMERCIAL FINANCE CORP.,
AS LENDER
DATED AS OF JUNE 8, 2005
================================================================================
TABLE OF CONTENTS
PAGE
----
SECTION 1. DEFINITIONS.............................................. 1
1.1 Defined Terms............................................ 1
1.2 Other Definitional Provisions............................ 15
SECTION 2. AMOUNT AND TERMS OF COMMITMENT........................... 16
2.1 Commitment............................................... 16
2.2 Procedure for Borrowing.................................. 16
2.3 Non-Usage Fee............................................ 16
2.4 Mandatory Reduction of Commitment........................ 16
2.5 Extension of Termination Date............................ 17
2.6 Substitution of Eligible Properties...................... 17
SECTION 3. GENERAL PROVISIONS APPLICABLE TO LOANS................... 17
3.1 Interest Rates and Payment Dates......................... 17
3.2 Continuation............................................. 18
3.3 [Reserved]............................................... 18
3.4 Repayment of Loans; Evidence of Debt..................... 18
3.5 Optional Prepayments..................................... 18
3.6 Mandatory Prepayments.................................... 19
3.7 Computation of Interest and Fees......................... 19
3.8 Inability to Determine Interest Rate..................... 19
3.9 Payments................................................. 20
3.10 Illegality............................................... 20
3.11 Requirements of Law...................................... 20
3.12 Taxes.................................................... 21
3.13 Indemnity................................................ 23
3.14 Lending Offices; Change of Lending Office................ 23
SECTION 4. REPRESENTATIONS AND WARRANTIES........................... 23
4.1 Financial Condition...................................... 23
4.2 No Change................................................ 24
4.3 Existence; Compliance with Law........................... 24
4.4 Power; Authorization; Enforceable Obligations............ 24
4.5 No Legal Bar............................................. 24
4.6 No Material Litigation................................... 24
4.7 No Default............................................... 25
4.8 Ownership of Property; Liens............................. 25
4.9 Taxes.................................................... 25
4.10 Federal Regulations...................................... 25
4.11 ERISA.................................................... 25
4.12 Investment Company Act; Other Regulations................ 26
4.13 Subsidiaries, Corporate Structure........................ 26
-i-
4.14 Security Documents....................................... 26
4.15 Accuracy and Completeness of Information................. 26
4.16 Labor Relations.......................................... 27
4.17 Insurance................................................ 27
4.18 Solvency................................................. 27
4.19 Purpose of Loans......................................... 27
4.20 Environmental Matters.................................... 27
4.21 Eligible Properties...................................... 29
SECTION 5. CONDITIONS PRECEDENT..................................... 31
5.1 Conditions to Initial Loans.............................. 31
5.2 Conditions to Each Loan.................................. 34
5.3 Conditions to Termination Date Extension................. 35
SECTION 6. AFFIRMATIVE COVENANTS.................................... 36
6.1 Financial Statements..................................... 36
6.2 Certificates; Other Information.......................... 37
6.3 Payment of Obligations................................... 37
6.4 Conduct of Business and Maintenance of Existence......... 38
6.5 Maintenance of Property; Insurance....................... 38
6.6 Inspection of Property; Books and Records; Discussions... 38
6.7 Notices.................................................. 38
6.8 Environmental Laws....................................... 39
6.9 [Reserved]............................................... 41
6.10 Bank Accounts............................................ 41
6.11 Post Closing Matters..................................... 42
6.12 Continuation of Lines of Business........................ 43
SECTION 7. NEGATIVE COVENANTS....................................... 43
7.1 Negative Pledge.......................................... 43
7.2 Limitation on Fundamental Changes........................ 44
7.3 Limitation on Modifications of Agreements................ 44
7.4 Sale of Eligible Properties and Collateral............... 44
7.5 Governing Documents...................................... 44
SECTION 8. EVENTS OF DEFAULT........................................ 44
SECTION 9. MISCELLANEOUS............................................ 47
9.1 Amendments and Waivers................................... 47
9.2 Notices.................................................. 47
9.3 No Waiver; Cumulative Remedies........................... 48
9.4 Survival of Representations and Warranties............... 48
9.5 Payment of Expenses and Taxes............................ 48
9.6 Successors and Assigns; Participations and Assignments... 49
9.7 Set-off.................................................. 49
-ii-
9.8 Counterparts............................................ 49
9.9 Severability............................................ 50
9.10 Integration............................................. 50
9.11 GOVERNING LAW........................................... 50
9.12 Submission To Jurisdiction; Waivers..................... 50
9.13 Acknowledgements........................................ 50
9.14 WAIVERS OF JURY TRIAL................................... 51
9.15 Confidentiality......................................... 51
9.16 Guarantee Provisions; Joint and Several Liability....... 51
9.17 Cooperation by Lender................................... 53
SCHEDULES
Schedule 1.0 Maximum Initial Commitment and Applicable Lending Office
Schedule 1.1 Initial Eligible Properties and Appraisals
Schedule 1.3 Mandatory Reductions in Commitment, Amortization and
Rapid Amortization
Schedule 1.4 Eligibility Criteria
Schedule 1.5 CMBS Properties
Schedule 4.4 Consents and Filings
Schedule 4.14(b) Filing Jurisdictions
Schedule 4.20 Environmental Matters
Schedule 5.1(k) Local Counsel
Schedule 6.5 Eligible Property Insurance
EXHIBITS
Exhibit A Form of Note
Exhibit B Form of Guarantee
Exhibit C Form of Security Agreement
Exhibit D Form of Existing Loan Assignment Agreement
Exhibit E Form of Non Bank Status Certificate
Exhibit F Form of Closing Certificate
Exhibit G-1 Form of Opinion of Xxxxxx Xxxxxx Rosenman LLP
Exhibit G-2 Form of Opinion of Xxxxxxxx Xxxxxxx, Esq.
Exhibit G-3 Form of Opinion of Local Counsel
Exhibit H-1 Form of CMBS Properties Excess Cash Flow Report
Exhibit H-2 Form of NOI Report
Exhibit H-3 Form of Debt Service Coverage Ratio Report
Exhibit I Form of Local Counsel Checklist
ANNEXES
Annex I Form of Notice of Borrowing
Annex II [Reserved ]
Annex III Form of Notice of Prepayment
-iii-
AMENDED AND RESTATED CREDIT AGREEMENT
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of June 8, 2005,
among AMERCO REAL ESTATE COMPANY, a Nevada corporation ("AMERCO Real Estate"),
AMERCO REAL ESTATE COMPANY OF TEXAS, INC., a Texas corporation ("AMERCO Texas"),
AMERCO REAL ESTATE COMPANY OF ALABAMA, INC., an Alabama corporation ("AMERCO
Alabama"), and U-HAUL CO. OF FLORIDA, INC., a Florida corporation ("U-Haul
Florida") (each, a "Borrower" and, individually and collectively, jointly and
severally, the "Borrowers"), U-HAUL INTERNATIONAL, INC., a Nevada corporation
("U-Haul International"), and XXXXXXX XXXXX COMMERCIAL FINANCE CORP., a Delaware
corporation (together with its permitted successors or assigns, the "Lender").
RECITALS
WHEREAS, pursuant to the Loan and Security Agreement, dated as of
March 1, 2004 (as amended, supplemented or otherwise modified prior to the date
hereof, the "Existing Loan Agreement"), among AMERCO, a Nevada corporation and
the parent corporation of the Borrowers ("AMERCO"), various subsidiaries of
AMERCO, including, but not limited to, AMERCO Texas, AMERCO Alabama, AMERCO Real
Estate, U-Haul Florida and U-Haul International, as borrowers (collectively, the
"Existing Borrowers"), the lenders identified therein (the "Existing Lenders")
and Xxxxx Fargo Foothill, Inc., as lead arranger, administrative agent,
syndication agent and collateral agent for the Existing Lenders (the "Existing
Agent"), the Existing Agent and Existing Lenders provided the Existing Borrowers
with financing for the implementation of a reorganization plan and for other
general corporate purposes;
WHEREAS, the Borrowers wish to refinance the indebtedness under the
Existing Loan Agreement, by the assignment of such indebtedness to the Lender
and the amendment and restatement of the Existing Loan Agreement, as set forth
in this Agreement; and
WHEREAS, the Borrowers are the direct or indirect legal and
beneficial owners of the initial Eligible Properties (as herein defined) set
forth on Schedule 1.1,
WHEREAS, the Borrowers have requested the Lender to make available
to the Borrowers additional loans as provided herein from time to time; and
WHEREAS, on the date hereof, the Existing Creditors (as herein
defined) are assigning to the Lender (i) the Existing Loan Agreement and the
loans outstanding thereunder, pursuant to the Existing Loan Assignment Agreement
and (ii) certain mortgages encumbering the Eligible Properties pursuant to the
Mortgage Assignments (as herein defined);
NOW THEREFORE, the parties hereto hereby agree that the Existing
Loan Agreement is amended and restated to read in its entirety as follows:
SECTION 1. DEFINITIONS
1.1 Defined Terms. As used in this Agreement, the following terms
shall have the following meanings:
"Account and Payment Instructions Certificate": a certificate, in
form satisfactory to the Lender and the Borrower, setting forth the account
numbers for certain deposit accounts and certain payment instructions, as
provided in this Agreement.
"Affiliate": as to any Person, any other Person (other than a
Subsidiary) which, directly or indirectly, is in control of, is controlled by,
or is under common control with, such Person. For purposes of this definition,
"control" of a Person (including, with its correlative meanings, "controlled by"
and "under common control with") means the power, directly or indirectly, either
to direct or cause the direction of the management and policies of such Person,
whether through the ownership of voting shares, partnership interests or other
Capital Stock or by contract or otherwise.
"Aged Truck Intercreditor Agreement": an intercreditor agreement
which may be entered into among the Lender, the Aged Truck Lenders and Xxxxxxx
Xxxxx Commercial Finance Corp., as collateral agent for the Lender and the Aged
Truck Lenders if the Aged Truck Facility is provided, pursuant to which, among
other things, such collateral agent shall hold the collateral securing the Aged
Truck Facility and the Aged Truck Junior Collateral on behalf of both the Aged
Truck Lenders and the Lender, and pursuant to which the Aged Truck Lenders and
the Lender shall agree that the Aged Truck Lenders shall have a senior security
interest in such collateral to that of the Lender, and setting forth such other
terms and conditions as the parties thereto may agree.
"Aged Truck Junior Collateral": if the Aged Truck Facility is
provided, the second-priority collateral security interest (junior to the
security interest of the Aged Truck Lenders) of the Lender in the collateral
securing the Aged Truck Facility
"Aged Truck Junior Lien Documents": if the Aged Truck Facility is
provided, the security documents evidencing and governing the Aged Truck Junior
Collateral.
"Aged Truck Lenders": if the Aged Truck Facility is provided, the
lender or lenders which make available the Aged Truck Facility.
"Aged Truck Loan Documents": if the Aged Truck Facility is provided,
the credit and security documentation evidencing and governing the Aged Truck
Facility.
"Aged Truck Facility": a revolving credit facility which may be made
available by the Aged Truck Lenders to AMERCO or a Subsidiary thereof, in a
maximum available principal amount of $150,000,000 and secured by a fleet of
trucks and trailers with an average age of approximately 10 years, embodying the
other terms set forth in the Proposed Summary of Terms and Conditions provided
by the Aged Truck Lenders to U-Haul International prior to the date hereof, and
on such other terms and conditions as may be mutually agreed by the Aged Truck
Lenders, the Lender and U-Haul International.
"Agreement": this Credit Agreement, as amended, supplemented or
otherwise modified from time to time.
"Alternate Rate": at any time, a rate per annum equal to the prime
rate announced to be in effect as of such time, as published as the average rate
in The Wall Street Journal.
"Applicable Amortization Schedule": at any time that no Rapid
Amortization Event is in effect, the schedule attached hereto as Part I of
Schedule 1.3, and at any other time, the schedule attached hereto as Part II of
Schedule 1.3.
"Applicable Lending Office": for the Lender, the lending office of
the Lender designated on Schedule 1.0 hereto (or any other lending office from
time to time notified to the Borrower by the Lender) as the office at which its
Loans are to be made and maintained.
-2-
"Applicable Margin": for any Loan, (a) for the first Interest
Period, 2.75% per annum, and (b) for each Interest Period after the first
Interest Period, the applicable rate per annum set forth in the table below
opposite the NOI Ratio calculated by the Lender based upon the Combined NOI most
recently reported by the Borrowers prior to the first day of such Interest
Period pursuant to Section 6.2(b):
NOI Ratio Applicable Margin
-------------------------------------------------------------- -----------------
Greater than or equal to 2.00 to 1.0 2.75%
Greater than or equal to 1.50 to 1.0 and less than 2.00 to 1.0 2.50%
Greater than or equal to 1.00 to 1.0 and less than 1.50 to 1.0 2.25%
Less than 1.00 to 1.0 2.00%
; provided that the NOI Ratio shall be deemed to be greater than or equal to
2.00 to 1.0 (A) at any time that an Event of Default has occurred and is
continuing or (B) at the option of the Lender, if the Borrowers fail to deliver
the report of Combined NOI with respect to all of the Eligible Properties
required to be delivered by it pursuant to Section 6.2(b), during the period
from the expiration of the time for delivery thereof until such report of
Combined NOI is delivered.
"Appraised Value": with respect to any Property, (a) with respect to
the Properties listed on Schedule 1.1, the appraised value of such Property as
set forth in the appraisal thereof previously provided to the Lender by the
Borrowers and referenced on Schedule 1.1, and (b) with respect to any other
Property, the appraised value of such Property as set forth in the appraisal of
such Property by Xxxxxxx & Wakefield (or other appraiser satisfactory to the
Lender) existing as of the date hereof, or if the date of such existing is more
than 24 months prior to the date of determination, a new appraisal by an
appraiser, and in form and scope, satisfactory to the Lender.
"Available Commitment": as to the Lender at any time, an amount
equal to the excess, if any, of (a) the amount of the Commitment at such time
over (b) the aggregate outstanding principal amount of Loans at such time.
"Award": any compensation paid by any Governmental Authority in
connection with a Condemnation in respect of all or any part of a Property.
"Bank Account": a deposit, custody, money-market or other similar
account (whether, in any case, time or demand or interest or non-interest
bearing) maintained by a Loan Party with a financial institution, which may at
any time hold any Collateral or Proceeds of Collateral, including without
limitation, the Concentration Account, the Collection Account and the Collection
Sub-Account.
"Board": the Board of Governors of the Federal Reserve System of the
United States (or any successor).
"Borrower": as defined in the heading to this Agreement.
-3-
"Borrowing Date": any Business Day specified in a notice pursuant to
Section 2.2 as a date on which the Borrower requests the Lender to make Loans
hereunder.
"Business": as defined in Section 4.20(c).
"Business Day": (i) for all purposes other than as covered by clause
(ii) of this definition, a day other than a Saturday, Sunday or other day on
which commercial banks in New York City, are authorized or required by law to
close, and, (ii) with respect to all notices and determinations in connection
with, and payments of principal and interest on, Eurodollar Loans, any day which
is a Business Day as described in clause (i) of this definition and which is
also a day on which dealings in Dollar deposits are carried out in the interbank
market.
"Capital Stock": any and all shares, interests, participations or
other equivalents (however designated) of capital stock of a corporation,
membership interests in a limited liability company, partnership interests in a
partnership, any and all similar ownership interests in a Person (other than a
corporation, limited liability company or partnership) and any and all warrants,
rights or options to purchase any of the foregoing.
"CERCLA": as defined in the definition of "Environmental Laws".
"Change of Control": (a) any "person" or "group" (within the meaning
of Section 13(d) and 14(d) of the Exchange Act), other than Permitted Holders,
that 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
AMERCO having the right to vote for the election of members of the Board of
Directors or (b) a majority of the members of the Board of Directors do not
constitute Continuing Directors.
"Closing Date": the date on which the conditions precedent set forth
in Section 5.1 shall be satisfied or waived.
"CMBS Accounts": collectively, the Xxxxxxx Xxxxx CMBS Account and
the Xxxxxx Xxxxxxx CMBS Account.
"CMBS Banks": collectively, the Xxxxxxx Xxxxx CMBS Bank and the
Xxxxxx Xxxxxxx CMBS Bank.
"CMBS Bank Direction Letters": as defined in Section 6.10(b).
"CMBS Documents": collectively, the Xxxxxxx Xxxxx CMBS Documents and
the Xxxxxx Xxxxxxx CMBS Documents.
"CMBS Mortgage Agreements": collectively, the Xxxxxxx Xxxxx CMBS
Mortgage Agreements and the Xxxxxx Xxxxxxx CMBS Mortgage Agreements.
"CMBS Primary Documents": collectively, the Xxxxxxx Xxxxx CMBS
Primary Documents and the Xxxxxx Xxxxxxx CMBS Primary Documents.
"CMBS Properties": as listed on Schedule 1.5 attached hereto.
"CMBS Properties Excess Cash Flow": for any period, the sum of (a)
all amounts which are distributable to any of the "Borrowers" under and as
defined in any CMBS Mortgage Agreements
-4-
pursuant to Section 5.05 of such CMBS Mortgage Agreements for such period, and
(b) all other operating revenue of the CMBS Properties for such period.
"CMBS Properties Excess Cash Flow Report": the monthly report to be
given by U-Haul International substantially in the form of Exhibit H-1 hereto.
"Code": the Internal Revenue Code of 1986, as amended from time to
time.
"Collateral": all property and interests in property of the Loan
Parties, now owned or hereinafter acquired, upon which a Lien is purported to be
created by any Security Document.
"Collection Account": the deposit account designated as such in the
Account and Payment Instructions Certificate established at the Collection
Account Bank, in the name of U-Haul International and subject to the Collection
Account Control Agreement, or such other deposit account (located in the United
States) established by a Borrower with the written consent of the Lender.
"Collection Account Bank": JPMorgan Chase Bank, N.A.
"Collection Account Control Agreement": the control agreement, in
form and substance reasonably satisfactory to Lender, executed and delivered
from time to time by U-Haul International, the Lender and the Collection Account
Bank, with respect to the Collection Account.
"Collection Sub-Account": the interest-bearing deposit account
designated as such in the Account and Payment Instructions Certificate
established at the Collection Sub-Account Bank, in the name of U-Haul
International and subject to the Collection Sub-Account Control Agreement, or
such other deposit account (located in the United States) established by a
Borrower with the written consent of the Lender.
"Collection Sub-Account Bank": JPMorgan Chase Bank, N.A.
"Collection Sub-Account Control Agreement": the control agreement,
in form and substance reasonably satisfactory to Lender, executed and delivered
from time to time by U-Haul International, the Lender and the Collection
Sub-Account Bank, with respect to the Collection Sub-Account.
"Collection Sub-Account Deposit": for any calendar month, the
deposit to be made by U-Haul International into the Collection Sub-Account
pursuant to Section 6.10(c) for such month, consisting of an amount equal to the
sum of (i) the monthly principal amortization payment, if required, of the Loans
pursuant to the Applicable Amortization Schedule hereto required to be paid on
the Payment Date next following the end of such month, and (ii) the interest
which would be due to be paid on the Payment Date next following the end of such
month calculated assuming that applicable NOI Ratio at all times during such
month would result in the Loans bearing the highest possible interest rate
provided for under Section 3.1(a) at all times during such month.
"Collection Sub-Account Failure": the failure of U-Haul
International to make the required Collection Sub-Account Deposit by the 21st
day of each calendar month (or, if unrestricted funds are already on deposit in
the Collection Sub-Account, the failure of U-Haul International to deposit an
amount sufficient such that the unrestricted funds on deposit in the Collection
Sub-Account by such 21st day of such calendar month is not less than the
Collection Sub-Account Deposit).
-5-
"Combined NOI": for any period with respect to the Borrowers, the
NOI of all of the Eligible Properties owned by the Borrowers on a combined
basis.
"Commitment": the obligation of the Lender to make Loans to the
Borrowers pursuant to Section 2.1 in an aggregate principal amount at any one
time outstanding not to exceed, during any month following the Closing Date, the
amount set forth opposite such month on the Applicable Amortization Schedule
under the caption "Maximum Aggregate Amount (beginning of month)", as such
amount may be changed from time to time in accordance with the provisions of
this Agreement. As of the Closing Date, the Commitment was $465,000,000.
"Commitment Letter": the commitment letter dated May 9, 2005 between
the Lender and the Loan Parties.
"Commitment Period": the period from and including the date hereof
to but not including the Termination Date or such earlier date on which the
Commitment shall terminate as provided herein.
"Commonly Controlled Entity": an entity, whether or not
incorporated, which is under common control with the Borrower within the meaning
of Section 4001 of ERISA or is part of a group which includes the Borrower and
which is treated as a single employer under Section 414(b) or (c) of the Code
or, for purposes of the Code, Section 414(m) or (o) of the Code.
"Concentration Account": the deposit account designated as such in
the Account and Payment Instructions Certificate in the name of U-Haul
International maintained at the Concentration Account Bank at Phoenix, Arizona
or such other deposit account (located in the United States) established by a
Borrower with the consent of the Lender.
"Concentration Account Bank": JPMorgan Chase Bank, N.A.
"Concentration Account Direction Letter": as defined in Section
6.10(b).
"Condemnation": a temporary or permanent taking by any Governmental
Authority as the result, in lieu or in anticipation, of the exercise of the
right of condemnation or eminent domain, of all or any part of any Property, or
any interest therein or right accruing thereto, including any right of access
thereto affecting the Property or any part thereof.
"Continuation", "Continuing" and "Continued" shall refer to the
continuation of a Eurodollar Loan from one Interest Period to the next Interest
Period.
"Continuing Directors": 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.
"Contractual Obligation": as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"Debt Service Coverage Ratio": as of the last day of any fiscal
quarter of the Borrowers, the ratio of (a) the sum of (i) CMBS Properties Excess
Cash Flow for the period of twelve consecutive calendar months ended on the last
day of the month immediately preceding the month in which such day occurs
divided by four and (ii) Combined NOI for the period of twelve consecutive
calendar months
-6-
ended on the last day of the month immediately preceding the month in which such
day occurs, divided by four, to (b) the sum of (i) interest payable on the Loans
during the fiscal quarter ended on such day and (ii) payments of principal on
the Loans made during the fiscal quarter ended on such day; provided, that for
purposes of calculating such CMBS Properties Excess Cash Flow if less than
twelve months have elapsed since the closing of the transaction contemplated by
the CMBS Documents as to which the Borrowers have provided the reports
contemplated in Section 6.1, the amount in clause (a)(i) of this definition
shall be CMBS Properties Excess Cash Flow for the period from such closing of
the transaction contemplated by the CMBS Documents to such last day of the month
immediately preceding the month in which such last day of such fiscal quarter
occurs multiplied by a fraction, the numerator of which is 12 and the
denominator of which is the number of calendar months elapsed since the closing
of the transaction contemplated by the CMBS Documents as to which such reports
contemplated in Section 6.1 have been provided.
"Default": any of the events specified in Section 8, whether or not
any requirement for the giving of notice, the lapse of time, or both, or any
other condition, has been satisfied.
"Direction Letters": as defined in Section 6.10(b).
"Dollars" and "$": dollars in lawful currency of the United States
of America.
"Eligible Property": any Property which satisfies the Eligibility
Criteria and is approved by the Lender in its reasonable discretion. The Lender
hereby acknowledges that the Properties listed on Schedule 1.1 are Eligible
Properties. The Lender acknowledges that, upon request of the Borrowers, other
Properties ("Substitute Properties") may be substituted for Eligible Properties,
so long as at the time of such substitution such Substitute Properties satisfy
the Eligibility Criteria and the representations set forth in Sections 4.20 and
4.21 shall be true and correct with respect to such Substitute Property.
"Eligibility Criteria": with respect to any Property, the criteria
listed on Schedule 1.4.
"Environmental Indemnity Agreement": the environmental indemnity
agreement to be executed and delivered by the Loan Parties in favor of the
Lender, in form and substance reasonably satisfactory to the Lender.
"Environmental Laws": collectively, any civil or criminal, local,
state or federal law, rule or regulation ordinance, code, decree, judgment,
permit, license, agreement with Governmental Authorities, or other requirements
of law, including common law, pertaining to the environment, natural resources,
pollution, health, safety, clean-up, underground storage tanks and/or governing
the handling, use, presence, release, transportation, treatment, storage,
disposal, or exposure to hazardous substances including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42
U.S.C. Section 9601 et seq.) ("CERCLA"), the Resource Conservation and Recovery
Act of 1976 (42 U.S.C. Section 6901 et seq.), the Federal Water Pollution
Control Act (33 U.S.C. Section 1251 et seq.), the Hazardous Materials
Transportation Act (49 U.S.C. Section 5101 et seq.), the Clean Air Act (42
U.S.C. Section 7401 et seq.), the Federal Insecticide, Fungicide and Rodenticide
Act (7 U.S.C. Section 136 et seq.), the Emergency Planning and Community Right
to Know Act (42 U.S.C. Section 11001 et seq.), the Occupational Safety and
Health Act (29 U.S.C. Section 651 et seq.), the Residential Lead-Based Paint
Hazard Reduction Act (42 U.S.C. Section 4851 et seq.), any analogous state or
local laws, any amendments thereto, and the regulations promulgated pursuant to
said laws, together with all amendments from time to time to any of the
foregoing.
"Environmental Permits": as defined in Section 4.20(b).
-7-
"Environmental Reports": as defined in the Environmental Indemnity
Agreement.
"ERISA": the Employee Retirement Income Security Act of 1974, as
amended from time to time.
"Eurocurrency Reserve Requirements": for any day as applied to a
Eurodollar Loan, the aggregate (without duplication) of the rates (expressed as
a decimal fraction) of reserve requirements current on such day (including,
without limitation, basic, supplemental, marginal and emergency reserves under
any regulations of the Board or other Governmental Authority having jurisdiction
with respect thereto), as now and from time to time hereafter in effect, dealing
with reserve requirements prescribed for eurocurrency funding (currently
referred to as "Eurocurrency Liabilities" in Regulation D of such Board)
required to be maintained by the Lender.
"Eurodollar Base Rate" shall mean with respect to each day during
each Interest Period pertaining to a Eurodollar Loan, the rate per annum equal
to the corresponding rate appearing on page BBAM of Bloomberg L.P. as "LIBOR"
for such Interest Period two (2) Business Days prior to the beginning of such
Interest Period (and if such date is not a Business Day, the Eurodollar Rate in
effect on the Business Day immediately preceding such date), and if such rate
shall not be so quoted, the rate per annum at which the Lender is offered Dollar
deposits at or about 10:00 A.M., New York City time, two Business Days prior to
the beginning of such Interest Period by prime banks in the interbank eurodollar
market where the eurodollar and foreign currency exchange operations in respect
of its Loans are then being conducted for delivery on the first day of such
Interest Period for the number of days comprised therein and in an amount
comparable to the amount of the Loans to be outstanding during such Interest
Period; provided, that, on any day during which the circumstances specified in
Section 3.8 or 3.10 are in existence, the Eurodollar Rate shall be the Alternate
Rate.
"Eurodollar Loans": Loans the rate of interest applicable to which
is based upon the Eurodollar Rate.
"Eurodollar Rate": with respect to each day during each Interest
Period pertaining to a Eurodollar Loan, a rate per annum determined for such day
in accordance with the following formula (rounded upwards to the nearest 1/100th
of 1%):
Eurodollar Base Rate
----------------------------------------
1.00 - Eurocurrency Reserve Requirements
"Event of Default": any of the events specified in Section 8;
provided that any requirement for the giving of notice, the lapse of time, or
both, or any other condition, has been satisfied.
"Existing Creditors": the "Lenders", the "Issuing Lender" and the
"Agent" under, and each as defined in, the Existing Loan Agreement.
"Existing Financing Documents": collectively, the Existing Loan
Agreement, the Existing Mortgages, and the other "Loan Documents" as defined in
the Existing Loan Agreement.
"Existing Loan Agreement": as defined in the recitals hereto.
"Existing Loan Assignment Agreement": the Assignment Agreement,
substantially in the form of Exhibit D, to be entered into among the Lender, the
Loan Parties and the Existing Creditors, as the same may be amended,
supplemented or otherwise modified from time to time.
-8-
"Existing Mortgage": each of the duly recorded mortgages or deeds of
trust dated as of March 1, 2004 in respect of the Eligible Properties, made for
the benefit of Xxxxx Fargo Foothill, Inc., as agent for the Existing Creditors.
"Facility": the Commitment and the extensions of credit made
thereunder.
"Family Member": 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.
"Family Trusts": 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.
"Financing Lease": any lease of property, real or personal, the
obligations of the lessee in respect of which are required in accordance with
GAAP to be capitalized on a balance sheet of the lessee.
"GAAP": generally accepted accounting principles in the United
States of America in effect from time to time.
"Governing Documents": as to any Person, its articles or certificate
of incorporation and by-laws, its partnership agreement, its certificate of
formation and operating agreement, and/or the other organizational or governing
documents of such Person.
"Governmental Authority": any nation or government, any state or
other political subdivision thereof and any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government.
"Guarantee": the Guarantee to be executed and delivered by U-Haul
International, substantially in the form of Exhibit B, as the same may be
amended, supplemented or otherwise modified from time to time.
"Guarantee Obligation": as to any Person (the "guaranteeing
person"), any obligation of (a) the guaranteeing person or (b) another Person
(including, without limitation, any bank under any letter of credit) to induce
the creation of which the guaranteeing person has issued a reimbursement,
counterindemnity or similar obligation, in either case guaranteeing or in effect
guaranteeing any Indebtedness, leases, dividends or other obligations (the
"primary obligations") of any other third Person (the "primary obligor") in any
manner, whether directly or indirectly; provided, however, that the term
Guarantee Obligation shall not include endorsements of instruments for deposit
or collection, non-recourse carve out guarantees, performance guarantees or
construction and completion guarantees, in each case in the ordinary course of
business. The terms "Guarantee" and "Guaranteed" used as a verb shall have a
correlative meaning. The amount of any Guarantee Obligation of any guaranteeing
person shall be deemed to be the lower of (a) an amount equal to the stated or
determinable amount of the primary obligation in respect of which such Guarantee
Obligation is made and (b) the maximum amount for which such guaranteeing person
may be liable pursuant to the terms of the instrument embodying such Guarantee
Obligation, unless such primary obligation and the maximum amount for which such
guaranteeing person may be liable are not stated or determinable, in which case
the amount of such Guarantee Obligation shall be such guaranteeing person's
maximum reasonably anticipated liability in respect thereof as determined by the
Borrowers in good faith.
-9-
"Guarantor": U-Haul International.
"Hazardous Substances": collectively, any hazardous, toxic or
harmful substances, wastes, materials, pollutants or contaminants (including,
without limitation, asbestos, polychlorinated biphenyls ("PCBs"), petroleum or
petroleum by-products or wastes, flammable explosives, radioactive materials,
infectious substances, mold, materials containing lead-based paint or raw
materials which include hazardous constituents) or any other substances or
materials which are identified under or regulated by Environmental Laws.
"Hedge Agreement": any interest rate, cap or collar agreement or
similar arrangement entered into by any Borrower or any of its Subsidiaries
providing for protection against fluctuations in interest rates or the exchange
of nominal interest obligations.
"Indebtedness": of any Person at any date, without duplication, (a)
all indebtedness of such Person for borrowed money (whether by loan or the
issuance and sale of debt securities) or for the deferred purchase price of
property or services (other than current trade liabilities incurred in the
ordinary course of business and payable in accordance with customary practices),
(b) any other indebtedness of such Person which is evidenced by a note, bond,
debenture or similar instrument, (c) all obligations of such Person under
Financing Leases, (d) all obligations of such Person in respect of letters of
credit, acceptances or similar instruments issued or created for the account of
such Person, (e) all liabilities secured by (or for which the holder of such
obligations has an existing right, contingent or otherwise, to be secured by)
any Lien on any property owned by such Person even though such Person has not
assumed or otherwise become liable for the payment thereof, (f) all Guarantee
Obligations of such Person in respect of obligations of the kind referred to in
clauses (a) through (e) above, and (g) for the purposes of Section 8(e) only,
all obligations of such Person in respect of Hedge Agreements. The amount of any
Indebtedness under clause (e) shall be equal to the lesser of (A) the stated
amount of the relevant obligations and (B) the fair market value of the property
subject to the relevant Lien and under clause (g) shall be the net amount,
including any net termination payments, required to be paid to a counterparty,
calculated on a net aggregate basis assuming all such Hedge Agreements were
terminated at the same time, rather than the notional amount of the applicable
Hedge Agreement.
"Insolvency": with respect to any Multiemployer Plan, the condition
that such Plan is insolvent within the meaning of Section 4245 of ERISA.
"Insolvent": pertaining to a condition of Insolvency.
"Interest Period": with respect to any Eurodollar Loan:
(a) initially, the period commencing on the borrowing date with
respect to such Eurodollar Loan and ending on the next following Payment Date;
and
(b) thereafter, each period commencing on the day following the last
day of the preceding Interest Period applicable to such Eurodollar Loan and
ending on the next following Payment Date;
provided that, all of the foregoing provisions relating to Interest Periods are
subject to the following:
(1) if any Interest Period would otherwise end on a day that is not
a Business Day, such Interest Period shall be extended to the next succeeding
Business Day; and
-10-
(2) any Interest Period with respect to any Loan that would
otherwise extend beyond the Termination Date, shall end on the Termination Date.
"Lender": as defined in the heading hereto.
"Lien": any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other), charge or other security
interest or any preference, priority or other security agreement or preferential
arrangement of any kind or nature whatsoever intended as a security device
(including, without limitation, any conditional sale or other title retention
agreement and any Financing Lease having substantially the same economic effect
as any of the foregoing), and the filing of any financing statement under the
Uniform Commercial Code or comparable law of any jurisdiction in respect of any
of the foregoing to the extent intended as a security device or to give notice
of a security interest.
"Loan Documents": this Agreement, the Note, the Existing Loan
Assignment Agreement, the Guarantee and the Security Documents.
"Loan Parties": the Borrowers, the Guarantor and the Marketing
Grantors.
"Loans": as defined in Section 2.1.
"Local Account": a Bank Account, associated with an Eligible
Property and into which the Borrowers shall deposit or cause to be deposited
daily all cash receipts and collections of Collateral relating to such Eligible
Property, listed as such in the Account and Payment Instructions Certificate.
"Local Counsel Checklist": each checklist to be completed by local
counsel to the Borrowers with respect to an Eligible Property, in substantially
the form attached hereto as Exhibit I.
"Marketing Grantors": as defined in the Security Agreement.
"Material Adverse Effect": a material adverse effect on (a) the
business, operations, property, condition (financial or otherwise) of the Loan
Parties taken as a whole or (b) the validity or enforceability of this Agreement
or any of the other Loan Documents or the rights or remedies of the Lender or
the Lender hereunder or thereunder.
"Xxxxxxx Xxxxx CMBS Account": the "Central Account" as defined in
the Xxxxxxx Xxxxx CMBS Mortgage Agreements, being the deposit account so
designated in the Account and Payment Instructions Certificate.
"Xxxxxxx Xxxxx CMBS Bank": JPMorgan Chase Bank, N.A., as the bank at
which the Xxxxxxx Xxxxx CMBS Account is maintained.
"Xxxxxxx Xxxxx CMBS Bank Direction Letter": as defined in Section
6.10(b).
"Xxxxxxx Xxxxx CMBS Documents": all "Loan Documents" as defined in
the Xxxxxxx Xxxxx CMBS Mortgage Agreements.
"Xxxxxxx Xxxxx CMBS Mortgage Agreement": each Mortgage, Security
Agreement, Assignment of Rents and Fixture Filing, dated as of June 8, 2005,
made by the respective borrowers named therein to Xxxxxxx Xxxxx Mortgage
Lending, Inc.
-11-
"Xxxxxxx Xxxxx CMBS Primary Documents": the "Security Instrument",
the "Note", the "Assignment", each as defined in the Xxxxxxx Xxxxx CMBS Mortgage
Agreements, and the Guaranty, dated as of June 8, 2005, made by AMERCO Real
Estate Company, AMERCO Real Estate Company of Texas, U-Haul Company of Florida,
in favor of Xxxxxxx Xxxxx Mortgage Lending, Inc., in respect of the Xxxxxxx
Xxxxx CMBS Documents.
"Mezzanine Financing": any "Mez Loan" as defined in a CMBS Mortgage
Agreement, or any other mezzanine debt financing incurred by any Loan Party of
any Affiliate of a Loan Party and entitled to any payment of any amounts prior
to the CMBS Properties Excess Cash Flow, whether pursuant to the "waterfall"
provisions of any CMBS Documents, pursuant to the corporate or capital structure
of the borrowers of such Mezzanine Financing and its Affiliates, or otherwise,
it being understood that the aggregate principal amount of such Mezzanine
Financings are not to exceed $50,000,000 at any time.
"Xxxxxx Xxxxxxx CMBS Account": the "Central Account" as defined in
the Xxxxxx Xxxxxxx CMBS Mortgage Agreements, being the deposit account so
designated in the Account and Payment Instructions Certificate.
"Xxxxxx Xxxxxxx CMBS Bank": JPMorgan Chase Bank, N.A., as the bank
at which the Xxxxxx Xxxxxxx CMBS Account is maintained.
"Xxxxxx Xxxxxxx CMBS Bank Direction Letter": as defined in Section
6.10(b).
"Xxxxxx Xxxxxxx CMBS Documents": all "Loan Documents" as defined in
the Xxxxxx Xxxxxxx CMBS Mortgage Agreements.
"Xxxxxx Xxxxxxx CMBS Mortgage Agreement": each Mortgage, Security
Agreement, Assignment of Rents and Fixture Filing, dated as of June 8, 2005,
made by the respective borrowers named therein to Xxxxxx Xxxxxxx Mortgage
Capital, Inc.
"Xxxxxx Xxxxxxx CMBS Primary Documents": the "Security Instrument",
the "Note", the "Assignment", as defined in the Xxxxxx Xxxxxxx CMBS Mortgage
Agreements, and the Guaranty, dated as of June 8, 2005, made by AMERCO Real
Estate Company, AMERCO Real Estate Company of Texas, U-Haul Company of Florida,
in favor of Xxxxxx Xxxxxxx Mortgage Capital, Inc., in respect of the Xxxxxx
Xxxxxxx CMBS Documents.
"Mortgage": any Existing Mortgage for any of the initial Eligible
Properties, as assigned and modified to secure the Loans under this Agreement
pursuant to a Mortgage Assignment, and any mortgage or deed of trust for any new
or substitute Eligible Properties on substantially the same terms and conditions
as such Existing Mortgages as so assigned and modified, or on such other terms
as shall be approved by the Lender in its sole discretion, as the same may be
amended, supplemented or otherwise modified from time to time.
"Mortgage Assignment": each of the Mortgage Assignments to be
executed and delivered by a Loan Party which owns the applicable initial
Eligible Property, substantially in the form separately approved by the Lender
prior to the date hereof, as the same may be amended, supplemented or otherwise
modified from time to time.
"Mortgage Documents": the Existing Mortgages, the Mortgage
Assignments, and each title insurance policy covering the same together with any
endorsements thereto.
-12-
"Multiemployer Plan": a Plan which is a "multiemployer plan" as
defined in Section 4001(a)(3) of ERISA and which is subject to Title IV of
ERISA.
"New Lending Office": as defined in Section 3.12(c).
"NOI": with respect to any Property for any period of time, the
amount obtained by subtracting Operating Expenses for such Property for such
period from Operating Revenue for such Property for such period.
"NOI Ratio": as of the last day of any monthly period ended on the
10th of a calendar month, the ratio of (a) the excess of (i) the average of the
aggregate outstanding principal amount of the Loans on each day during such
monthly period over (ii) 65% of the aggregate Appraised Values of all Eligible
Properties on the last day of such monthly period, to (b) the Combined NOI for
the period of twelve consecutive calendar months ended on the last day of the
calendar month immediately preceding the month most recently ended prior to such
day.
"Non-Bank Status Certificate": as defined in Section 3.12(c)(2).
"Non-Excluded Taxes": as defined in Section 3.12(a).
"Non-US Lender": as defined in Section 3.12(c).
"Non-Usage Amount": with respect to any Payment Date, the difference
(but not less than zero) between (a) 90% of the Commitment as in effect as of
the prior Payment Date and (b) the average daily outstanding principal amount of
the Loans for the period since the most recent prior Payment Date (or, if more
recent, the Closing Date).
"Note": as defined in Section 3.4(e).
"Obligations": the unpaid principal amount of, and interest
(including, without limitation, interest accruing after the maturity of the
Loans and interest accruing after the filing of any petition in bankruptcy, or
the commencement of any insolvency, reorganization or like proceeding, relating
to any Borrower, whether or not a claim for post-filing or post-petition
interest is allowed in such proceeding) on the Loans, and all other obligations
and liabilities of the Loan Parties to the Lender, whether direct or indirect,
absolute or contingent, due or to become due, or now existing or hereafter
incurred, which may arise under, or out of or in connection with this Agreement,
the Note, the Guarantee, the Security Documents, any other Loan Documents, and
any other document made, delivered or given in connection therewith or herewith,
whether on account of principal, interest, reimbursement obligations, fees,
indemnities, costs, expenses (including, without limitation, all fees and
disbursements of counsel to the Lender that are required to be paid by a Loan
Party pursuant to the terms of the Loan Documents) or otherwise.
"Obligor": as the context may require, each Borrower, the Guarantor
and each other Person (other than the Lender or any Person that is not an
Affiliate of the Borrowers or the Guarantor) obligated under any Loan Document.
"Operating Expenses": with respect to any Property for any period of
time, the total of all expenses actually paid or payable, computed on a cash
accounting basis consistent with prior practice, of whatever kind relating to
the operation, maintenance and management of the Property.
-13-
"Operating Revenue": with respect to any Property for any period of
time, all revenue, computed on a cash accounting basis consistent with prior
practice, derived from the ownership and operation of the Property from whatever
source, including, without limitation, self-storage rental revenue, retail
income, rental equipment commissions and other miscellaneous income derived from
such Property.
"Payment Date": the 10th day of each calendar month.
"PBGC": the Pension Benefit Guaranty Corporation established
pursuant to Subtitle A of Title IV of ERISA.
"Permitted Holder": Xxxxxx X. Xxxxx, Xxxx X. Xxxxx, Xxxxx X. Xxxxx
and their Family Members, and their Family Trusts.
"Permitted Liens": Liens permitted pursuant to the Negative Pledge
provision contained in Section 7.1 of this Agreement.
"Person": an individual, partnership, corporation, limited liability
company, business trust, joint stock company, trust, unincorporated association,
joint venture, Governmental Authority or other entity of whatever nature.
"Plan": at a particular time, any employee benefit plan which is
covered by Title IV of ERISA and in respect of which the Borrower 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.
"Property": a parcel of real property, operated by a Borrower or an
Affiliate thereof as a moving center or self-storage facility, together with the
improvements and fixtures thereon and owned in fee directly by a Borrower,
together with all rights pertaining to such property and improvements.
"Rapid Amortization Event": on any date of determination, a Rapid
Amortization Event shall exist if the Debt Service Coverage Ratio for the fiscal
quarter of any Borrower most recently ended on or prior to such date was less
than 1.25 to 1.
"Regulation U": Regulation U of the Board of Governors of the
Federal Reserve System as in effect from time to time.
"Release": means any spilling, leaking, pumping, pouring, emitting,
emptying, leaching, discharging, injecting, escaping, leaching, dumping, or
disposing of a Hazardous Substance.
"Reorganization": with respect to any Multiemployer Plan, the
condition that such plan is in reorganization within the meaning of Section 4241
of ERISA.
"Reportable Event": any of the events set forth in Section 4043(c)
of ERISA, other than those events as to which the thirty day notice period is
waived under Sections .21, .22, .23, .26, .27 or .28 of PBGC Reg. Section 4043.
"Requirement of Law": as to any Person, the certificate of
incorporation and by-laws or other organizational or Governing Documents of such
Person, and any law, treaty, rule or regulation or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or any of its property or to which such Person or
any of its property is subject.
-14-
"Responsible Officer": with respect to any Loan Party, any officer
of such Loan Party or, with respect to financial matters, the chief financial
officer or treasurer of such Loan Party.
"Security Documents": the collective reference to the Security
Agreement, the Mortgage Documents, Aged Truck Junior Lien Documents, and all
other security documents, if any, hereafter delivered to the Lender granting a
Lien on any asset or assets of any Person to secure any of the Obligations or to
secure any guarantee of any such Obligations.
"Single Employer Plan": any Plan which is covered by Title IV of
ERISA, but which is not a Multiemployer Plan.
"Subsidiary": 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.
"Taxes": all real estate and personal property taxes, assessments,
water rates or sewer rents, now or hereafter levied or assessed or imposed
against the Property or part thereof.
"Tenants": all tenants, lessees, subtenants and other occupants of
the Eligible Properties.
"Termination Date": the earliest to occur of (a) June 10, 2010, as
such date may be extended pursuant to Section 2.5, and (b) the date of
termination of the Commitment pursuant to Sections 2.4, 2.5, 2.6 or 8.
"Tranche": the collective reference to Eurodollar Loans of the then
current Interest Periods with respect to all of which begin on the same date and
end on the same later date (whether or not such Loans shall originally have been
made on the same day).
"US Person": as defined in Section 3.12(c).
1.2 Other Definitional Provisions.
(a) Unless otherwise specified therein, all terms defined in this
Agreement shall have the defined meanings when used in the Note or any other
Loan Documents or any certificate or other document made or delivered pursuant
hereto or thereto.
(b) As used herein and in the Note, any other Loan Documents and any
certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Guarantor, any Borrower and its Subsidiaries
not defined in Section 1.1 and accounting terms partly defined in Section 1.1,
to the extent not defined, shall have the respective meanings given to them
under GAAP.
(c) The words "hereof", "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement, and Section,
Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be equally
applicable to both the singular and plural forms of such terms.
-15-
SECTION 2. AMOUNT AND TERMS OF COMMITMENT
2.1 Commitment.
(a) On the Closing Date, concurrently with the amendment and
restatement of the Existing Loan Agreement hereby, the Lender is acquiring the
outstanding loans under the Existing Loan Agreement as provided under the terms
of the Existing Loan Assignment Agreement, and such loans and the terms thereof
shall immediately be amended, restated and reconstituted as, and shall thereupon
for all purposes of the Loan Documents be, Loans outstanding under this
Agreement. Subject to the terms and conditions hereof, the Lender agrees to make
Loans ("Loans") to the Borrowers from time to time during the Commitment Period
in an aggregate principal amount at any one time outstanding not to exceed the
Commitment then in effect; provided, that the Commitments shall terminate at
6:00 p.m., New York City time, on June 8, 2005, if the initial Loans have not
been made prior to that time. During the Commitment Period the Borrower may use
the Commitments by borrowing, prepaying the Loans in whole or in part, and
reborrowing, all in accordance with the terms and conditions hereof.
(b) The Loans hereunder shall be Eurodollar Loans.
2.2 Procedure for Borrowing. The Borrower may borrow under the
Commitment during the Commitment Period on any Business Day, not to exceed four
times in a single month, in an aggregate principal amount not exceeding the
aggregate Available Commitment then in effect, provided that the Borrower shall
give the Lender irrevocable notice (which notice must be received by the Lender
prior to 2:00 p.m., New York City time, three Business Days prior to the
requested Borrowing Date) in the form of Annex I, duly completed, specifying (i)
the amount to be borrowed and (ii) the requested Borrowing Date. Each borrowing
under the Commitment shall be in an amount equal to $1,000,000 or a whole
multiple of $100,000 in excess thereof. The Lender will make such borrowing
available to the Borrowers by the Lender transferring funds relating to such
borrowing to such account of the Borrowers as the Borrowers may from time to
time designate (it being agreed that the initial Loans shall be funded at the
Borrowers' request by wire transfer in accordance with the instructions
separately certified to the Lender by the Borrowers in writing prior to the
Closing Date and specified as such in the Account and Payment Instructions
Certificate.
2.3 Non-Usage Fee. The Borrower agrees to pay to the Lender for the
account of the Lender a non-usage fee for the period from and including the
first day of the Commitment Period to but not including the Termination Date,
computed at the rate of 0.375% per annum on the Non-Usage Amount for the Payment
Date for which payment is made, payable monthly in arrears on each Payment Date
and on the Termination Date or such earlier date as the Commitment shall
terminate as provided herein, commencing on the first of such dates to occur
after the date hereof.
2.4 Mandatory Reduction of Commitment. The Commitment shall
automatically be reduced on the dates and in the amounts (a) as set forth on the
Applicable Amortization Schedule, (b) as provided in the second sentence of
Section 3.6(b), (c) upon any sale, transfer, exchange or other disposition of
any Eligible Property or any interest (other than leases of or easements on any
such Eligible Property not prohibited hereby) therein, or upon any Eligible
Property ceasing to be an Eligible Property pursuant to Sections 6.11(b)(i)(B)
or 6.11(e), in an amount equal to 65% of the Appraised Value of such Eligible
Property, provided that, if in connection with such sale, transfer, exchange or
other disposition of an Eligible Property the Borrowers substitute a new
Eligible Property pursuant to Section 2.6, such amount of reduction of the
Commitment shall be limited to 65% of the excess, if any, of the Appraised Value
of the Eligible Property so being disposed of over the Appraised Value of the
new Eligible Property being substituted therefor, and (d) if any Loan Party or
Affiliate of any Loan Party shall at any time incur, assume or suffer to exist
Indebtedness under the Loan Documents, the CMBS Documents and
-16-
any Mezzanine Financing, in an aggregate outstanding principal amount at such
time in excess of $945,000,000 minus the amount of any scheduled repayments
required to be made thereunder prior to such date of determination, in an amount
equal to such excess; and in each such case the Borrowers shall prepay the Loans
and all other amounts owing under the Loan Documents as provided in Section
3.6(a).
2.5 Extension of Termination Date. The Borrowers may, on not more
than two (2) occasions, request that the Termination Date (the "Existing
Termination Date") then in effect be extended to the date one (1) year following
such Existing Termination Date (the "Extension Date"). Such request shall be
made by written notice to the Lender not less than 90 days prior to the Existing
Termination Date. If such notice of request for extension is so timely made, and
all of the conditions precedent to the extension of the Termination Date set
forth in Section 5.3 shall have been satisfied or waived by the Lender, then,
the Lender may, in its sole discretion, approve such extension of the Existing
Termination Date by notice to the Borrowers, whereupon, effective as of the date
immediately prior to the Existing Termination Date, the Extension Date shall
become the "Termination Date" for all purposes of the Loan Documents, and the
Existing Termination Date shall cease to be the "Termination Date" for purposes
of the Loan Documents. If the Lender is at the time of such extension the holder
of a Note, the Borrowers shall execute and deliver to the Lender a substitute
Note setting forth such new Termination Date.
2.6 Substitution of Eligible Properties. The Borrowers shall have
the right, upon not less than 30 days notice to the Lender, to substitute a new
Property for an Eligible Property included in the Collateral; provided, that (a)
such Property shall satisfy all of the Eligibility Criteria as an Eligible
Property, and the Borrowers shall provide the Lender with such information as
the Lender shall reasonably request to confirm the same; (b) all of the
conditions specified in Section 5.2(c) and (d) shall have been satisfied with
respect to such new Property and the environmental searches and reports required
under Section 6.8(f) shall have been performed and delivered; (c) the
representations and warranties specified in Sections 4.20 and 4.21 (with respect
to such new Property) shall be true and correct in all material respects after
giving effect to such requested substitution; (d) if the appraisal on such
Property is dated more than 24 months prior to the date of such requested
substitution, the Lender shall have the right to receive a new appraisal by an
appraiser, and in form, satisfactory to the Lender; (e) the sum of the Appraised
Value of such new Property, plus the amount of any concurrent reduction of the
Commitment made pursuant to Section 2.4(c) divided by 65%, shall be not less
than the Appraised Value of the Property being substituted; and (f) after giving
effect to such substitution, no Default or Event of Default shall have occurred
and be continuing; provided, further, however, that if such new Property is a
Property that has been released from the Lien of the CMBS Documents and would
not satisfy the requirements set forth in clause (b) and (c) of the immediately
preceding proviso solely because the representation in Section 4.21(b) would not
be true and correct, the Borrowers may nonetheless substitute such Eligible
Property for such new Property as long as the Borrowers prepay the Loans
pursuant to Section 3.5 not later than five Business Days following the date the
Borrowers receive any proceeds of any Award in respect of such new Property in
an amount equal to the greater of 65% of the Appraised Value of such new
Property and the amount of the Award received in respect of such new Property.
If the conditions specified in the immediately preceding sentence shall have
been satisfied, the substituted Eligible Property shall cease to be an Eligible
Property and the Lender shall release the substituted Eligible Property from the
Liens of the Mortgages, and the new Property shall thereafter be deemed to be an
Eligible Property for all purposes of the Loan Documents.
SECTION 3. GENERAL PROVISIONS APPLICABLE TO LOANS
3.1 Interest Rates and Payment Dates.
-17-
(a) Each Eurodollar Loan shall bear interest for each day during
each Interest Period with respect thereto at a rate per annum equal to the
Eurodollar Rate determined for such day plus the Applicable Margin.
(b) If any Event of Default shall have occurred and be continuing,
the principal of all Loans and any interest, non-usage fee or other amount then
due and payable hereunder shall bear interest at a rate per annum which is (x)
in the case of principal, the rate that would otherwise be applicable thereto
pursuant to the foregoing provisions of this Section plus 2.50% or (y) in the
case of any such overdue interest, non-usage fee or other amount, the rate
described in paragraph (a) of this Section plus 2.50%, in each case from the
date of such Event of Default until such Event of Default is cured or waived in
accordance with this Agreement (as well after as before judgment).
(c) Interest shall be payable in arrears on each Payment Date,
provided that interest accruing pursuant to paragraph (b) of this Section shall
be payable from time to time on demand. 3.2 Continuation. Any Eurodollar Loans
shall be Continued as such upon the expiration of the then current Interest
Period with respect thereto.
3.3 [Reserved].
3.4 Repayment of Loans; Evidence of Debt.
(a) Each of the Borrowers hereby unconditionally promises, jointly
and severally, to pay to the Lender the then unpaid principal amount of each
Loan on the Termination Date. Each of the Borrowers hereby further agrees,
jointly and severally, to pay interest on the unpaid principal amount of the
Loans from time to time outstanding from the date hereof until payment in full
thereof at the rates per annum, and on the dates, set forth in Section 3.1.
(b) The Lender shall maintain in accordance with its usual practice
an account or accounts evidencing indebtedness of the Borrowers to the Lender
resulting from each Loan from time to time, including the amounts of principal
and interest payable and paid to the Lender from time to time under this
Agreement.
(c) The Borrowers agree that, upon the request by the Lender, the
Borrowers will execute and deliver to the Lender a promissory note of the
Borrowers evidencing the Loans of the Lender, substantially in the form of
Exhibit A, with appropriate insertions as to date and principal amount (a
"Note").
3.5 Optional Prepayments. The Borrower may at any time prepay the
Loans, in whole or in part, upon irrevocable notice to the Lender (in the form
of Annex III) prior to 2:00 p.m., New York City time, at least three Business
Days prior thereto, specifying the date and amount of prepayment. If any such
notice is given, the amount specified in such notice shall be due and payable on
the date specified therein, (a) together with any amounts payable pursuant to
Section 3.13 and (b) if prepaid in full, a prepayment fee in an amount equal to
the present value (as calculated by the Lender based upon a discount rate based
upon the interpolated Eurodollar Rate for the period from the date of such
prepayment to the Termination Date, as determined by the Lender) of the
Non-Usage Amount for each month after the date of such prepayment until the
Termination Date, assuming that the outstanding principal amount of the Loans
would not be further optionally prepaid. Partial prepayments pursuant to this
Section shall be in an aggregate principal amount of $1,000,000 or a whole
multiple of $100,000 in excess thereof, exclusive of any fees or accrued
interest then due.
-18-
3.6 Mandatory Prepayments.
(a) If on any date the aggregate outstanding principal amount of the
Loans exceeds the Commitment, the Borrowers shall immediately prepay the Loans
in an amount equal to the amount of such excess.
(b) If Aged Truck Facility is made available, and if on any date the
excess of the aggregate value of all "Collateral" (as defined in the Aged Truck
Loan Documents) (or similar definition) over the aggregate outstanding principal
amount of the loans under the Aged Truck Loan Documents is less than
$50,000,000, then the Borrowers shall within 90 days after such date prepay the
Loans such that the aggregate outstanding principal amount of the Loans shall
not exceed 75% of the aggregate initial Appraised Values of the Eligible
Properties. Concurrently with such prepayment, the Commitment shall, if then
greater than 75% of the aggregate initial Appraised Values of the Eligible
Properties, automatically be reduced upon such prepayment to an amount equal to
75% of the aggregate initial Appraised Values of the Eligible Properties.
(c) Any prepayment of Loans and/or reduction of Commitment pursuant
to this Section, and the rights of the Lender in respect thereof, are subject to
the provisions of Section 3.9 and 3.12.
3.7 Computation of Interest and Fees.
(a) All non-usage fees and interest shall be calculated on the basis
of a 360-day year for the actual days elapsed. The Lender shall as soon as
practicable notify the Borrowers of each determination of a Eurodollar Rate. Any
change in the interest rate on a Loan resulting from a change in the
Eurocurrency Reserve Requirements shall become effective as of the opening of
business on the day on which such change becomes effective. The Lender shall as
soon as practicable notify the Borrowers, by facsimile transmission or
electronic mail, of the effective date and the amount of each such change in
interest rate.
(b) Each determination of an interest rate by the Lender pursuant to
any provision of this Agreement shall be conclusive and binding on the Borrowers
in the absence of manifest error. The Lender shall, at the request of the
Borrowers, deliver to the Borrowers a statement showing the quotations used by
the Lender in determining any interest rate pursuant to Section 3.1(a).
3.8 Inability to Determine Interest Rate. If prior to the first day
of any Interest Period:
(a) the Lender shall have determined (which determination shall be
conclusive and binding upon the Borrowers) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, or
(b) the Lender shall have determined that the Eurodollar Rate
determined or to be determined for such Interest Period will not adequately and
fairly reflect the cost to the Lender (as conclusively certified by the Lender)
of making or maintaining their affected Loans during such Interest Period,
the Lender shall give facsimile or electronic mail notice thereof to the
Borrowers as soon as practicable thereafter. If such notice is given and until
such notice has been withdrawn by the Lender the Eurodollar Base Rate shall be
determined as provided in the proviso to the definition of "Eurodollar Rate" in
Section
-19-
1.1. The Lender shall withdraw any such notice pursuant to clauses (a) or (b)
above if the Lender determines that the relevant circumstances have ceased to
exist.
3.9 Payments.
All payments (including prepayments) to be made by the Borrowers
hereunder, whether on account of principal, interest, fees or otherwise, shall
be made without set-off or counterclaim and shall be made prior to 5:00 p.m.,
New York City time, on the due date thereof to the Lender, in Dollars and in
immediately available funds, in accordance with the instructions designated in
the Account and Payment Instructions Certificate as the Lender payment
instructions, or as otherwise specified by the Lender; provided that the
Collection Sub-Account Deposits shall be paid and deposited into the Collection
Sub-Account. If any payment hereunder (other than payments on Loans) becomes due
and payable on a day other than a Business Day, such payment shall be extended
to the next succeeding Business Day, and, with respect to payments of principal,
interest thereon shall be payable at the then applicable rate during such
extension. If any payment on a Loan becomes due and payable on a day other than
a Business Day, the maturity thereof shall be extended to the next succeeding
Business Day unless the result of such extension would be to extend such payment
into another calendar month in which event such payment shall be made on the
immediately preceding Business Day. In the case of any extension of any payment
of principal pursuant to the preceding two sentences, interest thereon shall be
payable at the then applicable rate during such extension.
3.10 Illegality. Notwithstanding any other provision herein, if the
adoption of or any change in any Requirement of Law or in the interpretation or
application thereof shall make it unlawful for the Lender to make or maintain
Eurodollar Loans as contemplated by this Agreement, the Eurodollar Base Rate
shall be determined as provided in the proviso to the definition of "Eurodollar
Rate" in Section 1.1.
3.11 Requirements of Law.
(a) If the adoption of or any change in any Requirement of Law or in
the interpretation or application thereof or compliance by the Lender with any
request or directive (whether or not having the force of law) from any central
bank or other Governmental Authority made subsequent to the date hereof:
(i) does or shall subject the Lender to any tax of any kind
whatsoever with respect to this Agreement, any Note or any Eurodollar Loan
made by it, or change the basis of taxation of payments to the Lender in
respect thereof (except for Non-Excluded Taxes covered by Section 3.12 and
changes in the rate of tax on the overall net income of the Lender);
(ii) does or shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of, advances,
loans or other extensions of credit by, or any other acquisition of funds
by, any office of the Lender which is not otherwise included in the
determination of the Eurodollar Rate; or
(iii) does or shall impose on the Lender any other condition;
and the result of any of the foregoing is to increase the cost to the Lender, by
an amount which the Lender deems to be material, of making, Continuing or
maintaining Eurodollar Loans or to reduce any amount receivable hereunder in
respect thereof, then, in any such case, the Borrowers shall promptly, after
-20-
receiving notice as specified in clause (e) of this Section, pay the Lender such
additional amount or amounts as will compensate the Lender for such increased
cost or reduced amount receivable.
(b) If claiming any additional amounts payable pursuant to this
Section 3.11 or Section 3.12, the Lender shall use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions and
so long as, in its sole determination, such efforts would not be disadvantageous
to it) to file any certificate or document reasonably requested in writing by
the Borrowers if the making of such a filing would avoid the need for or reduce
the amount of any such additional amounts.
(c) If the Lender shall have determined that the adoption of or any
change in any Requirement of Law regarding capital adequacy or in the
interpretation or application thereof or compliance by the Lender or any
corporation controlling the Lender with any request or directive regarding
capital adequacy (whether or not having the force of law) from any Governmental
Authority made subsequent to the date hereof shall have the effect of reducing
the rate of return on the Lender's or such corporation's capital as a
consequence of its obligations hereunder to a level below that which the Lender
or such corporation could have achieved but for such adoption, change or
compliance (taking into consideration the Lender's or such corporation's
policies with respect to capital adequacy) by an amount deemed by the Lender to
be material, then from time to time, the Borrowers shall promptly pay to the
Lender such additional amount or amounts as will compensate the Lender for such
reduction.
(d) If the Lender becomes entitled to claim any additional amounts
pursuant to this Section, it shall promptly notify the Borrowers of the event by
reason of which it has become so entitled. A certificate as to any additional
amounts payable pursuant to this Section submitted by the Lender to the
Borrowers shall be conclusive in the absence of manifest error. The agreements
in this Section shall survive the termination of this Agreement and the payment
of the Loans and all other amounts payable hereunder.
3.12 Taxes.
(a) All payments made by the Borrowers under this Agreement and any
Notes shall be made free and clear of, and without deduction or withholding for
or on account of, any present or future income, stamp or other taxes, levies,
imposts, duties, charges, fees, deductions or withholdings, now or hereafter
imposed, levied, collected, withheld or assessed by any Governmental Authority,
excluding net income taxes and franchise taxes imposed in lieu of net income
taxes imposed on the Lender as a result of a present or former connection
between the Lender and the jurisdiction of the Governmental Authority imposing
such tax or any political subdivision or taxing authority thereof or therein
(other than any such connection arising solely from the Lender having executed,
delivered or performed its obligations or received a payment under, or enforced,
this Agreement or any other Loan Documents). If any such non-excluded taxes,
levies, imposts, duties, charges, fees deductions or withholdings ("Non-Excluded
Taxes") are required to be withheld from any amounts payable to the Lender
hereunder or under any Note, the amounts so payable to the Lender shall be
increased to the extent necessary to yield to the Lender (after payment of all
Non-Excluded Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Agreement, provided, however, that the
Borrowers shall not be required to increase any such amounts payable to the
Lender if it is not organized under the laws of the United States of America or
a state thereof if the Lender fails to comply with the requirements of clause
(c) of this Section. Whenever any Non-Excluded Taxes are payable by the
Borrowers, as promptly as possible thereafter the Borrowers shall send to the
Lender for its own account a certified copy of an original official receipt
received by the Borrowers showing payment thereof. If the Borrowers fail to pay
any Non-Excluded Taxes when due to the appropriate taxing authority or fails to
remit to the Lender the required receipts or other required documentary
evidence, the Borrowers shall indemnify the Lender for any incremental taxes,
interest or penalties that
-21-
may become payable by the Lender as a result of any such failure. The agreements
in this Section shall survive the termination of this Agreement and the payment
of the Loans and all other amounts payable hereunder.
(b) In addition, the Borrowers agree to pay to the relevant
Governmental Authority in accordance with applicable law any current or future
stamp or documentary taxes or any other excise or property taxes, charges or
similar levies (including, without limitation, mortgage recording taxes and
similar fees) imposed by any Governmental Authority that arise from any payment
made hereunder or under any Note, or from the execution, delivery or
registration of, or otherwise with respect to, this Agreement or any Note
("Other Taxes").
(c) If the Lender is not a United States Person (as such term is
defined in Section 7701(a)(30) of the Code (a "US Person")) for United States
federal income tax purposes (a "Non-US Lender"), it shall deliver or caused to
be delivered to the Borrower the following properly completed and duly executed
documents:
(1) two complete and executed (x) U.S. Internal Revenue Forms
W-8BEN (or any successor form thereto) with respect to an income tax
treaty providing for a zero rate of withholding tax on interest, or (y)
U.S. Internal Revenue Service Forms W-8ECI (or any successor form
thereto); or
(2) two complete and executed U.S. Internal Revenue Service
Forms W-8BEN (or any successor form thereto), including all appropriate
attachments, documenting the status of the Lender (or Transferee) as a
Non-U.S. Lender and (y) a certificate substantially in the form of Exhibit
E (a "Non-Bank Status Certificate").
Such documents shall be delivered by the Lender on or before the date it becomes
a party to this Agreement and on or before the date, if any, the Lender (or
Transferee) changes its applicable lending office by designating a different
lending office (a "New Lending Office"). In addition, the Lender shall deliver
or cause to be delivered such Forms and/or Certificates promptly upon or before
the expiration, obsolescence or invalidity of any document previously delivered
by the Lender. Notwithstanding any other provision of this Section 3.12(c), the
Lender shall not be required to deliver any document pursuant to this Section
3.12(c) that the Lender is not legally able to deliver.
(d) The Borrowers shall not be required to indemnify the Lender or
to pay any additional amounts to the Lender in respect of any U.S. federal
income or withholding tax pursuant to paragraph (a) or (c) above to the extent
that:
(i) the obligation to withhold any amounts with respect to U.S.
federal income tax existed on the date the Lender became a party to this
Agreement or, with respect to payments to a New Lending Office, the date
the Lender designated such New Lending Office, provided, however, that
this clause (i) of this paragraph (d) shall not apply (x) to any New
Lending Office that becomes a New Lending Office as a result of an
assignment, participation, transfer or designation made at the request of
the Borrowers or (y) to the extent the indemnity payment or additional
amounts the Lender, acting through a New Lending Office, would be entitled
to receive (without regard to this paragraph (d)) do not exceed the
indemnity payment or additional amounts that the person making the
assignment, participation or transfer to the Lender or making the
designation of such New Lending Office, would have been entitled to
receive in the absence of such assignment, participation, transfer or
designation, or
-22-
(ii) the obligation to pay such indemnity payment or additional
amounts would not have arisen but for a failure by the Lender to comply
with the provisions of paragraph (c) above.
(e) Nothing contained in this Section 3.12 shall require the Lender
to make available any of its tax returns or any other information that it deems
to be confidential or proprietary.
3.13 Indemnity. The Borrowers agree to indemnify the Lender and to
hold the Lender harmless from any actual loss or expense which the Lender may
sustain or incur as a consequence of (a) default by any Borrower in making a
borrowing of or Continuation of Eurodollar Loans after any Borrower has given a
notice requesting the same in accordance with the provisions of this Agreement,
(b) default by any Borrower in making any prepayment after any Borrower has
given a notice thereof in accordance with the provisions of this Agreement or
(c) the making of a prepayment of Eurodollar Loans on a day which is not the
last day of an Interest Period with respect thereto. This covenant shall survive
the termination of this Agreement and the payment of Loans and all other amounts
payable hereunder.
3.14 Lending Offices; Change of Lending Office.
(a) Loans made by the Lender shall be made and maintained at the
Lender's Applicable Lending Office.
(b) The Lender agrees that if it makes any demand for payment under
Section 3.11 or 3.12(a), or if any adoption or change of the type described in
Section 3.10 shall occur with respect to it, it will use reasonable efforts
(consistent with its internal policy and legal and regulatory restrictions and
so long as such efforts would not be disadvantageous to it, as determined in its
sole discretion) to designate a different lending office if the making of such a
designation would reduce or obviate the need for the Borrowers to make payments
under Section 3.11 or 3.12(a), or would eliminate or reduce the effect of any
adoption or change described in Section 3.10.
SECTION 4. REPRESENTATIONS AND WARRANTIES
To induce the Lender to enter into this Agreement and to make the
Loans, the Borrowers and U-Haul International hereby represent and warrant to
the Lender that:
4.1 Financial Condition. The unaudited consolidated balance sheet of
AMERCO and its consolidated Subsidiaries as at December 31, 2004 and the related
unaudited consolidated statements of income and of cash flows for the nine-month
period ended on such date, copies of which have heretofore been furnished to the
Lender, are complete and correct and present fairly the consolidated financial
condition of U-Haul International and its consolidated Subsidiaries as at such
date, and the consolidated results of their operations and their consolidated
cash flows for the nine-month period then ended (subject to normal year-end
audit adjustments). All such financial statements, including the related
schedules and notes thereto, have been prepared in accordance with GAAP applied
consistently throughout the periods involved (except as approved by such
Responsible Officer, and as disclosed therein). Neither AMERCO nor any of its
consolidated Subsidiaries had, at the date of the most recent balance sheet
referred to above, any material Guarantee Obligation, contingent liability or
liability for taxes, or any long term lease or unusual forward or long term
commitment, including, without limitation, any interest rate or foreign currency
swap or exchange transaction or other financial derivative, which is not
reflected in the foregoing statements or in the notes thereto. During the period
from December 31, 2004 to and including the date hereof there has been no sale,
transfer or other disposition by AMERCO or any of its consolidated Subsidiaries
of any material part of its business or property and no purchase or other
acquisition of any business or property (including any Capital Stock of any
other Person) material in
-23-
relation to the consolidated financial condition of AMERCO and its consolidated
Subsidiaries at December 31, 2004.
4.2 No Change. Since December 31, 2004 there has been no development
or event which has had or could reasonably be expected to have a Material
Adverse Effect.
4.3 Existence; Compliance with Law. Each Loan Party (a) is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (b) has the power and authority, and the legal
right, to own and operate its property, to lease the property it operates as
lessee and to conduct the business in which it is currently engaged, (c) is duly
qualified as a foreign Person and in good standing under the laws of each
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires such qualification except where the failure to so
qualify could not, in the aggregate, reasonably be expected to have a Material
Adverse Effect, and (d) is in compliance with all Requirements of Law except to
the extent that the failure to comply therewith could not, in the aggregate,
reasonably be expected to have a Material Adverse Effect.
4.4 Power; Authorization; Enforceable Obligations. Each Loan Party
has the power and authority, and the legal right, to make, deliver and perform
the Loan Documents to which it is a party and, in the case of the Borrowers, to
borrow hereunder, and has taken all necessary action to authorize the execution,
delivery and performance of the Loan Documents to which it is a party and, in
the case of the Borrowers, to authorize the borrowings on the terms and
conditions of this Agreement and any Notes. No consent or authorization of,
filing with, notice to or other act by or in respect of, any Governmental
Authority or any other Person is required in connection with the borrowings
hereunder or with the execution, delivery, performance, validity or
enforceability of the Loan Documents to which any Loan Party is a party other
than the consents, authorizations, filings, notices and other acts listed on
Schedule 4.4, all of which have been obtained or made and are in full force and
effect. This Agreement has been, and each other Loan Document to which it is a
party will be, duly executed and delivered on behalf of the Loan Parties party
thereto. This Agreement constitutes, and each other Loan Document to which it is
a party when executed and delivered will constitute, a legal, valid and binding
obligation of the Loan Parties party thereto enforceable against such Loan
Parties in accordance with its terms, subject to the effects of bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and other similar
laws relating to or affecting creditors' rights generally, general equitable
principles (whether considered in a proceeding in equity or at law) and an
implied covenant of good faith and fair dealing.
4.5 No Legal Bar. The execution, delivery and performance of the
Loan Documents to which any Loan Party is a party, the borrowings hereunder and
the use of the proceeds thereof will not violate any Requirement of Law or
Contractual Obligation (except those with respect to which consents have been
obtained as listed on Schedule 4.4 and which are in full force and effect) of
any Loan Party or of any of their respective Subsidiaries and will not result
in, or require, the creation or imposition of any Lien on any of its or their
respective properties or revenues pursuant to any such Requirement of Law or
Contractual Obligation (other than Liens created by the Security Documents in
favor of the Lender, and Liens created by the Aged Truck Loan Documents in favor
of the Aged Truck Lenders).
4.6 No Material Litigation. Except as set forth on Schedule E
attached to the certificate of U-Haul International delivered pursuant to
Section 5.1(d), as of the date hereof, no litigation, investigation or
proceeding of or before any arbitrator or Governmental Authority is pending or,
to the knowledge of the Loan Parties, threatened by or against any Loan Party or
any of their respective Subsidiaries or against any of its or their respective
properties or revenues (a) with respect to any of the Loan Documents or any of
the transactions contemplated hereby or thereby, or (b) which could reasonably
be expected to have a Material Adverse Effect.
-24-
4.7 No Default. Neither any Loan Party nor any of their respective
Subsidiaries is in default under or with respect to any of its Contractual
Obligations in any respect which could reasonably be expected to have a Material
Adverse Effect. No Default or Event of Default has occurred and is continuing.
4.8 Ownership of Property; Liens. Each Loan Party has good record
and marketable title in fee simple to, or a valid leasehold interest in, all its
real property, and good title to, or a valid leasehold interest in, all its
other property, and none of such property to the extent the same constitutes
Collateral is subject to any Lien except Liens in favor of the Lender under the
Security Documents, other Permitted Liens and, prior to the consummation of the
transactions contemplated by the Existing Loan Assignment Agreement, the Liens
created under the Existing Financing Documents (including, without limitation,
the filings and recordings existing pursuant to the Existing Financing Documents
prior to the time the releases and terminations in respect thereof to be
provided pursuant to the Existing Loan Assignment Agreement have been made).
4.9 Taxes. Each of the Loan Parties and their respective
Subsidiaries has filed or caused to be filed all tax returns which, to the
knowledge of the Loan Parties, are required to be filed and has paid all taxes
shown to be due and payable on said returns or on any assessments made against
it or any of its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority (other than any the
amount or validity of which are currently being contested in good faith by
appropriate proceedings and with respect to which reserves in conformity with
GAAP have been provided on the books of the applicable Loan Party or its
Subsidiaries, as the case may be); no tax Lien has been filed, and, to the
knowledge of the Loan Parties, no claim is being asserted, with respect to any
such tax, fee or other charge.
4.10 Federal Regulations. No part of the proceeds of any Loans will
be used for "purchasing" or "carrying" any "margin stock" within the respective
meanings of each of the quoted terms under Regulation U of the Board of
Governors of the Federal Reserve System as now and from time to time hereafter
in effect, or for any purpose which violates, or which would be inconsistent
with, the provisions of the regulations of such Board of Governors. If requested
by the Lender, the Borrowers will furnish to the Lender a statement to the
foregoing effect in conformity with the requirements of FR Form G-3 or FR Form
U-1 referred to in said Regulation U.
4.11 ERISA. Neither a Reportable Event nor an "accumulated funding
deficiency" (within the meaning of Section 412 of the Code or Section 302 of
ERISA) has occurred during the five-year period prior to the date on which this
representation is made or deemed made with respect to any Single Employer Plan,
and each Plan (other than a Multiemployer Plan or a multiemployer welfare plan
maintained pursuant to a collective bargaining agreement) has complied in all
material respects with the applicable provisions of ERISA and the Code. No
termination of a Single Employer Plan has occurred (other than a termination
described in Section 4041(b) of ERISA with respect to which any Loan Party has
incurred no liability (i) to the PBGC or (ii) in excess of $1,000,000), and no
Lien in favor of the PBGC or a Plan has arisen, during such five-year period.
Except to the extent that any such excess could not have a Material Adverse
Effect, the present value of all accrued benefits under each Single Employer
Plan (based on those assumptions used to fund such Plans) did not, as of the
last annual valuation date prior to the date on which this representation is
made or deemed made, exceed the value of the assets of such Plan allocable to
such accrued benefits. Neither any Borrower nor any Commonly Controlled Entity
has had a complete or partial withdrawal from any Multiemployer Plan for which
any withdrawal liability remains unpaid, and, to the knowledge of the Loan
Parties, any Borrower would not become subject to any material liability under
ERISA if any Borrower or any Commonly Controlled Entity were to withdraw
completely from all Multiemployer Plans as of the valuation date most closely
preceding the date on which this representation is made or deemed made. To the
knowledge of the Loan Parties, no
-25-
such Multiemployer Plan is in Reorganization or Insolvent. Except to the extent
that any such excess could not have a Material Adverse Effect, the present value
(determined using actuarial and other assumptions which are reasonable in
respect of the benefits provided and the employees participating) of the
liability of the Borrowers and each Commonly Controlled Entity for post
retirement benefits to be provided to their current and former employees under
Plans which are welfare benefit plans (as defined in Section 3(1) of ERISA)
other than such liability disclosed in the financial statements of the Borrowers
does not, in the aggregate, exceed the assets under all such Plans allocable to
such benefits.
4.12 Investment Company Act; Other Regulations. No Borrower is an
"investment company", or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended. No
Borrower is subject to regulation under any Federal or State statute or
regulation (other than Regulation X of the Board of Governors of the Federal
Reserve System) which limits its ability to incur Indebtedness.
4.13 Subsidiaries, Corporate Structure. Schedule F attached to the
certificate delivered by U-Haul International pursuant to Section 5.1(d) sets
forth as of the date hereof the name of each Loan Party, the name of each Loan
Party which is a direct or indirect Subsidiary of a Loan Party, its form of
organization, its jurisdiction of organization and the percentage of all
outstanding shares or other interests of such class of Capital Stock held by the
immediate parent entity.
4.14 Security Documents.
(a) The provisions of each Security Document are effective to create
in favor of the Lender for the ratable benefit of the Lender a legal, valid and
enforceable security interest in all right, title and interest of the Loan Party
thereto in the "Collateral" described therein.
(b) When proper financing statements have been filed in the offices
in the jurisdictions listed in Schedule 4.14(b), and the Collection Account
Control Agreement has been duly executed and delivered by the Collection Account
Bank, the Collection Sub-Account Control Agreement has been duly executed and
delivered by the Collection Sub-Account Bank, the Security Agreement shall
constitute a fully perfected first Lien (or, if the Aged Truck Facility is
provided, with respect to the Aged Truck Junior Collateral, second Lien) on, and
security interest in, all right, title and interest of the Loan Parties parties
thereto in the "Collateral" described therein.
(c) When the Mortgage Assignments have been duly recorded in the
recording offices for the counties in which the respective Eligible Properties
are located, the Lender shall have a fully perfected first mortgage Lien on each
of the Eligible Properties listed on Schedule 1.1.
4.15 Accuracy and Completeness of Information.
(a) All factual information, reports and other papers and data with
respect to the Loan Parties (other than projections) furnished, and all factual
statements and representations made, to the Lender by a Loan Party, or on behalf
of a Loan Party, were, at the time the same were so furnished or made, when
taken together with all such other factual information, reports and other papers
and data previously so furnished and all such other factual statements and
representations previously so made, complete and correct in all material
respects, and did not, as of the date so furnished or made, contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements contained therein not misleading in light of the
circumstances in which the same were made.
(b) All projections with respect to the Loan Parties furnished by or
on behalf of a Loan Party to the Lender were prepared and presented in good
faith by or on behalf of such Loan Party.
-26-
No fact is known to a Loan Party which (so far as such Loan Party can reasonably
foresee) could reasonably be expected to have a Material Adverse Effect which
has not been set forth in the financial statements referred to in Section 4.1 or
in such information, reports, papers and data referred to in this Section 4.15
or otherwise disclosed in writing to the Lender prior to the Closing Date.
4.16 Labor Relations. No Loan Party is engaged in any unfair labor
practice which could reasonably be expected to have a Material Adverse Effect.
As of the date hereof there is (a) no unfair labor practice complaint pending
or, to the best knowledge of each Loan Party and each of the Subsidiaries,
threatened against a Loan Party before the National Labor Relations Board which
could reasonably be expected to have a Material Adverse Effect and no grievance
or arbitration proceeding arising out of or under a collective bargaining
agreement is so pending or threatened; (b) no strike, labor dispute, slowdown or
stoppage pending or, to the best knowledge of each Loan Party, threatened
against a Loan Party; and (c) no union representation question existing with
respect to the employees of a Loan Party and no union organizing activities are
taking place with respect to any thereof.
4.17 Insurance. As of the date hereof, each Loan Party has, with
respect to its properties and business, insurance covering the risks, in the
amounts, with the deductible or other retention amounts, as set forth on
Schedule 6.5 and meeting the requirements of Section 6.5 hereof as of the date
hereof and the Closing Date.
4.18 Solvency. As of the date hereof, the Closing Date, and each
other date of determination, after giving effect to the Loans and the granting
of the mortgages on the Eligible Properties and the granting of the security
interests in the other Collateral to be made on or prior to such date, (i) the
amount of the "present fair saleable value" of the assets of the Borrowers,
taken as a whole, and of U-Haul International and its Subsidiaries, taken as a
whole, will, as of such date, exceed the amount of all "liabilities of the
Borrowers, taken as a whole, and of U-Haul International and its Subsidiaries,
taken as a whole, contingent or otherwise", as of such date, as such quoted
terms are determined in accordance with applicable federal and state laws
governing determinations of the insolvency of debtors, (ii) the present fair
saleable value of the assets of the Borrowers, taken as a whole, and of U-Haul
International and its Subsidiaries, taken as a whole, will, as of such date, be
greater than the amount that will be required to pay the liabilities of the
Borrowers, taken as a whole, and of U-Haul International and its Subsidiaries,
taken as a whole, on their respective debts as such debts become absolute and
matured, (iii) neither the Borrowers, taken as a whole, nor U-Haul International
and its Subsidiaries, taken as a whole, will have, as of such date, an
unreasonably small amount of capital with which to conduct their respective
businesses, and (iv) each of the Borrowers, taken as a whole, and U-Haul
International and its Subsidiaries, taken as a whole, will be able to pay their
respective debts as they mature. For purposes of this Section 4.18, "debt" means
"liability on a claim", "claim" means any (x) right to payment, whether or not
such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured
or unsecured, and (y) right to an equitable remedy for breach of performance if
such breach gives rise to a right to payment, whether or not such right to an
equitable remedy is reduced to judgment, fixed, contingent, matured or
unmatured, disputed, undisputed, secured or unsecured.
4.19 Purpose of Loans. The proceeds of the Loans shall be used by
the Borrowers to acquire by assignment all of the outstanding Indebtedness of
the Borrowers under the Existing Financing Documents, and for working capital
purposes in the ordinary course of business.
4.20 Environmental Matters. Except as disclosed on Schedule 4.20,
(a) The Eligible Properties, and all businesses or operations
conducted thereon are in compliance with all Environmental Laws;
-27-
(b) The Borrowers and U-Haul International hold and have held all
permits, licenses, registrations and authorizations ("Environmental Permits")
required for their operations at the Eligible Properties and are and have been
in compliance with the Environmental Permits, except insofar as the absence of
or noncompliance with such Environmental Permits would not have a material
impact on the Borrowers and U-Haul International;
(c) No Hazardous Substances have been disposed of on or released (as
used herein, "release" shall have the meaning provided in 42 U.S.C. Section
9601(22)) at, onto or under the Eligible Properties, by any Borrower or U-Haul
International or, to the Borrowers' and U-Haul International's best knowledge,
after due inquiry and investigation, by any other Person; and there is no
contamination at, in, on, or under or about the Eligible Properties or violation
of any Environmental Law with respect to the Eligible Properties or the business
operated by the Borrowers or U-Haul International or any entity owning any
Eligible Properties (the "Business") which could materially interfere with the
continued operation of the Eligible Properties, or materially impair the fair
saleable value thereof;
(d) No Hazardous Substances are located in, on or under, or have
been handled, generated, stored, processed, released or discharged from the
Eligible Properties, by any Borrower or U-Haul International or, to the
Borrowers' and U-Haul International's best knowledge, after due inquiry and
investigation, by any other Person, except for those substances used by
Borrowers or Tenants in the ordinary course of their business in compliance with
all Environmental Laws and not reasonably expected to give rise to liability
under Environmental Laws;
(e) The Eligible Properties, are not subject to any private or
governmental Lien or judicial or administrative notice or action relating to or
arising under Environmental Laws and there are no facts, circumstances, or
conditions that could reasonably be expected to restrict, encumber, or result in
the imposition of special conditions under any Environmental Law with respect to
the ownership, occupancy, development, use, or transferability of any Eligible
Properties;
(f) There are no underground storage receptacles or surface
impoundments, landfills or dumps for Hazardous Substances on the Eligible
Properties;
(g) The Borrowers and U-Haul International have received no notice
of, and to the best of the Borrowers' and U-Haul International's knowledge and
belief there exists no investigation, action, proceeding, claim, notice of
violation, consent decree, consent order, administrative order or other order by
any agency, authority or unit of government or by any third party which could
result in any material liability, penalty, sanction or judgment under any
Environmental Laws with respect to any condition, use or operation of the
Eligible Properties, nor do the Borrowers nor U-Haul International know of any
basis for any of the foregoing;
(h) There is no known asbestos containing material, lead-based
paint, or PCBs, at any Eligible Properties that are not in compliance with
Environmental Laws, nor are there any endangered species' habitats or wetlands
at the Eligible Properties;
(i) The Borrowers and U-Haul International have received no notice
that, and to the best of the Borrowers' and U-Haul International's knowledge and
belief, there has been no claim by any party that, any use, operation or
condition of the Eligible Properties, has caused any nuisance or any other
liability or adverse condition on any other property, nor do the Borrowers or
U-Haul International know of any basis for such a claim;
(j) The Borrowers and U-Haul International have not knowingly waived
or released any Person's liability with regard to Hazardous Substances in, on,
under or around the Eligible Properties,
-28-
nor retained or assumed, contractually or otherwise, any other Person's
liability relative to Hazardous Substances or any claim, action or proceeding
relating thereto;
(k) Neither the Eligible Properties, nor any other property, owned
by any Borrower (i) is included or, to the Borrowers' and U-Haul International's
knowledge, after due inquiry, proposed for inclusion on the National Priorities
List issued pursuant to CERCLA by the United States Environmental Protection
Agency (the "EPA") or on any of the inventories of other potential "Problem"
sites issued by the EPA or other applicable Governmental Authority nor (ii)
otherwise identified by the EPA as a potential CERCLA site or included or, to
the Borrowers' and U-Haul International's knowledge, after due inquiry, proposed
for inclusion on any such list or inventory issued pursuant to any other
Environmental Law or issued by any other Governmental Authority; and
(l) There have been no environmental investigations, studies,
audits, tests, reviews or other analyses conducted by, on behalf of, or which
are in the possession of the Borrowers or U-Haul International (or any
representatives thereof) with respect to any Eligible Properties which have not
been delivered to the Lender prior to execution of this Agreement.
4.21 Eligible Properties. With respect to each of the Eligible
Properties, the Loan Parties hereby represent and warrant, as of the Borrowing
Date of the Loan in respect of which the such Eligible Properties were mortgaged
pursuant to the Mortgage Documents:
(a) Compliance. To the Loan Parties' knowledge, each Borrower and
each Eligible Property, and the use and operation thereof, comply in all
material respects with all Requirements of Law applicable to such Eligible
Property, including, without limitation, building and zoning ordinances and
codes and the Americans with Disabilities Act except where the failure to so
comply could not reasonably be expected to have a Material Adverse Effect. To
the Loan Parties' knowledge, none of the Borrowers is in default or violation in
any material respect of any order, writ, injunction, decree or demand of any
Governmental Authority in respect of such Eligible Property which default or
violation could reasonably be expected to have a Material Adverse Effect and no
Borrower has received a written notice of any such default or violation. There
has not been committed by any Borrower or, to the Loan Parties' knowledge, any
other Person in occupancy of or involved with the operation or use of any such
Eligible Property any act or omission affording any Governmental Authority the
right of forfeiture as against such Eligible Property or any part thereof or any
monies paid in performance of Borrowers' obligations under any of the Loan
Documents.
(b) Condemnation. Except with respect to Eligible Properties which
have been substituted for other Eligible Properties pursuant to Section 2.6 and
by virtue of the second proviso thereto (and after giving effect to such
substitution), no Condemnation or other proceeding has been commenced or, to the
Loan Parties' knowledge, is threatened or contemplated with respect to all or
any portion of such Eligible Property or for the relocation of roadways
providing access to such Eligible Property, except where such Condemnation or
other proceeding could not reasonably be expected to have a Material Adverse
Effect.
(c) Utilities And Public Access; Parking. Such Eligible Property has
adequate rights of access to public ways and is served by water, sewer, sanitary
sewer and storm drain facilities adequate to service such Eligible Property for
full utilization of such Eligible Property for its current uses. All public
utilities necessary to the full use and enjoyment of such Eligible Property as
currently used and enjoyed are located either in the public right-of-way
abutting such Eligible Property (which are connected so as to serve such
Eligible Property without passing over other property) or in recorded easements
serving such Eligible Property. All roads necessary for the use of such Eligible
Property for its current purposes have been completed and dedicated to public
use and accepted by all Governmental Authorities.
-29-
Such Eligible Property has, or is served by, parking to the extent required to
comply with all Requirements of Law. The representations in this subsection (c)
only apply to a Eligible Property to the extent of improvements constructed and
completed.
(d) Separate Lots. Such Eligible Property is assessed for real
estate tax purposes as one or more wholly independent tax lot or lots, separate
from any adjoining land or improvements not constituting a part of such lot or
lots, and no other land or improvements is assessed and taxed together with such
Eligible Property or any portion thereof.
(e) Assessments. To the Loan Parties' knowledge after due inquiry,
there are no pending or proposed special or other assessments for public
improvements or otherwise affecting such Eligible Property, nor are there any
contemplated improvements to such Eligible Property that may result in such
special or other assessments.
(f) Use Of Property. Such Eligible Property is primarily used as a
U-Haul moving center, or other moving storage facility.
(g) Certificate Of Occupancy; Licenses. All certifications, permits,
licenses and approvals, including, without limitation, certificates of
completion or occupancy and any applicable liquor license (provided that the
permanent liquor license may not have been issued as of the date hereof)
required for the legal use, occupancy and operation of such Eligible Property as
of the date hereof, have been obtained and are valid and in full force and
effect except when the failure to obtain the same or for the same to be valid
and in full force and effect could not reasonably be expected to have a Material
Adverse Effect. Borrowers shall keep and maintain or cause to be kept and
maintained all licenses necessary for the operation of such Eligible Property
for the purpose intended herein, except to the extent so to keep and maintain
the same, or cause the same to be kept and maintained, could not reasonably be
expected to have a Material Adverse Effect. The use being made of such Eligible
Property is in conformity with the certificate of occupancy and any permits or
licenses issued for such Eligible Property, except to the extent that the
failure to be so in conformity could not reasonably be expected to have a
Material Adverse Effect.
(h) Flood Zone. None of the improvements on such Eligible Property
are located in an area identified by the Federal Emergency Management Agency as
an area having special flood hazards, or, if any portion of the improvements is
located within such area, the Borrower owning such Eligible Property has
obtained the insurance prescribed in Schedule 6.5.
(i) Physical Condition. To the Loan Parties' knowledge, such
Eligible Property, including, without limitation, all buildings, improvements,
parking facilities, sidewalks, storm drainage systems, roofs, plumbing systems,
HVAC systems, fire protection systems, electrical systems, equipment, elevators,
exterior sidings and doors, landscaping, irrigation systems and all structural
components, in each case to the extent constructed and completed, are in good
condition, order and repair in all material respects. To the Loan Parties'
knowledge, there exists no structural or other material defects or damages in
such Eligible Property, as a result of a casualty or otherwise, and whether
latent or otherwise. No Borrower has received notice from any insurance company
or bonding company of any defects or inadequacies in such Eligible Property, or
any part thereof, which would adversely affect the insurability of the same or
cause the imposition of extraordinary premiums or charges thereon or of any
termination or threatened termination of any policy of insurance or bond.
(j) Boundaries. (a) None of the improvements which were included in
determining the appraised value of such Eligible Property lie outside the
boundaries and building restriction lines of such Eligible Property to any
material extent, and (b) no improvements on adjoining properties encroach
-30-
upon such Eligible Property and no easements or other encumbrances upon such
Eligible Property encroach upon any of the improvements so as to materially
affect the value or marketability of Eligible Property.
(k) Illegal Activity. No portion of such Eligible Property has been
or will be purchased with proceeds of any illegal activity, and no part of the
proceeds of the Loans will be used in connection with any illegal activity.
(l) Construction Expenses. To the Loan Parties' knowledge, all costs
and expenses of any and all labor, materials, supplies and equipment used in the
construction or repair of improvements on each Eligible Property have been paid
in full. To the Loan Parties' knowledge, no Liens for payment for work, labor or
materials affecting such Eligible Property have been filed.
(m) Permitted Encumbrances. No Liens on such Eligible Property, not
prohibited hereunder, individually or in the aggregate, materially and adversely
affects the value of such Eligible Property, or impairs the intended use or the
operation of such Eligible Property.
SECTION 5. CONDITIONS PRECEDENT
5.1 Conditions to Initial Loans. The agreement of the Lender to take
assignment of the loans under the Existing Loan Agreement, to amend and restate
the Existing Loan Agreement as provided herein and to make the initial Loan
requested to be made by it is subject to the satisfaction, immediately prior to
or concurrently with the making of such Loan on the Closing Date, of the
following conditions precedent:
(a) Loan Documents. The Lender shall have received:
(i) this Agreement, executed and delivered by a duly authorized
officer of each Loan Party, with a counterpart for the Lender;
(ii) for the account of the Lender, if requested, a Note of the
Borrowers conforming to the requirements hereof and executed by a duly
authorized officer of the Borrowers;
(iii) the Existing Loan Assignment Agreement, executed and delivered
by a duly authorized officer of each Loan Party and the Agent under the
Existing Loan Agreement, on behalf of the Existing Creditors;
(iv) the Guarantee, executed and delivered by a duly authorized
officer of U-Haul International, with a counterpart or a conformed copy
for the Lender;
(v) the Security Agreement, executed and delivered by a duly
authorized officer of each Borrower, with a counterpart or conformed copy
for the Lender;
(vi) each of the Mortgage Assignments, executed and delivered by a
duly authorized officer of each party thereto, with a counterpart or
conformed copy for the Lender;
(vii) the Collection Account Control Agreement, executed and
delivered by a duly authorized officer of U-Haul International and the
Collection Account Bank, with a counterpart or conformed copy for the
Lender;
-31-
(viii) the Collection Sub-Account Control Agreement, executed and
delivered by a duly authorized officer of U-Haul International and the
Collection Sub-Account Bank, with a counterpart or conformed copy for the
Lender;
(ix) the Concentration Account Direction Letter, executed and
delivered by a duly authorized officer of each of the Loan Parties to the
Concentration Account Bank;
(x) the CMBS Direction Letter, executed and delivered by a duly
authorized officer of each of the Loan Parties to the CMBS Bank;
(xi) the Environmental Indemnity Agreement;
(xii) the Account and Payment Instructions Certificate, duly
executed and delivered by a Responsible Officer of each of the Borrowers
and U-Haul International; and
(xiii) a report and diagram of the cash flow structure for the
transactions contemplated by this Agreement, such report and diagram to be
certified as complete and correct by a Responsible Officer of each of the
Loan Parties.
(b) Related Agreements. The Lender shall have received, true and
correct copies, certified as to authenticity by the Borrowers, of the Governing
Documents of each Loan Party, and such other documents or instruments as may be
reasonably requested by the Lender.
(c) Concurrent Transactions. All amounts owing to the Existing
Creditors under the Existing Financing Documents shall be assigned and
transferred to the Lender pursuant to the Existing Loan Assignment Agreement,
and any Liens created pursuant to the Existing Financing Documents shall be
released (except as to the Liens on the Eligible Properties and the other
Collateral, which shall be assigned to the Lender pursuant to the Mortgage
Assignments and the Existing Loan Assignment Agreement, and except to the extent
that the Existing Loan Assignment Agreement provides for such releases to be
provided subsequent to the Closing Date), and all other documents, instruments
and agreements required to be delivered, and all other actions required to be
taken for the Existing Loan Assignment Agreement to be effective shall have been
duly delivered or taken.
(d) Secretary's Certificates. The Lender shall have received, with a
counterpart for the Lender, a certificate of each Loan Party, dated the Closing
Date, substantially in the form of Exhibit E, with appropriate insertions and
attachments, satisfactory in form and substance to the Lender, executed by the
Treasurer and the Secretary of such Loan Party.
(e) Proceedings of the Loan Parties. The Lender shall have received,
with a counterpart for the Lender, a copy of the resolutions, in form and
substance satisfactory to the Lender, of the Board of Directors of each Loan
Party authorizing (i) the execution, delivery and performance of this Agreement
and the other Loan Documents to which it is a party, (ii) the borrowings
contemplated hereunder and (iii) the granting by it of the Liens created
pursuant to the Security Documents, certified by the Secretary or an Assistant
Secretary of such Loan Party as of the Closing Date, which certification shall
be included in the certificate delivered in respect of such Loan Party pursuant
to Section 5.1(d), shall be in form and substance satisfactory to the Lender and
shall state that the resolutions thereby certified have not been amended,
modified, revoked or rescinded.
(f) Incumbency Certificates. The Lender shall have received, with a
counterpart for the Lender, a certificate of each Loan Party, dated the Closing
Date, as to the incumbency and signature of the officers of such Loan Party
executing any Loan Document, which certificate shall be included in
-32-
the certificate delivered in respect of such Loan Party pursuant to Section
5.1(d), shall be satisfactory in form and substance to the Lender, and shall be
executed by the President or any Vice President and the Secretary or any
Assistant Secretary of such Loan Party.
(g) Governing Documents. The Lender shall have received, with a
counterpart for the Lender, true and complete copies of the Governing Documents
of each Loan Party, certified as of the Closing Date as complete and correct
copies thereof by the Secretary or an Assistant Secretary of such Loan Party,
which certification shall be included in the certificate delivered in respect of
such Loan Party pursuant to Section 5.1(d) and shall be in form and substance
satisfactory to the Lender.
(h) Good Standing Certificates. The Lender shall have received, with
a copy for the Lender, certificates dated as of a recent date from the Secretary
of State or other appropriate authority, evidencing the good standing of each
Loan Party (i) in the jurisdiction of its organization and (ii) in each other
jurisdiction where its ownership, lease or operation of property or the conduct
of its business requires it to qualify as a foreign Person except, as to this
subclause (ii), where the failure to so qualify would not have a Material
Adverse Effect.
(i) Consents, Licenses and Approvals. The Lender shall have
received, with a counterpart for the Lender, a certificate of a Responsible
Officer of the Borrowers (i) attaching copies of all consents, authorizations
and filings referred to in Section 4.4, and (ii) stating that such consents,
licenses and filings are in full force and effect, and each such consent,
authorization and filing shall be in form and substance satisfactory to the
Lender.
(j) Fees. The Lender shall have received (i) a loan fee in an amount
equal to $8,900,000, (ii) an amount equal to $500,000 in respect of legal costs
related to the Facility and (iii) an amount equal to $200,000 in respect of
closing costs related to the Facility, provided, however, that any amounts
previously paid pursuant to the Commitment Letter in respect of such items shall
be credited thereto for purposes of this Section 5.1(j).
(k) Legal Opinions. The Lender shall have received, with a
counterpart for the Lender, the executed legal opinions of Xxxxxx Xxxxxx
Xxxxxxxx LLP, special counsel to the Borrowers and the other Loan Parties,
substantially in the form of Exhibit G-1, and Xxxxxxxx Xxxxxxx, Esq.,
substantially in the form of Exhibit G-2, and the local counsel listed on
Schedule 5.1(k), substantially in the form of Exhibit G-3. Each such legal
opinion shall cover such other matters incident to the transactions contemplated
by this Agreement as the Lender may reasonably require.
(l) Actions to Perfect Liens. The Lender shall have received
evidence in form and substance satisfactory to it that all filings, recordings,
registrations and other actions, including, without limitation, the filing of
duly executed financing statements on form UCC-1, necessary or, in the opinion
of the Lender, desirable to perfect the Liens created by the Security Documents
shall have been completed.
(m) Mortgage Assignments. With respect to each Eligible Property and
each Mortgage Assignment (it being agreed that with respect to the Eligible
Properties listed in Schedule 1.1 indicated by footnote stating that the
recorded Existing Mortgage with respect thereto has not yet been returned by the
local recording office with respect thereto, until such Existing Mortgage is so
returned the Borrowers shall not be obliged to provide executed Mortgage
Assignments and copy of recorded Existing Mortgage), the Lender shall have
received:
(i) a Local Counsel Checklist with respect to such Eligible
Property, duly completed by the applicable local counsel of the Borrowers
with respect to such Eligible Property,
-33-
(ii) a copy of the recorded Existing Mortgage on such Eligible
Property in connection with the Existing Loan Agreement,
(iii) a copy of the existing title policy issued in connection with
such Existing Mortgage for such Eligible Property, and an endorsement
thereto issued by the applicable title company endorsing such title policy
in favor of the Lender, and
(iv) a copy of the legal opinion issued in connection with such
Existing Mortgage for such Eligible Property (or a new legal opinion with
respect thereto);
and each such completed Local Counsel Checklist, and all items delivered to the
Lender in respect of such Eligible Property, shall be satisfactory to the Lender
and its counsel in all respects.
(n) Lien Searches. The Lender shall have received the results of a
recent search by a Person satisfactory to the Lender of the Uniform Commercial
Code, judgment and tax lien filings which may have been filed with respect to
personal property of each Loan Party, and the results of such search shall be
satisfactory to the Lender.
(o) Insurance. The Lender shall have received evidence in form and
substance satisfactory to it that all of the requirements of Section 6.5 hereof
shall have been satisfied.
(p) Additional Matters. All partnership, corporate and other
proceedings, and all documents, instruments and other legal matters in
connection with the transactions contemplated by this Agreement and the other
Loan Documents shall be satisfactory in form and substance to the Lender, and
the Lender shall have received such other documents and legal opinions in
respect of any aspect or consequence of the transactions contemplated hereby or
thereby as it shall reasonably request.
5.2 Conditions to Each Loan. The agreement of the Lender to make any
Loan requested to be made by it on any date (including, without limitation, its
initial Loan), to take assignment of the loans under the Existing Loan Agreement
on the Closing Date and to amend and restate the Existing Loan Agreement is
subject to the satisfaction of the following conditions precedent:
(a) Representations and Warranties. Each of the representations and
warranties made by the Borrower and the other Loan Parties in or pursuant to the
Loan Documents shall be true and correct in all material respects on and as of
such date as if made on and as of such date (unless such representation and
warranty is made as of an earlier date in which case such representation and
warranty shall be true and correct as of such earlier date).
(b) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to the Loans requested to
be made on such date.
(c) Mortgages. With respect to any Eligible Property to be subject
to a Mortgage (other than the initial Eligible Properties on the Closing Date to
be covered by the Mortgage Assignments and the Local Counsel Checklists pursuant
to Section 5.1(a)(vi) and (m)), the Lender shall have received:
(i) Mortgages. The Lender shall have received a Mortgage covering
such Eligible Property, executed and delivered by a duly authorized
officer of the applicable Borrowers party thereto, with a counterpart or a
conformed copy for each Lender.
(ii) Surveys. The Lender shall have received, and the title
insurance company issuing the policy referred to in Section 5.1(o) (the
"Title Insurance Company") shall have
-34-
received, copies of all existing maps or plats of as built surveys of the
sites of the property covered by each Mortgage, to the extent the same are
available; provided that if existing surveys do not exist, the Borrowers
shall not be required to obtain new surveys.
(iii) Title Insurance Policy. The Lender shall have received in
respect of each parcel covered by each Mortgage a mortgagee's title policy
(or policies) or marked up unconditional binder for such insurance dated
the Closing Date. Each such policy shall (i) be in an amount satisfactory
to the Lender; (ii) be issued at ordinary rates; (iii) insure that the
Mortgage insured thereby creates a valid first Lien on such parcel free
and clear of all defects and encumbrances, except such as may be approved
by the Lender; (iv) name the Lender for the benefit of the Lenders as the
insured thereunder; (v) be in the form of ALTA Loan Policy 1970 (Amended
10/17/70); (vi) contain such endorsements and affirmative coverage as the
Lender may request and (vii) be issued by title companies satisfactory to
the Lender (including any such title companies acting as co-insurers or
reinsurers, at the option of the Lender). The Lender shall have received
evidence satisfactory to it that all premiums in respect of each such
policy, and all charges for mortgage recording tax, if any, have been
paid.
(iv) Flood Insurance. If requested by the Lender, the Lender shall
have received (i) a policy of flood insurance which (A) covers any parcel
of improved real property which is encumbered by any Mortgage, (B) is
written in an amount not less than the outstanding principal amount of the
indebtedness secured by such Mortgage which is reasonably allocable to
such real property or the maximum limit of coverage made available with
respect to the particular type of property under the Act, whichever is
less, and (C) has a term ending not later than the maturity of the
indebtedness secured by such Mortgage and (ii) confirmation that the
Company has received the notice required pursuant to Section 208(e)(3) of
Regulation H of the Board of Governors of the Federal Reserve System.
(v) Copies of Documents. The Lender shall have received a copy of
all recorded documents referred to, or listed as exceptions to title in,
the title policy or policies referred to in Section 5.1(o) and a copy,
certified by such parties as the Lender may deem appropriate, of all other
documents affecting the property covered by each Mortgage.
(d) Actions to Perfect Liens. The Lender shall have received
evidence in form and substance satisfactory to it that all filings, recordings,
registrations and other actions, including, without limitation, the filing of
duly executed financing statements on form UCC-1 and amendments to financing
statements on form UCC-3, necessary or, in the opinion of the Lender, desirable
to perfect the Liens created by the Security Documents in respect of all
Collateral granted to the Lender as of such Borrowing Date shall have been
completed.
Each borrowing by the Borrowers hereunder shall constitute a representation and
warranty by the Borrowers as of the date thereof that the conditions contained
in this Section 5.2 have been satisfied.
5.3 Conditions to Termination Date Extension. The agreement of the
Lender to agree to the extension of the Termination Date pursuant to Section 2.5
at any time is subject to the satisfaction of the following conditions
precedent:
(a) Request for Extension. The Lender shall have received a timely
request for extension of the Termination Date pursuant to Section 2.5.
(b) Representations and Warranties. Each of the representations and
warranties made by the Borrowers and the other Loan Parties in or pursuant to
the Loan Documents shall be true and
-35-
correct in all material respects on and as of such date as if made on and as of
such date (unless such representation and warranty is made as of an earlier date
in which case such representation and warranty shall be true and correct as of
such earlier date).
(c) No Default. No Default or Event of Default shall have occurred
and be continuing on such date or after giving effect to any Loans requested to
be made on such date.
(d) Actions to Perfect Liens. The Lender shall have received
evidence in form and substance satisfactory to it that all filings, recordings,
registrations and other actions, including, without limitation, the filing of
duly executed financing statements on form UCC-1 and amendments to financing
statements on form UCC-3, necessary or, in the opinion of the Lender, desirable
to perfect the Liens created by the Security Documents in respect of all
Collateral granted to the Lender as of such date shall have been completed.
The request by the Borrowers hereunder to extend the Termination Date as
provided in Section 2.5 shall constitute a representation and warranty by the
Borrowers as of the date thereof that the conditions contained in this Section
5.3 have been satisfied.
SECTION 6. AFFIRMATIVE COVENANTS
Each Borrower and U-Haul International hereby agrees that, so long
as any of the Commitments remain in effect or any amount is owing to the Lender
or the Lender hereunder or under any other Loan Document, the Borrowers and
U-Haul International shall:
6.1 Financial Statements. Furnish to the Lender:
(a) as soon as available, but in any event within 90 days after the
end of each fiscal year of AMERCO, a copy of the audited consolidated balance
sheet of AMERCO and its consolidated Subsidiaries as at the end of such year and
the related audited consolidated statements of operations, stockholders' equity
and cash flows for such year, setting forth in each case in comparative form the
figures for the previous year, reported on without a "going concern" or like
qualification or exception, or qualification arising out of the scope of the
audit, by BDO Xxxxxxx LLP or other independent certified public accountants of
nationally recognized standing; and
(b) as soon as available, but in any event not later than 90 days
after the end of each fiscal year of each of AMERCO Real Estate Company and
U-Haul International, the unaudited consolidated and consolidating balance sheet
of each of AMERCO Real Estate Company and U-Haul International and their
respective Subsidiaries as at the end of such year and the related unaudited
consolidated and consolidating statements of operations, stockholders' equity
and cash flows of AMERCO Real Estate Company and U-Haul International and their
respective Subsidiaries for such year, certified by a Responsible Officer of
AMERCO Real Estate Company and U-Haul International as being fairly stated in
all material respects (subject to normal year-end audit adjustments);
(c) as soon as available, but in any event not later than 60 days
after the end of each of the first three quarterly periods of each fiscal year
of each of AMERCO Real Estate Company and U-Haul International, the unaudited
consolidated and consolidating balance sheet of each of AMERCO Real Estate
Company and U-Haul International and their respective Subsidiaries as at the end
of such quarter and the related unaudited consolidated and consolidating
statements of operations, stockholders' equity and cash flows of each of AMERCO
Real Estate Company and U-Haul International and their respective Subsidiaries
for such quarter and the portion of the fiscal year through the end of such
quarter, certified
-36-
by a Responsible Officer of AMERCO Real Estate Company and U-Haul International
as being fairly stated in all material respects (subject to normal year-end
audit adjustments);
all such financial statements shall be complete and correct in all material
respects and shall be prepared in reasonable detail and in accordance with GAAP
applied consistently throughout the periods reflected therein and with prior
periods (except as approved by such accountants or officer, as the case may be,
and disclosed therein and for the absence of footnotes on interim financial
statements).
6.2 Certificates; Other Information. Furnish to the Lender:
(a) concurrently with the delivery of the financial statements
referred to in Sections 6.1(a), (b) and (c), a certificate of a Responsible
Officer of such Loan Party (i) stating that, to the best of such Officer's
knowledge, such Loan Party during such period has observed or performed all of
its covenants and other agreements, and satisfied every condition, contained in
this Agreement and the other Loan Documents to be observed, performed or
satisfied by it, and that such Officer has obtained no knowledge of any Default
or Event of Default except as specified in such certificate and (ii) showing in
detail the calculations of the ratios measured in Sections 3.6(b) and (iii)
showing a calculation of the Debt Service Coverage Ratio for the quarter then
ended;
(b) to the extent not already delivered pursuant to Section 6.2(a),
not later than eight days following the last day of each month, a schedule,
substantially in the form of Exhibit H-2 or other form approved by the Lender,
showing (with reasonable detail as to the calculation thereof, and in any event
including a reconciliation of the revenue from Eligible Properties during such
month with the amount of funds deposited to the Collection Account during such
month) (i) for each Eligible Property, the NOI of such Eligible Property and
(ii) the Combined NOI for the period of twelve consecutive months ended on such
day, certified as complete and correct by a Responsible Officer of each Loan
Party;
(c) concurrently with the delivery of the financial statements
referred to in Sections 6.1(a), (b) and (c), cash-flow accounting reports for
the Eligible Properties and the revenues derived therefrom in such format as is
reasonably approved by the Lender, each such report to be certified as complete
and correct by a Responsible Officer of the applicable Loan Party;
(d) within 10 Business Days following the Closing Date, fully
executed or complete conformed copies of the CMBS Primary Documents, certified
as true and correct by a Responsible Officer;
(e) on or prior to the eighth day of each month, either a CMBS
Properties Excess Cash Flow Report for the second preceding month prior to such
day, or online access to such information related to the CMBS Properties Excess
Cash Flow and the bank accounts related thereto as shall be reasonably
satisfactory to the Lender; and
(f) not later than eight days following the last day of each fiscal
quarter of each fiscal year of the Loan Parties, a calculation, substantially in
the form of Exhibit H-3 or other form approved by the Lender in reasonable
detail of the Debt Service Coverage Ratio for such most recently ended fiscal
quarter.
6.3 Payment of Obligations. Pay, discharge or otherwise satisfy at
or before maturity or before they become delinquent, as the case may be, all its
obligations of whatever nature, except where the amount or validity thereof is
currently being contested in good faith by appropriate proceedings and reserves
in conformity with GAAP with respect thereto have been provided on the books of
the Loan Parties.
-37-
6.4 Conduct of Business and Maintenance of Existence. Continue to
engage in business of the same general type as now conducted by it and preserve,
renew and keep in full force and effect its corporate existence and take all
reasonable action to maintain all rights, privileges and franchises necessary or
desirable in the normal conduct of its business except as otherwise permitted
pursuant to Section 7.2; comply with all Contractual Obligations and
Requirements of Law except to the extent that failure to comply therewith could
not, in the aggregate, be reasonably expected to have a Material Adverse Effect.
6.5 Maintenance of Property; Insurance. (a) Keep all property useful
and necessary in its business in good working order and condition; maintain with
financially sound and reputable insurance companies insurance on all its
property in at least such amounts and against at least such risks as are usually
insured against in the same general area by companies engaged in the same or a
similar business; and furnish to the Lender, upon written request, full
information as to the insurance carried.
(b) In addition to the requirements specified in Section 6.5(a), the
Borrowers shall maintain, or cause to be maintained, insurance with respect to
the Eligible Properties as described on Schedule 6.5.
6.6 Inspection of Property; Books and Records; Discussions. Keep
proper books of records and account in which full, true and correct entries in
conformity with GAAP and all Requirements of Law shall be made of all dealings
and transactions in relation to its business and activities; and permit
representatives of the Lender to visit and inspect any of its properties and
examine and make abstracts from any of its books and records at any reasonable
time and as often as may reasonably be desired and to discuss the business,
operations, properties and financial and other condition of the Loan Parties
with officers and employees of the applicable Loan Parties and with their
independent certified public accountants.
6.7 Notices. Promptly give notice to the Lender and the Lender of:
(a) the occurrence of any Default or Event of Default (specifying
whether the same constitutes a Rapid Amortization Event), or any Collection
Sub-Account Failure;
(b) any (i) default or event of default under any Contractual
Obligation of the Borrower or any of its Subsidiaries or (ii) litigation,
investigation or proceeding which may exist at any time between the Borrower or
any Property Entity and any Governmental Authority, which in either case could
reasonably be expected to have a Material Adverse Effect;
(c) (i) any litigation or proceeding affecting any Loan Party in
which the amount involved is $5,000,000 or more and not covered by insurance or
in which injunctive or similar relief is sought, or (ii) any litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority that is pending or, to the knowledge of any Loan Party, threatened by
or against any Loan Party or against any of its or their respective properties
or revenues (x) with respect to any of the Loan Documents or any of the
transactions contemplated hereby or thereby, or (y) which could reasonably be
expected to have a Material Adverse Effect.;
(d) of the occurrence of any transaction or occurrence referred to
in Section 3.6(a);
(e) the following events, as soon as possible and in any event
within 30 days after any Loan Party knows or has reason to know thereof: (i) the
occurrence or expected occurrence of any Reportable Event with respect to any
Plan, a failure to make any required contribution to a Plan, the creation of any
Lien in favor of the PBGC or a Plan or any withdrawal from, or the termination,
-38-
Reorganization or Insolvency of, any Multiemployer Plan or (ii) the institution
of proceedings or the taking of any other action by the PBGC or the Borrower or
any Commonly Controlled Entity or any Multiemployer Plan with respect to the
withdrawal from, or the termination, Reorganization or Insolvency of, any Plan;
and
(f) any material adverse change in the business, operations,
property or condition (financial or otherwise) of the Loan Parties or the
Eligible Properties taken as a whole.
Each notice pursuant to this Section 6.7 shall be accompanied by a
statement of a Responsible Officer setting forth details of the occurrence
referred to therein and stating what action the Borrower proposes to take with
respect thereto.
6.8 Environmental Laws.
(a) The Borrowers and U-Haul International shall, and shall cause
all property, managers, agents, employees and Tenants to: (i) comply with all
applicable Environmental Laws applicable to the Eligible Properties, and obtain
and comply with Environmental Permits required under Environmental Law, (ii)
keep or cause the Eligible Properties, to be kept free from Hazardous Substances
(except those substances used by the Borrowers or Tenants in the ordinary course
of their business), in compliance in compliance with, and not likely to give
rise to liability under Environmental Laws, (iii) not install or use, or permit
the installation or use of, any underground receptacles containing Hazardous
Substances on the Eligible Properties, (iv) expressly prohibit the use,
generation, handling, storage, production, release, processing and disposal of
Hazardous Substances by all future Tenants (except those substances used by such
Tenants in the ordinary course of their business, in compliance with, and not
likely to give rise to liability under, Environmental Laws) and use all
reasonable efforts to prevent existing Tenants and other permitted occupants of
the Eligible Properties, from taking any such actions, (v) in any event, not
install on the Eligible Properties, or permit to be installed on the Eligible
Properties PCBs, urea formaldehyde insulation, asbestos or any substance
containing asbestos or any material containing lead based paint, (vi) prohibit
the disposal and/or release of any Hazardous Substances on, at, beneath, or near
the Eligible Properties; (vii) keep all Eligible Properties free from all Liens
under Environmental laws, unless being challenged in good faith with appropriate
proceedings and in accordance with Section 6.8(e) hereof; (viii) maintain
appropriate reserves, a bond, or, if the Aged Truck Facility has been provided,
unused availability under the Aged Truck Facility, with respect to liabilities
under or non compliance with Environmental Laws, in the amounts specified in
Schedule A hereto; (ix) satisfy all financial assurance requirements under
Environmental Laws; and (x) use best efforts to obtain funds or reimbursement
from State or Local underground storage tank funds, to the extent applicable or
available.
(b) The Borrowers and U-Haul International promptly shall notify
Lender in writing should any of the Borrowers or U-Haul International become
aware of (i) any release of Hazardous Substances, or other actual or potential
environmental problem or liability, with respect to or affecting the Eligible
Properties, (ii) any Lien, notice of Lien, threatened Lien, action or notice of
violation or potential liability affecting the Eligible Properties, or any
Borrower arising under any Environmental Law, (iii) the institution of any
investigation, inquiry or proceeding concerning any Borrower or the Eligible
Properties, pursuant to any Environmental Law or otherwise relating to Hazardous
Substances, or (iv) the discovery of any occurrence, condition or state of facts
which would render any representation or warranty contained in Section 4.20 of
this Agreement incorrect in any respect if made at the time of such discovery.
The Borrowers and U-Haul International shall promptly transmit to Lender copies
of any and all citations, orders, notices or, upon written request of Lender,
other communications relating to any of the foregoing provisions of this
paragraph.
-39-
(c) Regardless of the source of contamination, the Borrowers and
U-Haul International shall, at their own expense, promptly take or cause to be
taken all actions necessary or advisable for the clean-up of the Eligible
Properties, and other property, affected by contamination in, on, under or at
the Eligible Properties, including, without limitation, all investigative,
monitoring, removal, containment and remedial actions in accordance with the all
applicable Environmental Laws (and in all events in a manner satisfactory to the
applicable Governmental Authority and Lender). The Borrowers and U-Haul
International shall further pay or cause to be paid, at no expense to the
Lender, all clean-up, administrative and enforcement costs of applicable
governmental agencies which may be asserted against the Eligible Properties. In
the event the Borrowers and U-Haul International fail to do so, or following an
Event of Default, Lender may, at its sole election, cause the Eligible
Properties, or other affected property, to be lived from any Hazardous
Substances or otherwise brought into compliance with Environmental Laws and any
cost incurred in connection therewith shall be for the account of the Borrowers
under Section 9.5. Each Borrower hereby grants to Leader access to the Eligible
Properties, and an irrevocable license to remove any items determined by Lender
to be Hazardous Substances and to do all things Lender shall deem necessary to
bring the Eligible Properties, into compliance with Environmental Laws. However,
Lender shall have no obligation to inspect or clean up any Hazardous Substances.
Lender shall not be deemed a generator of any Hazardous Substances removed from
the Eligible Properties.
(d) Upon the request of Lender, at any time (i) after the occurrence
and during the continuance of a Default or an Event of Default or (ii) Lender
has reasonable grounds to believe that (x) Hazardous Substances are or have been
released, stored or disposed of on or around the Eligible Properties, in
violation of Environmental Laws or (y) the Eligible Properties, may be in
violation of Environmental Laws, the Borrowers and U-Haul International shall
cause an investigation or audit of the Eligible Properties, to be undertaken by
a hydrogeologist or environmental engineer or other appropriate consultant
approved by Lender to determine whether any Hazardous Substances are located on,
at, beneath, or near the Eligible Properties, and/or whether the Eligible
Properties, are in compliance with Environmental Laws. The scope of any
investigation or audit shall be approved by Lender. If the Borrowers and U-Haul
International fail to provide reports of such investigation or audit within
thirty (30) days after such request, Lender may, but shall have to obligation
to, order the same. Borrowers hereby grants to Lender and Lender's contractors
access to the Eligible Properties, and an irrevocable license to undertake such
investigation or audit. All costs of any such investigation or audit shall be
for the account of the Borrowers and U-Haul International in accordance with the
terms of Section 9.5 hereof.
(e) In the event that a Lien is filed against any Eligible Property,
pursuant to any Environmental Law, the Borrowers and U-Haul International shall,
within thirty (30) days from the date that any Borrower receives notice of such
Lien (but in any event ten (10) days prior to the date of any contemplated sale
pursuant to such Lien), (i) pay the claim and remove the Lien from the Eligible
Properties; (ii) furnish (A) a bond satisfactory to Lender in the amount of the
claim out of which the Lien arises, (B) a cash deposit in the amount of the
claim out of which the Lien arises, (C) other security reasonably satisfactory
to Lender in an amount sufficient to discharge the claim out of which the Lien
arises, or (D) if the Aged Truck Facility has been made available, evidence of
adequate unused availability under the Aged Truck Facility; or (E) security in a
form and amount satisfactory to the applicable Governmental Authority pursuant
to a valid consent or other order, and the Borrowers and U-Haul International
shall promptly arrange for the removal of the Lien; or (iii) in the event the
Borrowers and U-Haul International elect to contest such lien, provide Lender
with any of the forms of security identified in Section 6.8(e)(ii) above pending
resolution of the contest. Notwithstanding the foregoing, Borrowers and U-Haul
International shall prevent a sale pursuant to any Lien.
(f) In the event that the Borrowers propose to substitute a Property
for an Eligible Property pursuant to Section 2.6, the Borrowers shall, at the
Borrowers' expense, cause an environmental
-40-
database search to be performed by a Person reasonably satisfactory to the
Lender, and, if such environmental database search discloses any condition that
in the Lender's reasonable judgment warrants such report, cause to be prepared,
by a Person reasonably satisfactory to the Lender, a Phase I or Phase II
environmental report with respect to such Property.
6.9 [Reserved].
6.10 Bank Accounts.
(a) U-Haul International shall have established and shall maintain
the Collection Account and the Concentration Account. The Borrowers and U-Haul
International have established the Local Accounts listed in the Account and
Payment Instructions Certificate. The Loan Parties shall not change any Bank
Account, or open any new Bank Account, into which any revenues of the Loan
Parties related to the Eligible Properties may be deposited without, in the case
of Local Accounts, prior notice to the Lender, and in other cases, the prior
written consent of the Lender.
(b) Each Borrower shall deposit or cause to be deposited all gross
collections, receipts and proceeds on any Collateral related to any Eligible
Properties (including, without limitation, amounts received in any Local
Accounts) into the Concentration Account, and pursuant to an irrevocable
direction letter to each of the Xxxxxxx Xxxxx CMBS Account Bank and the Xxxxxx
Xxxxxxx CMBS Account Bank, each in form and substance satisfactory to the Lender
(such direction letter, as amended, supplemented or otherwise modified with the
consent of the Lender, the "Xxxxxxx Xxxxx CMBS Bank Direction Letter" or the
"Xxxxxx Xxxxxxx CMBS Bank Direction Letter", as the case may be; and
collectively, the "CMBS Bank Direction Letters") each Loan Party shall direct
the CMBS Bank to transfer all CMBS Properties Excess Cash Flow to the Collection
Account, in each case within one Business Day of the receipt thereof. Pursuant
to an irrevocable direction letter by the Loan Parties to the Concentration
Account Bank, in form and substance satisfactory to the Lender (such direction
letter, as amended, supplemented or otherwise modified with the consent of the
Lender, the "Concentration Account Direction Letter"; collectively, the CMBS
Direction Letters and the Concentration Account Direction Letter are referred to
as the "Direction Letters"), the funds deposited in the Concentration Account
which are or shall be part of the Collateral shall be transferred daily into the
Collection Account, and no Loan Party shall instruct the Concentration Account
Bank in a manner inconsistent with the Direction Letters without the prior
written consent of the Lender. So long as no 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 6.10(b) shall
be transferred on the same Business Day back to the Concentration Account.
(c) U-Haul International shall deposit into the Collection
Sub-Account, not later than the 21st day of each calendar month, the Collection
Sub-Account Deposit for such month (or 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
Lender shall be entitled, and is hereby authorized and directed by the Loan
Parties, to withdraw the Collection Sub-Account Deposit from the Collection
Sub-Account on the next subsequent Payment Date and apply such Collection
Sub-Account Deposit to the payment of principal, interest and other Obligations
due on such Payment Date. So long as no Default, Event of Default or Collection
Sub-Account Failure 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 Concentration Account.
(d) Upon the occurrence of an Event of Default or a Collection
Sub-Account Failure, the Lender may exercise its rights under the Collection
Account Control Agreement and Collection Sub-
-41-
Account Control Agreement, and thereafter, on any Payment Date (or at such times
as the Lender may choose in its sole discretion) any amounts in the Collection
Account and Collection Sub-Account shall be applied from the Collection Account
in the following order:
(i) first, to Xxxxxxx Xxxxx Capital Services, Inc. for payment of
all net amounts payable to it in respect of Hedge Agreements with any Loan
Party;
(ii) second, to the payment of all interest, fees and expenses due
and payable under this Agreement and the other Loan Documents;
(iii) third, to the payment of principal amortization of the Loans
due pursuant to this Agreement pursuant to the Applicable Amortization
Schedule, or, if all amounts of the Loans are then due and owing, to the
payment of the principal of the Loans in full;
(iv) fourth, to the payment in full of all other Obligations; and
(v) fifth, any excess shall be remitted to the Borrowers or to such
other Person as shall be entitled thereto.
6.11 Post Closing Matters.
(a) The Loan Parties shall use their reasonable best efforts to
cause the Mortgage Assignments to be recorded as soon as possible following the
Closing Date.
(b) If the Lender, in its sole discretion, determines to permit the
Facility to close notwithstanding that all environmental and engineering due
diligence on any of the Eligible Properties is not completed prior to the
Closing Date, but continues environmental and engineering due diligence on such
Eligible Properties after the Closing Date, then
(i) if such environmental and engineering due diligence discloses
any matters which are not satisfactory to the Lender acting reasonably,
then either (A) the Loan Parties shall provide the Lender within ten (10)
Business Days with (1) satisfactory environmental or engineering insurance
insuring the Lender in respect of such matters, and/or (2) satisfactory
reserves, bond or other financial assurance, conforming to the
requirements of Section 6.8(e)(ii), to account for any liability
(including any contingent liability) arising therefrom, or (B) such
Eligible Property shall cease to be an Eligible Property for purposes of
this Agreement, and
(ii) Schedule 4.20 shall be amended to reflect the results of such
additional environmental and engineering due diligence.
(c) If the Aged Truck Facility is provided to the Borrowers or
Affiliates thereof, the Loan Parties shall provide to the Lender, not later than
the date 45 days following the Closing Date, each of the Aged Truck Junior Lien
Documents and the Aged Truck Intercreditor Agreement, each executed and
delivered by a duly authorized officer of each party thereto, with a counterpart
or conformed copy for the Lender, or if the Aged Truck Facility is not so
provided to the Borrowers or Affiliates, collateral documentation satisfactory
to the Lender granting the additional Collateral referred to in Section 8(m)
within the time required therefor in such Section 8(m), as applicable.
(d) If any Mezzanine Financing is consummated in a manner such that
any of the CMBS Bank Direction Letters no longer relates to the appropriate
deposit account from which CMBS Properties Excess Cash Flow would be remitted in
connection with the related CMBS Documents, the
-42-
Borrowers and U-Haul International shall cause a new direction letter to be
provided, in form and substance substantially identical to the existing CMBS
Bank Direction Letters and otherwise satisfactory to the Lender, related to such
new appropriate deposit account, and thereupon such direction letter shall
constitute a CMBS Bank Direction Letter hereunder and such new appropriate
deposit account shall constitute a CMBS Account in connection with such CMBS
Documents.
(e) With respect to the Eligible Properties listed on Schedule 1.1
designated with property numbers 751054, 791031, 837070, 806025 and 802026, the
Borrowers and U-Haul International shall cause to be delivered to the Lender,
within 30 days following the Closing Date, each of the items listed in Section
5.1(m)(i), (ii), (iii) and (iv) and an executed Mortgage Assignment (in each
case properly referencing the correct Existing Mortgage), or if an Existing
Mortgage does not exist with respect to such Eligible Property, a new Mortgage
securing an amount satisfactory to the Lender together with each of the items
listed in Section 5.2(c)(i), (ii), (iii), (iv) and (v); and in the case of such
Mortgage Assignments or Mortgages, the Borrowers and U-Haul International shall
cause such Mortgage Assignments and Mortgages to have been submitted for
recording. If such items with respect to any such Eligible Property are not
provided to the Lender and submitted for recording within such 30-day period,
such Eligible Property shall cease to be an Eligible Property for purposes of
this Agreement.
6.12 Continuation of Lines of Business. Continue to engage in the
businesses in which the Loan Parties are engaged in on the date of this
Agreement at the Eligible Properties, except (a) to the extent that the failure
to so continue to engage in any such business at any Eligible Property resulted
from circumstances not subject to the control of the Borrowers or U-Haul
International, or (b) to the extent that the failure to so continue to engage in
any such business or businesses at the applicable Eligible Properties would not,
in the aggregate, reasonably be expected to have a Material Adverse Effect.
SECTION 7. NEGATIVE COVENANTS
The Borrowers and U-Haul International hereby agree that, so long as
any of the Commitments remain in effect or any amount is owing to the Lender
hereunder or under any other Loan Document, each Borrower and U-Haul
International shall not, directly or indirectly:
7.1 Negative Pledge. Create, incur, assume or suffer to exist any
Lien upon any Eligible Property or any Collateral, except for:
(a) Liens for taxes not yet due or which are being contested in good
faith by appropriate proceedings, provided that adequate reserves with respect
thereto are maintained on the books of the Borrowers or their respective
Subsidiaries, as the case may be, in conformity with GAAP;
(b) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of business which
are not overdue or which are being contested in good faith by appropriate
proceedings;
(c) easements, rights of way, restrictions and other similar
encumbrances incurred in the ordinary course of business;
(d) Liens on the Eligible Properties reflected on the title
insurance policies with respect thereto; and
(e) Liens created pursuant to the Security Documents.
-43-
7.2 Limitation on Fundamental Changes. 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 hereunder, or (ii) to
have a Material Adverse Effect.
7.3 Limitation on Modifications of Agreements. Amend, modify or
change, or consent or agree to any amendment, modification or change to, any of
the terms relating to the payment or prepayment or principal of or interest on,
any Indebtedness under the Aged Truck Loan Documents or the CMBS Documents,
other than:
(a) any such amendment, modification or change which would not
reasonably be expected to change the allocation of revenues thereunder.
7.4 Sale of Eligible Properties and Collateral. Sell, exchange,
transfer or otherwise dispose of any interest in any of the Eligible Properties
or any of the other Collateral, except:
(a) as provided in Section 2.6 of this Agreement with respect to
substitution of Eligible Properties;
(b) sales of Eligible Properties so long as, concurrently with such
sale and giving effect to the reduction of the Commitment resulting therefrom
under Section 2.4(c), the Loans shall be prepaid in the amount, if any, required
under Section 3.6(a); and
(c) leases of Eligible Properties in the ordinary course of
business, and easements on the Eligible Properties not prohibited by Section
7.1.
7.5 Governing Documents. Amend its certificate of incorporation
(except to increase or decrease the number of authorized shares of common stock,
to authorize the issuance of any preferred stock, to amend or expand its
directors' and officers' indemnification provisions, or to change the size of
the board of directors), partnership agreement or other Governing Documents,
without the prior written consent of the Lender, which shall not be unreasonably
withheld or delayed.
SECTION 8. EVENTS OF DEFAULT
If any of the following events shall occur and be continuing:
(a) The Borrowers shall fail to pay any principal of any Loan when
due in accordance with the terms thereof or hereof; or the Borrowers shall fail
to pay any interest on any Loan, or any other amount payable hereunder or under
the other Loan Documents, within one day after any such interest or other amount
becomes due in accordance with the terms thereof or hereof; or
(b) Any representation or warranty made or deemed made by any
Borrower or any other Loan Party herein or in any other Loan Document or which
is contained in any certificate, document or financial or other statement
furnished by it at any time under or in connection with this Agreement or
-44-
any such other Loan Document shall prove to have been incorrect in any material
respect on or as of the date made or deemed made; or
(c) Any Borrower or any other Loan Party shall default in the
observance or performance of any agreement contained in Sections 3.6, 6.10, 6.12
or 7 of this Agreement, or Section 5 of the Security Agreement; or
(d) Any Borrower or any other Loan Party shall default in the
observance or performance of any other agreement contained in this Agreement or
any other Loan Document (other than as provided in paragraphs (a) through (c) of
this Section), and such default shall continue unremedied for a period of 30
days after written notice thereof has been given by the Lender to the Borrower,
or, with respect to defaults relating to real property only and to the extent
that such default is not capable of being remedied within such period, 90 days
so long as such remedy have been commenced within such 30 day period and is
being prosecuted in good faith; or
(e) Any Borrower, or any other Loan Party or any Affiliate shall (i)
default in any payment of principal of or interest of any Indebtedness (other
than any Excluded Indebtedness (as defined below in this Section 8(e)) owing by
any Loan Party or any Affiliate thereof to the Lender or any Affiliate thereof,
or in the payment of any Guarantee Obligation owing by any Loan Party or any
Affiliate thereof to the Lender or any Affiliate thereof, beyond the period of
grace (not to exceed 30 days), if any, provided in the instrument or agreement
under which such Indebtedness or Guarantee Obligation was created; or (ii)
default in the observance or performance of any other agreement or condition
relating to any such Indebtedness or Guarantee Obligation or contained in any
instrument or agreement evidencing, securing or relating thereto, or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such
Indebtedness or beneficiary or beneficiaries of such Guarantee Obligation (or a
trustee or Lender on behalf of such holder or holders or beneficiary or
beneficiaries) to cause, with the giving of notice if required, such
Indebtedness to become due prior to its stated maturity or such Guarantee
Obligation to become payable; or (iii) any "Event of Default" shall occur under
the Aged Truck Loan Documents; as used in this Section 8(e), "Excluded
Indebtedness" means the Loans and any non-recourse Indebtedness of any Loan
Party or any Affiliate thereof (including, without limitation, the non-recourse
Indebtedness issued under the CMBS Documents); or
(f) (i) Any Loan Party shall commence any case, proceeding or other
action (A) under any existing or future law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, seeking to have an order for relief entered with respect to it, or
seeking to adjudicate it a bankrupt or insolvent, or seeking reorganization,
arrangement, adjustment, winding-up, liquidation, dissolution, composition or
other relief with respect to it or its debts, or (B) seeking appointment of a
receiver, trustee, custodian, conservator or other similar official for it or
for all or any substantial part of its assets, or the Borrower, any Loan Party
or any Property Entity of any Eligible Property shall make a general assignment
for the benefit of its creditors; or (ii) there shall be commenced against any
Loan Party any case, proceeding or other action of a nature referred to in
clause (i) above which (A) results in the entry of an order for relief or any
such adjudication or appointment or (B) remains undismissed, undischarged or
unbonded for a period of 60 days; or (iii) there shall be commenced against any
Loan Party any case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or any
substantial part of its assets which results in the entry of an order for any
such relief which shall not have been vacated, discharged, or stayed or bonded
pending appeal within 60 days from the entry thereof; or (iv) any Loan Party
shall take any action in furtherance of, or indicating its consent to, approval
of, or acquiescence in, any of the acts set forth in clause (i), (ii), or (iii)
above; or (v) any Loan Party shall generally not, or shall be unable to, or
shall admit in writing its inability to, pay its debts as they become due; or
-45-
(g) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan or any Lien in favor
of the PBGC or a Plan shall arise on the assets of any Borrower or any Commonly
Controlled Entity, (iii) a Reportable Event shall occur with respect to, or
proceedings shall commence to have a trustee appointed, or a trustee shall be
appointed, to administer or to terminate, any Single Employer Plan, which
Reportable Event or commencement of proceedings or appointment of a trustee is,
in the reasonable opinion of the Required Lender, likely to result in the
termination of such Plan for purposes of Title IV of ERISA, (iv) any Single
Employer Plan shall terminate for purposes of Title IV of ERISA, (v) the
Borrower or any Commonly Controlled Entity shall, or in the reasonable opinion
of the Required Lender is likely to, incur any liability in connection with a
withdrawal from, or the Insolvency or Reorganization of, a Multiemployer Plan or
(vi) any other event or condition shall occur or exist with respect to a Plan;
and in each case in clauses (i) through (vi) above, such event or condition,
together with all other such events or conditions, if any, could reasonably be
expected to have a Material Adverse Effect; or
(h) 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; or
(i) (i) Any of the Security Documents shall cease, for any reason,
to be in full force and effect, or any Loan Party which is a party to any of the
Security Documents shall so assert or (ii) the Lien created by any of the
Security Documents shall cease to be enforceable and of the same effect and
priority purported to be created thereby; or
(j) The Guarantee shall cease, for any reason, to be in full force
and effect or any Guarantor shall so assert; or
(k) Any Change of Control shall occur; or
(l) Unless the Borrowers have given the notice specified in Section
8(m) prior to the date 45 days following the Closing Date, in which case Section
8(m) shall apply, the closing date of the Aged Truck Facility shall not occur
within 45 days of the Closing Date; or
(m) (i) The Aged Truck Facility has not been provided to the
Borrowers or Affiliates thereof prior to the date 45 days following the Closing
Date, (ii) the Borrowers have notified the Lender in writing on or prior to such
45th day that this Section 8(m) shall be applicable, and (iii) the Loan Parties
have not prior to the date 90 days following the Closing Date caused U-Haul
Leasing & Sales Co. to grant to the Lender, as additional Collateral for the
Secured Obligations (as defined in the Security Agreement), but without U-Haul
Leasing & Sales Co. assuming any recourse on the Secured Obligations beyond such
additional Collateral, fully perfected first Liens on trucks, equipment or other
property of U-Haul Leasing & Sales Co. having a fair market value, as reasonably
determined by the Lender, of not less than $50,000,000, or, at all times during
the period from the date of such notice under clause (ii) of this Section 8(m)
to the date such Liens on such additional Collateral are granted, U-Haul Leasing
& Sales Co. shall fail to keep available, unencumbered by any other Liens,
property appropriate to be subject to such Liens as such additional Collateral
with a value of at least $50,000,000;
then, and in any such event, (A) if such event is an Event of Default specified
in clause (i) or (ii) of paragraph (f) of this Section with respect to any
Borrower, automatically the Commitment shall immediately terminate and the Loans
hereunder (with accrued interest thereon) and all other amounts
-46-
owing under this Agreement shall immediately become due and payable, and (B) if
such event is any other Event of Default, either or both of the following
actions may be taken: (i) the Lender may, by notice to the Borrowers, declare
the Commitment to be terminated forthwith, whereupon the Commitment shall
immediately terminate; and (ii) the Lender may, by notice to the Borrowers,
declare the Loans hereunder (with accrued interest thereon) and all other
amounts owing under this Agreement to be due and payable forthwith, whereupon
the same shall immediately become due and payable.
SECTION 9. MISCELLANEOUS
9.1 Amendments and Waivers. Neither this Agreement nor any other
Loan Document, nor any terms hereof or thereof may be amended, supplemented or
modified except in accordance with the provisions of this Section 9.1. The
Lender may, from time to time, (a) enter into with the Borrowers written
amendments, supplements or modifications hereto and to the other Loan Documents
for the purpose of adding any provisions to this Agreement or the other Loan
Documents or changing in any manner the rights of the Lender or of the Borrowers
hereunder or thereunder or (b) waive, on such terms and conditions as the Lender
may specify in such instrument, any of the requirements of this Agreement or the
other Loan Documents or any Default or Event of Default and its consequences.
Any such waiver and any such amendment, supplement or modification shall apply
to the Lender and shall be binding upon the Borrowers, the Lender, and all
future holders of the Loans. In the case of any waiver, the Borrowers and the
Lender shall be restored to their former positions and rights hereunder and
under the other Loan Documents, and any Default or Event of Default waived shall
be deemed to be cured and not continuing; but no such waiver shall extend to any
subsequent or other Default or Event of Default or impair any right consequent
thereon.
9.2 Notices. All notices, requests and demands to or upon the
respective parties hereto to be effective shall be in writing (including by
facsimile transmission) and, unless otherwise expressly provided herein, shall
be deemed to have been duly given or made (a) in the case of delivery by hand,
when delivered, (b) in the case of delivery by mail, three Business Days after
being deposited in the mails, postage prepaid, or (c) in the case of delivery by
facsimile transmission and electronic mail, when sent and receipt has been
electronically confirmed, addressed as follows, or to such other address as may
be hereafter notified by the respective parties hereto:
The Borrowers: Xxxxxx Xxxxxxxx
AMERCO Real Estate Company
AMERCO Real Estate Company of Texas, Inc.
AMERCO Real Estate Company of Alabama, Inc.,
U-Haul Co. of Florida, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
email: Xxxxxx_Xxxxxxxx@xxxxx.xxx
The Guarantor: Xxxx Xxxxxx
U-Haul International, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
email: XX@xxxxx.xxx
with a copy to: Xxxxxxxx Xxxxxxx, Esq.
U-Haul International, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
-00-
Xxxxxxx, Xxxxxxx 00000
email: xxxxxxxx_xxxxxxx@xxxxx.xxx
The Lender: Xxxxxxx Xxxxx Commercial Finance Corp.
4 World Financial Center, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
email: Xxxx_Xxxxxx@xx.xxx
with a copy to: Xxxxxxx Xxxxx Global Asset Based Finance
Securitization and Principal Transactions
4 World Financial Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Mr. Xxxxxx Xxxxx
Telephone: 000-000-0000
Fax: 000-000-0000
email: Xxxx_Xxxxx@xx.xxx
provided that any notice, request or demand to or upon the Lender pursuant to
Section 2.2, 3.2, 3.5 or 3.6 shall not be effective until received.
9.3 No Waiver; Cumulative Remedies. No failure to exercise and no
delay in exercising, on the part of the Lender or the Lender, any right, remedy,
power or privilege hereunder or under the other Loan Documents shall operate as
a waiver thereof; nor shall any single or partial exercise of any right, remedy,
power or privilege hereunder preclude any other or further exercise thereof or
the exercise of any other right, remedy, power or privilege. The rights,
remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
9.4 Survival of Representations and Warranties. All representations
and warranties made hereunder, in the other Loan Documents and in any document,
certificate or statement delivered pursuant hereto or in connection herewith
shall survive the execution and delivery of this Agreement and the making of the
Loans hereunder.
9.5 Payment of Expenses and Taxes. The Borrowers agree (a) to pay or
reimburse the Lender for all its out-of-pocket costs and expenses reasonably
incurred in connection with the development, preparation and execution of, and
any amendment, supplement or modification to, this Agreement and the other Loan
Documents and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, the reasonable fees and
disbursements of counsel to the Lender, (b) to pay or reimburse the Lender for
all its costs and expenses incurred in connection with the enforcement or
preservation of any rights under this Agreement, the other Loan Documents and
any such other documents, including, without limitation, the fees and
disbursements of counsel to the Lender, (c) to pay, indemnify, and hold the
Lender harmless from, any and all recording and filing fees and any and all
liabilities with respect to, or resulting from any delay in paying, stamp,
excise and other taxes, if any, which may be payable or determined to be payable
in connection with the execution and delivery of, or consummation or
administration of any of the transactions contemplated by, or any amendment,
supplement or modification of, or any waiver or consent under or in respect of,
this Agreement, the other Loan Documents and any such other documents, (d) to
pay or reimburse the Lender for all of its ongoing
-48-
out-of-pocket due diligence and monitoring expenses, provided that, so long as
no Default or Event of Default has occurred during such year, the amount of such
expenses for which the Loan Parties shall be responsible under this clause (d)
shall not exceed $25,000 during any year, and (e) to pay, indemnify, and hold
the Lender and each of its officers, employees, directors, trustees, agents,
advisors, affiliates and controlling persons (each, an "Indemnitee"), harmless
from and against any and all other liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever with respect to the execution, delivery, enforcement,
performance and administration of this Agreement, the other Loan Documents or
the use of the proceeds of the Loans, and any such other documents, including,
without limitation, any of the foregoing relating to the violation of,
noncompliance with or liability or potential liability under, any Environmental
Law applicable to the operations of each Borrower, any of its Subsidiaries, or
any of the Properties (all the foregoing in this clause (d), collectively, the
"Indemnified Liabilities"); provided, that no Borrower shall have any obligation
hereunder to any Indemnitee with respect to Indemnified Liabilities (i) to the
extent such Indemnified Liabilities are found by a court of competent
jurisdiction (which finding has not been modified, reversed or withdrawn) to
have resulted from the gross negligence or willful misconduct of such Indemnitee
or to arise out of a breach by the Lender of its obligations hereunder or under
any other Loan Document, (ii) to the extent such Borrower is the prevailing
party in any such legal proceedings, or (iii) legal proceedings commenced
against an Indemnitee by any security holder or creditor thereof arising out of
and based upon rights afforded any such security holder or creditor solely in
its capacity as such. The agreements in this Section shall survive repayment of
the Loans and all other amounts payable hereunder.
9.6 Successors and Assigns; Participations and Assignments. This
Agreement shall be binding upon and inure to the benefit of each Borrower,
U-Haul International, the Lender and their respective successors and assigns,
except that (a) no Loan Party may assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of the Lender
(and any purported such assignment or transfer by a Loan Party without such
consent of the Lender shall be null and void) and (b) the Lender may not assign
or transfer any of its rights or obligations under this Agreement, except to an
Affiliate of the Lender, without the prior written consent of each Borrower,
which consent of each Borrower shall not be unreasonably withheld or delayed,
provided that no such consent of such Borrower shall be required at any time any
Default or Event of Default is then existing.
9.7 Set-off. In addition to any rights and remedies of the Lender
provided by law, the Lender shall have the right, without prior notice to the
Borrowers, any such notice being expressly waived by the Borrowers to the extent
permitted by applicable law, upon any amount becoming due and payable by the
Borrowers hereunder (whether at the stated maturity, by acceleration or
otherwise) to set-off and appropriate and apply against such amount any and all
deposits (general or special, time or demand, provisional or final), in any
currency, and any other credits, indebtedness or claims, in any currency, in
each case whether direct or indirect, absolute or contingent, matured or
unmatured, at any time held or owing by the Lender or any branch or agency
thereof to or for the credit or the account of the Borrower. The Lender agrees
promptly to notify the Borrowers after any such set-off and application made by
the Lender, provided that the failure to give such notice shall not affect the
validity of such set-off and application.
9.8 Counterparts. This Agreement may be executed by one or more of
the parties to this Agreement on any number of separate counterparts (including
by facsimile transmission of signature pages hereto), and all of said
counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Agreement signed by all the parties
shall be lodged with the Borrowers and the Lender.
-49-
9.9 Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
9.10 Integration. This Agreement and the other Loan Documents
represent the agreement of each Borrower and the Lender with respect to the
subject matter hereof, and there are no promises, undertakings, representations
or warranties by the Lender relative to subject matter hereof not expressly set
forth or referred to herein or in the other Loan Documents.
9.11 GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
9.12 Submission To Jurisdiction; Waivers. Each Borrower hereby
irrevocably and unconditionally:
(a) submits for itself and its property in any legal action or
proceeding relating to this Agreement and the other Loan Documents to which it
is a party, or for recognition and enforcement of any judgment in respect
thereof, to the non-exclusive general jurisdiction of the courts of the State of
New York, the courts of the United States of America for the Southern District
of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in
such courts and waives any objection that it may now or hereafter have to the
venue of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
(c) 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 the Borrower at its
address set forth in Section 9.2 or at such other address of which the Lender
shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to effect
service of process in any other manner permitted by law or shall limit the right
to xxx in any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right
it may have to claim or recover in any legal action or proceeding referred to in
this Section any special, exemplary, punitive or consequential damages.
9.13 Acknowledgements. Each Borrower and U-Haul International hereby
acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents;
(b) the Lender does not have any fiduciary relationship with or duty
to the Borrower or U-Haul International arising out of or in connection with
this Agreement or any of the other Loan Documents, and the relationship between
the Borrower and the other Loan Parties, on one hand, and the Lender, on the
other hand, in connection herewith or therewith is solely that of debtor and
creditor; and
-50-
(c) no joint venture is created hereby or by the other Loan
Documents or otherwise exists by virtue of the transactions contemplated hereby
between the Borrower and the Lender.
9.14 WAIVERS OF JURY TRIAL. EACH BORROWER AND THE LENDER HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
9.15 Confidentiality. The Lender agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a) to its and its affiliates' directors, officers and
employees, including accountants, legal counsel and other advisors (it being
understood that the parties 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) in connection with any suit, action
or proceeding relating to this Agreement, (e) subject to a written agreement
containing provisions substantially the same as those of this Section, or (f)
with the consent of the Borrowers. For the purposes of this Section 9.15,
"Information" means all information received from any Borrower relating to its
business, other than any such information that is available to Borrower on a
non-confidential basis prior to disclosure by such Borrower. Notwithstanding
anything to the contrary contained in this Agreement or any other Loan Document,
all persons may disclose to any and all persons, without limitation of any kind,
the federal income tax treatment or structure of the Loans and other
Obligations, any fact relevant to understanding the federal tax treatment or
structure of the Loans and other Obligations, and all materials of any kind
(including opinions or other tax analyses) relating to such federal tax
treatment or structure.
9.16 Guarantee Provisions; Joint and Several Liability. 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 guarantees the payment of all
Obligations of each other Borrower as set forth below:
(a) Guarantee. Each Borrower hereby jointly and severally,
absolutely, unconditionally and irrevocably guarantees the full and punctual
payment when due, whether at stated maturity, by required prepayment,
declaration, acceleration, demand or otherwise, of all Obligations; provided,
however, that each Borrower shall only be liable under this Agreement for the
maximum amount of such liability that can be hereby incurred without rendering
this Agreement, as it relates to such Borrower, voidable under applicable law
relating to fraudulent conveyance or fraudulent transfer, and not for any
greater amount. This guarantee constitutes a guaranty of payment when due and
not of collection, and each Borrower specifically agrees that it shall not be
necessary or required that the Lender exercise any right, assert any claim or
demand or enforce any remedy whatsoever against any Obligor or any other Person
before or as a condition to the obligations of such Borrower hereunder.
(b) Guarantee Absolute, etc. The guarantee agreed to above shall in
all respects be a continuing, absolute, unconditional and irrevocable guarantee
of payment, and shall remain in full force and effect until the Termination
Date. Each Borrower jointly and severally guarantees that the Obligations shall
be paid strictly in accordance with the terms of each Loan Document under which
such Obligations arise, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Lender with respect thereto. The liability of each Borrower under
this Agreement shall be joint and several, absolute, unconditional and
irrevocable irrespective of (i) any lack of validity, legality or enforceability
of any Loan Document; (ii) the failure of the Lender (A) to assert any claim or
demand or to enforce any right or remedy against any Obligor or
-51-
any other Person (including any other guarantor) under the provisions of any
Loan Document or otherwise, or (B) to exercise any right or remedy against any
other guarantor (including any Obligor) of, or collateral securing, any
Obligations; (iii) any change in the time, manner or place of payment of, or in
any other term of, all or any part of the Obligations, or any other extension,
compromise or renewal of any Obligation; (iv) any reduction, limitation,
impairment or termination of any Obligations for any reason, including any claim
of waiver, release, surrender, alteration or compromise, and shall not be
subject to (and each Borrower hereby waives any right to or claim of) any
defense or setoff, counterclaim, recoupment or termination whatsoever by reason
of the invalidity, illegality, irregularity, compromise, unenforceability of, or
any other event or occurrence affecting, any Obligations or otherwise; (v) any
amendment to, rescission, waiver, or other modification of, or any consent to or
departure from, any of the terms of any Loan Document; (vi) any addition,
exchange, release, surrender or non-perfection of any collateral, or any
amendment to or waiver or release or addition of, or consent to or departure
from, any other guarantee held by the Lender securing any of the Obligations; or
(vii) any other circumstance which might otherwise constitute a defense
available to, or a legal or equitable discharge of, any Obligor, any surety or
any guarantor.
(c) Reinstatement, etc. Each Borrower agrees that its guarantee
shall continue to be effective or be reinstated, as the case may be, if at any
time any payment (in whole or in part) of any of the Obligations is rescinded or
must otherwise be restored by the Lender, upon the insolvency, bankruptcy or
reorganization of any other Borrower, any other Obligor or otherwise, all as
though such payment had not been made.
(d) Waiver, etc. Each Borrower hereby waives promptness, diligence,
notice of acceptance and any other notice with respect to any of the Obligations
and this Agreement and any requirement that the Lender protect, secure, perfect
or insure any Lien, or any property subject thereto, or exhaust any right or
take any action against any other Obligor or any other Person (including any
other guarantor) or entity or any collateral securing the Obligations, as the
case may be.
(e) Postponement of Subrogation, etc. Each Borrower agrees that it
shall not exercise any rights which it may acquire by way of rights of
subrogation under any Loan Document to which it is a party, nor shall any
Borrower seek or be entitled to seek any contribution or reimbursement from any
Obligor, in respect of any payment made hereunder, under any other Loan Document
or otherwise, until following the Termination Date. Any amount paid to any
Borrower on account of any such subrogation rights prior to the Termination Date
shall be held in trust for the benefit of the Lender and shall immediately be
paid and turned over to the Lender in the exact form received by such Borrower
(duly endorsed in favor of the Lender, if required), to be credited and applied
against the Obligations, whether matured or unmatured; provided, however, that
if (i) any Borrower has made payment to the Lender of all or any part of the
Obligations; and (ii) the Termination Date has occurred; then at such Borrower's
request, the Lender shall, at the expense of such Borrower, execute and deliver
to such Borrower appropriate documents (without recourse and without
representation or warranty) necessary to evidence the transfer by subrogation to
such Borrower of an interest in the Obligations resulting from such payment. In
furtherance of the foregoing, at all times prior to the Termination Date, each
Borrower shall refrain from taking any action or commencing any proceeding
against any Obligor (or its successors or assigns, whether in connection with a
bankruptcy proceeding or otherwise) to recover any amounts in the respect of
payments made under any Loan Document to the Lender.
(f) Right of Contribution. Each Borrower hereby agrees that, to the
extent that a Borrower shall have paid more than its proportionate share of any
payment made hereunder or in respect of the Obligations, such Borrower shall be
entitled to seek and receive contribution from and against the other Borrower
hereunder which has not paid its proportionate share of such payment. The
provisions of
-52-
this Section shall in no respect limit the obligations and liabilities of any
Borrower to the Lender, and each Borrower shall remain liable to the Lender for
the full amount guaranteed by it hereunder.
(g) Each Borrower hereby acknowledges and agrees that such Borrower
shall be jointly and severally liable to the Lender for all representations,
warranties, covenants, obligations and indemnities of the Borrowers hereunder.
9.17 Cooperation by Lender.9.18 The Lender agrees that, in the case
that the Borrowers notify the Lender that the Loans are to be paid in full or
refinanced (including by assignment of all Loans for a price not less than all
outstanding Obligations), in a manner not prohibited by this Agreement, the
Lender shall cooperate with the Borrowers to provide to the Borrowers, in
connection with such payment or refinancing or assignment (and subject to the
payment in full of the Obligations and such other terms as the Lender may
reasonably require), to use its reasonable efforts to execute and deliver such
releases, termination statements, mortgage satisfactions and other similar
instruments, prepared by the Borrowers and reasonably acceptable to the Lender,
all at the Borrowers' expense, as the Borrowers may reasonably request in
connection with such repayment or refinancing or assignment.
[Signature Pages Follow]
-53-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their proper and duly authorized officers as
of the day and year first above written.
AMERCO REAL ESTATE COMPANY,
AMERCO REAL ESTATE COMPANY OF TEXAS, INC.,
AMERCO REAL ESTATE COMPANY OF ALABAMA, INC.,
U-HAUL CO. OF FLORIDA, INC.,
U-HAUL INTERNATIONAL, INC.
By: /s/ Xxxx X. Xxxxxx
---------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Treasurer
XXXXXXX XXXXX COMMERCIAL FINANCE CORP., as Lender
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Director
