Exhibit 10.50
PMSR AGREEMENT
This PMSR Agreement (this "Agreement") is made and entered into as of
March 15,2004, by AMERCO, a Nevada corporation ("AMERCO"), Private Mini Storage
Realty, L.P., a Texas limited partnership ("PMSR'), JPMorgan Chase Bank, as
Administrative Agent under the Credit Agreement described below (the
"Administrative Agent"), and the lenders under the Credit Agreement described
below (the "Lenders"). AMERCO, the Administrative Agent and the Lenders are
collectively referred to herein as the "Parties" and individually as a "Party."
RECITALS
WHEREAS, AMERCO is the Support Party under that certain Support Party
Agreement dated as of December 30, 1997 (the "Support Party Agreement"), with
respect to the indebtedness of PMSR under that certain Amended and Restated
Credit Agreement dated as of March 3,2003 (as amended to date, the "Credit
Agreement"), among PMSR, Storage Realty L.L.C., the Lenders and the
Administrative Agent.
WHEREAS, pursuant to that certain Non-Exoneration Letter dated as of March
3, 2003, AMERCO acknowledged its obligations under the Support Party Agreement
to purchase all of the outstanding loans made by the Lenders to PMSR in the
aggregate principal amount of $55.55 million (the "PMSR Support Obligations").
WHEREAS, on June 20,2003, AMERCO filed for relief under Chapter 11 of
Title 11 of the United States Code, 11 U.S.C. Sections 101, et. seq. (the
"Bankruptcy Code"), before the United States Bankruptcy Court for the District
of Nevada (the "Bankruptcy Court") and on August 13, 2003, AMERCO Real Estate
Company ("ARJX") filed for relief under Chapter 11 of the Bankruptcy Code before
the Bankruptcy Court.
WHEREAS, on October 6, 2003, AMERCO and AREC filed a Joint Plan of
Reorganization (the "Plan") with the Bankruptcy Court, which was amended and was
subsequently confirmed by the Bankruptcy Court on February 20, 2004. Capitalized
terms used herein without definition have the meanings ascribed to them in the
Plan.
WHEREAS, under the Plan, the Lenders have an Allowed Class 7 Claim of
$55.55 million plus any unpaid interest or charges owing under the Credit
Agreement and will receive a Pro Rata share of each of the following on the
Effective Date: (i) Cash in an amount to be determined; (ii) New Term Loan B
Notes in a principal amount to be determined; (iii) SAC Holding Senior Notes in
the Face Amount of $200 million; and (iv) New AMERCO Notes in an amount to be
determined (the SAC Holding Senior Notes, the New Term Loan B Notes and the New
AMERCO Notes received by the Lenders are hereinafter referred to as the "New
Debt Securities"); and the sum of the cash and the Face Amount of the New Debt
Securities that the Lenders are to receive under the Plan will equal their
Allowed Class 7 Claim.
WHEREAS, pursuant to the Plan, Reorganized AMERCO and the Lenders are
required to enter into this Agreement on the Effective Date of the Plan.
WHEREAS, the purpose of this Agreement is to prevent the Lenders from
being paid twice (ie., once on the Loans (as defined in the Credit Agreement)
and again on the New Debt
1
Securities).
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the Parties hereby
agree as follows:
1. Recitals. Each of the foregoing Recitals is incorporated hereby as if
fully set forth herein.
2. New Debt Securities to be Issued to Administrative Agent. Each Lender
hereby agrees that all of the New Debt Securities to be issued to the Lenders in
partial satisfaction of the Lenders' Allowed Class 7 Claims shall be issued to
the Administrative Agent on behalf of the Lenders, and the Administrative Agent
agrees to hold such New Debt Securities as agent for and on behalf of the
Lenders in accordance with this Agreement. Subject to Section 4 below, the
Administrative Agent agrees to distribute all payments of principal of, and
interest and other amounts on, such New Debt Securities that the Administrative
Agent then holds to the Lenders on a Pro Rata basis promptly upon receipt.
3. Assignment on Effective Date; Promissory Notes. Each Lender hereby
assigns to AMERCO a portion of its Loans (as defined in the Credit Agreement) in
an aggregate principal amount equal to the Cash received by such Lender on the
Effective Date in partial satisfaction of the principal portion of its Allowed
Class 7 Claim. PMSR and the Administrative Agent hereby consent to such
assignment.
4. Interest Payments. (a) The Administrative Agent shall distribute all
payments of interest on the Loans to the Lenders in accordance with the Credit
Agreement. So long as no default in the payment of interest has occurred and is
continuing under the New Debt Securities, then, except as otherwise provided in
this paragraph, upon the Administrative Agent's receipt of each payment of
interest on any New Debt Securities (the date of such payment, an "NDS Interest
Payment Date"), the Administrative Agent shall within one (1) Business Day
thereafter distribute a portion of such interest to AMERCO in an amount equal to
the product of (i) the interest on the Loans paid to the Lenders during the
Interest Payment Period (as hereafter defined) ending on such NDS Interest
Payment Date and (ii) a fraction, the numerator of which equals the outstanding
aggregate principal amount of the New Debt Securities for which interest was
received by the Administrative Agent on the relevant NDS Interest Payment Date
and the denominator of which equals the outstanding aggregate principal amount
of all New Debt Securities held by the Administrative Agent on such NDS Interest
Payment Date. Any amount of interest on the New Debt Securities not distributed
to AMERCO in accordance with the immediately preceding sentence shall be
distributed to the Lenders on a pro rata basis.
(b) For purposes of this Agreement, an "Interest Payment
Period" is the period commencing on the Effective Date and ending on the
first NDS Interest Payment Date, and each subsequent Interest Payment
Period commences on the day after the preceding NDS Interest Payment Date
and ends on the next succeeding NDS Interest Payment Date.
2
(c) If any payment of interest on the New Debt Securities is
made other than on the date it is due, the Administrative Agent shall
distribute AMERCO's portion of the payment to AMERCO 95 days after the
payment date. If the payor of the interest becomes a debtor in a case
under the Bankruptcy Code within the 95-day period, then the
Administrative Agent shall not distribute any portion until such time as
there is a final resolution of whether any interest payment is avoidable
or recoverable in the bankruptcy case. At the time of such final
resolution, the Administrative Agent shall retain or shall transfer to
AMERCO the interest payment based on the amount, if any, that the
Administrative Agent retains (for distribution to the Lenders) of the
payment.
5. Principal Payments on New Debt Securities. If the issuer of a New Debt
Security pays any principal owing on the New Debt Security to the Administrative
Agent, or redeems such New Debt Security, then, except as otherwise provided in
this paragraph, the Administrative Agent shall transfer an amount of Loans with
a face amount equal to the amount of any principal paid or redeemed on the New
Debt Security to AMERCO on the date that is 95 days after the date of the
principal payment or redemption, together with any interest and principal
payments made on such Loans during such 95 day period, if the issuer of the New
Debt Securities redeemed or on which principal payments were made has not then
become a debtor in a case under the Bankruptcy Code. If the issuer has become a
debtor in a case under the Bankruptcy Code within the 95-day period, then the
Administrative Agent may continue to hold the Loans (together with any interest
and principal payments thereon) that otherwise would have been assigned and
transferred until such time as there is a final resolution of whether any
principal or redemption payment to the Administrative Agent is avoidable or
recoverable in the bankruptcy case. At the time of such final resolution, the
Administrative Agent shall retain the Loans (together with any interest and
principal payments thereon) or shall transfer and assign the Loans (together
with any interest and principal payments thereon) to AMERCO based on the amount,
if any, that the Administrative Agent retains (for distribution to the Lenders)
of the principal or redemption payment. PMSR and the Administrative Agent hereby
consent to any assignment pursuant to this Section 5.
6. Sale of New Debt Securities. If any Lender (a "Selling Lender"),
acting in its sole discretion, decides to sell all or a portion of the New Debt
Securities held on behalf of such Lender by the Administrative Agent to a third
party, such Selling Lender shall notify the Administrative Agent and AMERCO of
such sale and, upon the closing of such sale, (i) the Administrative Agent shall
release such New Debt Securities to the buyer and (ii) such Selling Lender shall
assign to AMERCO a portion of its Loans in an aggregate principal amount equal
to the Face Amount of the New Debt Securities sold by such Selling Lender. PMSR
and the Administrative Agent hereby consent to any such assignment.
7. Sale or Assignment of Loans. If any Lender (an "Assigning Lender"),
acting in its sole discretion, decides to sell or assign all or a portion of its
Loans to a third party, in addition to complying with the assignment provisions
of the Credit Agreement, such Assigning Lender shall (i) require that such third
party agree in writing to become a party to this Agreement and be treated as a
Lender for all purposes with respect to the assigned Loans; and (ii) notify the
Administrative Agent of such sale or assignment and, upon the closing of such
sale or assignment, the Administrative Agent shall hold all (or if only a
portion of the Loans of the Assigning Lender are being sold or assigned, a
corresponding portion) of the New Debt Securities held by the
3
Administrative Agent on behalf of the Assigning Lender as agent for and on
behalf of the buyer or assignee of the Loans, subject to all of the terms and
provision of this Agreement.
8. Repayment of Loans.
(a) The Administrative Agent shall distribute all payments of
principal on the Loans to the Lenders in accordance with the Credit
Agreement and, except as otherwise provided in this paragraph 8, shall, 95
days after the date of payment, transfer New Debt Securities in an
aggregate Face Amount equal to such principal payment to AMERCO. New Debt
Securities so transferred to AMERCO shall be in the following order: (i)
first, New AMERCO Notes; (ii) second, New Term Loan B Notes; (iii) third,
SAC Holding Senior Notes.
(b) If the Loans, together with accrued interest thereon and
any other amounts due to the Administrative Agent and the Lenders under
the Credit Agreement, are repaid in full prior to the payment in full of
the New Debt Securities, then except as otherwise provided in this
paragraph 8, the Administrative Agent shall transfer all New Debt
Securities held by it on behalf of the Lenders to AMERCO 95 days after
the date of repayment.
(c) If PMSR becomes a debtor in a case under the Bankruptcy
Code within 95 days after any payment of principal on the Loans, then the
Administrative Agent may continue to hold the New Debt Securities that
otherwise would have been transferred under this paragraph 8 until such
time as there is a final resolution of whether any payment is avoidable
or recoverable in the bankruptcy case. At the time of such final
resolution, the Administrative Agent shall retain the New Debt Securities
(together with any payment of principal or interest thereon) or transfer
the New Debt Securities (together with any payment of principal or
interest thereon) to AMERCO based on the amount, if any, that the
Administrative Agent retains (for distribution to the Lenders) of the
payment.
9. Subordination. AMERCO hereby covenants and agrees that its rights and
the rights of any of its subsidiaries,whether now existing or hereafter arising,
to receive payment on account of any indebtedness owed to it or any such
subsidiary by PMSR, whether under the Loans transferred to it under this
Agreement or otherwise, or to receive any payment from PMSR from any other
source (other than ordinary expenses relating to the operation of the business
of PMSR, paid in PMSR's ordinary course of business) shall at all times be
Subordinate (as defined in the Credit Agreement) in accordance with the
provisions of Schedule S of the Credit Agreement ("Schedule S") to the full and
prior repayment of the amounts outstanding in favor of the Lenders under the
Credit Agreement. Except as expressly provided in Schedule S or in Section 4 of
this Agreement, neither AMERCO nor any of its subsidiaries shall be entitled to
enforce or receive payment of any sums hereby Subordinated until the amounts
outstanding under the Credit Agreement in favor of the Lenders have been paid
and performed in full and all Commitments terminated, and any such sums received
in violation of this Agreement or Schedule S shall be received by AMERCO or its
subsidiaries, as applicable, in trust for the Administrative Agent and the
Lenders. AMERCO shall cause each subsidiary to Subordinate any indebtedness owed
to the subsidiary by PMSR in accordance with the terms of this Section 9.
Notwithstanding anything in Schedule S to the contrary, AMERCO shall not have
the right to vote on any amendment, waiver
4
or consent with respect to the Credit Agreement or any other Loan Document (as
defined in the Credit Agreement) until the termination of this Agreement. If
AMERCO transfers any of the Loans that it receives under this Agreement to any
other entity, whether or not an AMERCO subsidiary, the subordination provisions
of this paragraph shall continue to apply to the transferred Loans as though
still held by AMERCO.
10. Loans Transferred to AMERCO.
(a) Notwithstanding the transfer of Loans to AMERCO under any
provision of this Agreement, AMERCO shall not be deemed to be a "Lender"
for any purpose under this Agreement. Notwithstanding any other provision
of this Agreement, once the Administrative Agent transfers a Loan to
AMERCO, the Loan shall no longer be treated as a "Loan" for purposes of
this Agreement.
(b) If any Loan assigned, in whole or in part, to AMERCO
hereunder is evidenced by a promissory note, the assigning Lender shall,
promptly upon such assignment, surrender such promissory note to PMSR,
and PMSR shall promptly prepare and execute new promissory notes
evidencing the Loans retained by such assigning Lender and the loans
assigned to AMERCO and deliver them to the assigning Lender and AMERCO,
respectively. If any Loan assigned to AMERCO hereunder is not evidenced
by a promissory note, the assigning Lender shall promptly upon such
assignment notify PMSR of such assignment, and PMSR shall promptly
execute and deliver to AMERCO a new promissory note evidencing the Loan
assigned to AMERCO. PMSR shall make all payments required under the
promissory notes delivered to AMERCO hereunder directly to AMERCO or as
otherwise instructed by AMERCO.
11. Disclosure. The Parties agree that a copy of this Agreement shall be
filed with the Bankruptcy Court.
12. Termination of Agreement. This Agreement shall terminate on the later
to occur of (i) the date that all Loans held by the Lenders on the Effective
Date have been assigned or transferred to AMERCO as provided hereunder and (ii)
the date that all New Debt Securities held by the Administrative Agent on behalf
of the Lenders have been transferred to AMERCO in accordance with Section 8
hereof.
13. Costs and Expenses; Administration Fee.
(a) AMERCO agrees to pay all reasonable out-of-pocket
expenses incurred by the Administrative Agent in connection with the
preparation, execution, delivery and administration of this Agreement or
in connection with any amendments, modifications or waivers of the
provisions hereof or incurred by the Administrative Agent or any Lender in
connection with the enforcement or protection of their rights in
connection with this Agreement, including the reasonable fees, charges and
disbursements of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel for
the Administrative Agent, and, in connection with any such amendment,
modification or waiver or any such enforcement or protection, the fees,
charges and disbursements of any other counsel for the Administrative
Agent or any Lender.
5
(b) In addition to any fees otherwise payable to the
Administrative Agent by PMSR or AMERCO, AMERCO hereby agrees to pay to the
Administrative Agent, for its own account, an administration fee (i) on
the Effective Date in the amount of $25,000, and (ii) each three months
thereafter (each such payment date, a "Fee Payment Date"), in an amount
equal to the greater of (x) $6,250 and (y) $25,000 multiplied by a
fraction equal to (A) the principal amount of New Debt Securities held by
the Administrative Agent on the applicable Fee Payment Date divided by (B)
the principal amount of New Debt Securities held by the Administrative
Agent on the Effective Date (regardless of whether the difference between
the numerator and the denominator is a result of the sale by any PMSR
Lenders of New Debt Securities, the return to AMERCO of New Debt
Securities under this Agreement, or the repayment of the principal of any
New Debt Securities).
14. Representations and Warranties. AMERCO represents and warrants to the
Administrative Agent and each Lender that the following statements are true,
correct and complete as of the date hereof:
(a) Power and Authority. It is duly organized, validly existing,
and in good standing under the laws of the state of its organization, and
has all requisite corporate, partnership or limited liability company
power and authority to enter into this Agreement and to carry out the
transactions contemplated by, and perform its respective obligations
under, this Agreement.
(b) Authorization. The execution and delivery of this Agreement and
the performance of its obligations hereunder have been duly authorized by
all necessary corporate, partnership or limited liability company action
on its part.
(c) No Conflicts. The execution, delivery and performance by it of
this Agreement do not and shall not (i) violate any provision of law,
rule or regulation applicable to it or any of its subsidiaries or its
certificate of incorporation or bylaws or other organizational documents
or those of any of its subsidiaries or (ii) conflict with, result in a
breach of or constitute (with due notice or lapse of time or both) a
default under any material contractual obligation to which it or any of
its subsidiaries is a party.
(d) Governmental Consents. The execution, delivery and performance
by it of this Agreement do not and shall not require any registration or
filing with consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or
regulatory body.
(e) Binding Obligation. This Agreement is the legally valid
and binding obligation of AMERCO, enforceable against it in
accordance with its terms.
(f) Bankruptcy Court Approval. This Agreement has been approved by
the Bankruptcy Court in connection with the confirmation of a plan of
reorganization for AMERCO in its chapter 11 case.
15. Amendments. This Agreement may not be modified, amended or
supplemented without the prior written consent of AMERCO, PMSR, the
Administrative Agent and all of the Lenders.
6
16. Governing Law; Jurisdiction. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York. By its execution
and delivery of this Agreement, each of the Parties hereto hereby irrevocably
and unconditionally agrees for itself that any legal action, suit or proceeding
against it with respect to any matter under or arising out of or in connection
with this Agreement or for recognition or enforcement of any judgment rendered
in any such action, suit or proceeding, may be brought in the United States
District Court for the Southern District of New York. By execution and delivery
of this Agreement, each of the Parties hereto irrevocably accepts and submits
itself to the nonexclusive jurisdiction of such court, generally and
unconditionally, with respect to any such action, suit or proceeding.
17. Headings. The headings of the sections, paragraphs and subsections of
this Agreement are inserted for convenience only and shall not affect the
interpretation hereof.
18. Successors and Assigns. This Agreement is intended to bind and inure
to the benefit of the Parties and their respective successors, assigns, heirs,
executors, administrators and representatives.
19. Prior Negotiations. This Agreement supersedes all prior negotiations
with respect to the subject matter hereof.
20. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same Agreement. Delivery of an executed counterpart of
this Agreement by facsimile shall be equally as effective as delivery of the
original executed counterpart of this Agreement.
21. No Third-Party Beneficiaries. Unless expressly stated herein, this
Agreement shall be solely for the benefit of the Parties hereto and no other
person or entity shall be a third-party beneficiary hereof, other than
successors and assigns of any Party.
22. Notices. (a) All notices hereunder to be served to AMERCO shall be
deemed given if in writing and delivered or sent by telecopy, courier or by
registered or certified mail (return receipt requested) to the following
addresses or telecopier numbers (or at such other addresses or telecopier
numbers as shall be specified by like notice):
AMERCO
c/o U-Haul International, Inc.
0000 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
7
with copy to:
SQUIRE, XXXXXXX & XXXXXXX L.L.P.
00 X. Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxxxxxx X. Xxxxxxx, Esq.
Fax: 000-000-0000
(b) All notices hereunder to be served to PMSR shall be deemed given
if in writing and delivered or sent by telecopy, courier or by registered
or certified mail (return receipt requested) to the following addresses or
telecopier numbers (or at such other addresses or telecopier numbers as
shall be specified by like notice):
Private Mini Storage Realty, L.P.
00000 Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx
Fax: 000-000-00 10
with copy to:
XXXXXX XXXXXXX XXXXXX + XXXXXX
0000 Xxxx Xxx Xxxxxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxx, Esq.
Fax: 000-000-0000
(c) All notices hereunder to be served to the Administrative Agent
or a Lender shall be deemed given if in writing and delivered or sent by
telecopy, courier or by registered or certified mail (return receipt
requested) to the address or telecopier number for such person set forth
above its signature hereto (or at such other addresses or telecopier
numbers as shall be specified by like notice), with a copy to:
SKADDEN, ARPS,SLATE, XXXXXXX & XXXX LLP
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxx, Esq.
Fax : 000-000-0000
23. Effectiveness. This Agreement shall become effective when AMERCO
has received counterparts of this Agreement duly executed and delivered by
AMERCO, PMSR, the Administrative Agent and all of the Lenders.
[Signature page follows]
8
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement
to be executed and delivered by its duly authorized officer as of the date first
above written.
AMERCO
By: /s/ Xxxx X. Xxxxxxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxxxxxx
-----------------------------
Title: Secretary
-----------------------------
[Additional signature pages follow]
9
PRIVATE MINI STORAGE REALTY, L.P.
By: STORAGE REALTY L.L.C., its General
Partner
By: /s/ Xxxx Xxxxxxxx
------------------------------------
Name: Xxxx Xxxxxxxx
-----------------------------
Title: President
-----------------------------
10
JPMORGAN CHASE BANK,
AS ADMINISTRATIVE AGENT
By: /s/ Xxxx XxXxxxxx
------------------------------------
Name: Xxxx XxXxxxxx
-----------------------------
Title: Managing Director
-----------------------------
Address for notices:
000 XXXX XXXXXX, XXXXX 00
XXX XXXX, XX 00000
11
LENDERS: Xxxxx Fargo Bank, N.A.
By: /s/ Xxxx X. Xxxxx
------------------------------------
Name: Xxxx X. Xxxxx
-----------------------------
Title: Senior Vice President
-----------------------------
Address for notices:
12
LENDERS:
By: /s/ Xxxx X. Van Osdal
------------------------------------
Name: Xxxx X. Van Osdal
-----------------------------
Title: Senior Vice President
-----------------------------
Address for notices:
13
LENDERS:
Union Bank of California
By: /s/ Xxxxxx Xxxxx
------------------------------------
Name: Xxxxxx Xxxxx
-----------------------------
Title: Vice President
-----------------------------
Address for notices:
Union Bank of California
S.A.D., Attn: X. Xxxxx
000 Xxxxxxxxxx Xx., 0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Fax: 000-000-0000
00
XXXXXX XX,
XXX XXXX BRANCH
By: /s/ Xxxxxx Xxxxxxxxx
------------------------------------
Name: XXXXXX XXXXXXXXX
-----------------------------
Title: EXECUTIVE DIRECTOR
-----------------------------
By: /s/ Xxxxxxxxx Xxxxxxxxxx
------------------------------------
Name: Xxxxxxxxx Xxxxxxxxxx
-----------------------------
Title: Managing Director
Credit Department
-----------------------------
Address for notices:
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxx III
Associate Director
Credit Department
Phone: 000-000-0000
Fax: 000-000-0000
15
LENDERS:DRESDNER BANK AG NEW YORK
AND GRAND CAYMAN BRANCHES
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------- ------------------------------------
XXXXX X. XXXX Name: XXXXXXX X. XXXXXXX
-----------------------------
VICE PRESIDENT Title: VICE PRESIDENT
-----------------------------
Address for notices: 00 Xxxx Xxxxxx
Xxx Xxxx, XX
00000-0000
16
LENDERS:
KBC BANK N.V.
By: /s/ Xxxxxxx X. Xxxxxx /s/ Xxxxxx Xxxxxxxx
-----------------------------------------------------
Name: XXXXXXX X. XXXXXX XXXXXX XXXXXXXX
----------------------------------------------
Title: VICE PRESIDENT FIRST VICE PRESIDENT
----------------------------------------------
Address for notices:
KBC BANK N.V.
000 XXXX 00xx XXXXXX
XXX XXXX, X.X. 00000
XXXX; XXXXXXX X. XXXXXX
17
LENDERS:
ABN AMRO Bank N.V.
By: /s/ Xxxxx X. Xxxxx
------------------------------------
Name: XXXXX X. XXXXX
-----------------------------
Title: GROUP VICE PRESIDENT
-----------------------------
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------------
Name: XXXXXX X. XXXXXXXX
-----------------------------
Title: GROUP SENIOR VICE PRESIDENT
-----------------------------
Address for notices:
Xxxxx X. Xxxxx
Group Vice President
Financial Restructuring & Recovery Dept.
ABN AMRO Bank N.V.
000 Xxxx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
Tel: (000)-000-0000
Fax: (000)-000-0000
18
LENDERS:
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: XXXXXXX X. XXXXX
-----------------------------
Title: PRINCIPAL
-----------------------------
Bank of America, N.A.
Address for Notices:
19
LENDERS:
COMERICA BANK
By: /s/ R Xxxxxx Xxxxxxxx, Xx
------------------------------------
Name: R XXXXXX XXXXXXXX, XX.
-----------------------------
Title: SENIOR VICE PRESIDENT
-----------------------------
Address for notices:
20
LENDERS:
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: XXXXXXX X. XXXXXX
-----------------------------
Title: DIRECTOR
-----------------------------
Address for notices:
21
PROPERTY MANAGEMENT AGREEMENT
THIS PROPERTY MANAGEMENT AGREEMENT (this "Agreement") is entered into as
of March 31, 2004 among Mercury Partners, LP, a Nevada limited partnership
("Tenant"), Mercury 99, LLC, a Nevada limited liability company ("Parent"), each
of Tenant and Parent having an address at c/o Xxxxx Xxxxxx, 000 X. Xxxxxxx
Xxxxxx, Xxxxx 0000, Xxxx, Xxxxxx 00000, Attn: Xxxxxx Xxxxxxxx, Esq., and U-Haul
Self-storage Management (WPC), Inc. ("Manager"), having an address at 0000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000.
RECITALS
A. Pursuant to a Lease Agreement (the "Lease") dated as of the date
hereof between UH Storage (DE) Limited Partnership, a Delaware limited
partnership ("Lessor") and Tenant, Tenant is a lessee of the real
property and self-storage related improvements thereon located at the 78
street addresses identified on Exhibit A hereto (such property and
improvements covered by such Lease hereinafter each and collectively as
the context may require, the "Property").
B. Tenant intends that the Property be rented on a space-by-space
(i.e. each self-storage unit) retail basis to corporations, partnerships,
individuals and/or other entities for use as self-storage facilities, as
well as customer-owned "RV", boat and trailer long-term parking or
storage.
C. Tenant desires that Manager manage the Property and Manager
desires to act as the property manager for the Property, all in
accordance with the terms and conditions of this Agreement.
D. Parent owns, directly or indirectly, all of the limited partner
interests of Tenant.
NOW, THEREFORE, in consideration of the mutual covenants herein
contained, the parties hereto hereby agree as follows.
1. Employment.
(a) Tenant hereby retains Manager, and Manager agrees to act as
manager of the Property upon the terms and conditions hereinafter set forth.
(b) Tenant acknowledges that Manager, and/or Manager affiliates, is
in the business of managing self-storage facilities and businesses conducted
thereat, including, but not limited to, the sale of packing supplies and rental
of trucks and equipment, both for its own account and for the account of others.
It is hereby expressly agreed that notwithstanding this Agreement, Manager and
such affiliates may continue to engage in such activities, may manage facilities
other than those presently managed by Manager and its affiliates (whether or not
such other facilities may be in direct or indirect competition with Tenant) and
may in the future engage in other business which may compete directly or
indirectly with activities of Tenant.
(c) In the performance of its duties under this Agreement, Manager
shall occupy the position of an independent contractor with respect to Tenant.
Nothing contained
herein shall be construed as making the parties hereto (or any of them) partners
or joint venturors, nor construed as making Manager an employee of Tenant.
2. Duties and Authority of Manager.
Subject to the terms and conditions of this Agreement:
(a) GENERAL DUTIES AND AUTHORITY. Manager shall have the sole and
exclusive duty and authority to fully manage the Property and supervise and
direct the business and affairs associated or related to the daily operation
thereof, to collect on behalf of Tenant all revenues related to the Property, to
pay on behalf of Tenant all expenses of the Property (including payment of all
rent and additional rent to Lessor) and to execute on behalf of Tenant such
documents and instruments as, in the sole judgment of Manager, are reasonably
necessary or advisable under the circumstances in order to fulfill Manager's
duties hereunder. Such duties and authority shall include, without limitation,
those set forth below.
(b) RENTING OF THE PROPERTY. Manager shall establish policies and
procedures for the marketing activities for the Property, and shall advertise
the Property through such media as Manager deems advisable, including, without
limitation, advertising with the Yellow Pages. Manager's marketing activities
for the Property shall be consistent with the scope and quality implemented by
Manager and its affiliates at any other properties managed by Manager or its
affiliates. Manager shall have the sole discretion, which discretion shall be
exercised in good faith, to establish the terms and conditions of occupancy by
the tenants of the Property, and Manager is hereby authorized to enter into
rental agreements on behalf and for the account of Tenant with such tenants and
to collect rent from such tenants on behalf and for the account of Tenant.
Manager may jointly advertise the Property with other properties owned or
managed by Manager or its Affiliates, and in that event, Manager shall
reasonably allocate the cost of such advertising among such properties.
(c) REPAIR, MAINTENANCE AND IMPROVEMENTS. Manager shall make,
execute, supervise and have control over the making and executing of all
decisions concerning the acquisition of furniture, fixtures and supplies for the
Property, and may purchase, lease or otherwise acquire the same on behalf of
Tenant. Manager shall make and execute, or supervise and have control over the
making and executing of all decisions concerning the maintenance, repair, and
landscaping of the Property, provided, however, that such maintenance, repair
and landscaping shall be consistent with the maintenance, repair and landscaping
implemented by Manager and its affiliates at any other properties managed by
Manager or its affiliates. Manager shall, on behalf of Tenant, negotiate and
contract for and supervise the installation of all capital improvements related
to the Property; provided, however, that Manager agrees to secure the prior
written approval of Tenant on all such expenditures in excess of the Threshold
Amount (as that term is defined in the Lease) for any one item, except monthly
or recurring operating charges and/or emergency repairs if in the opinion of
Manager such emergency-related expenditures are necessary to protect the
Property from damage or to maintain services to the tenants or self-storage
licensees as called for in their respective leases or self-storage agreements.
(d) PERSONNEL. Manager shall select all vendors, suppliers,
contractors, subcontractors and employees with respect to the Property and shall
hire, discharge and supervise all labor and employees required for the operation
and maintenance of the Property.
2
Any employees so hired shall be employees of Manager, and shall be carried on
the payroll of Manager. Employees may include, but need not be limited to,
on-site resident managers, on-site assistant managers, and relief managers
located, rendering services, or performing activities on the Property in
connection with its operation and management. The cost of employing such persons
shall not exceed prevailing rates for comparable persons performing the same or
similar services with respect to real estate similar to the Property in the
general vicinity of each respective Property. Manager shall be responsible for
all legal and insurance requirements relating to its employees.
(e) SERVICE AGREEMENTS. Manager shall negotiate and execute on
behalf of Tenant such agreements which Manager deems necessary or advisable for
the furnishing of utilities, services, concessions and supplies, for the
maintenance, repair and operation of the Property and such other agreements
which may benefit the Property or be incidental to the matters for which Manager
is responsible hereunder.
(f) OTHER DECISIONS. Manager shall make the decisions in connection
with the day-to-day operations of the Property.
(g) REGULATIONS AND PERMITS. Manager shall comply in all respects
with any statute, ordinance, law, rule, regulation or order of any governmental
or regulatory body, having jurisdiction over the Property (collectively,
"Laws"), respecting the use of the Property or the maintenance or operation
thereof, the non-compliance with which could reasonably be expected to have a
material adverse effect on Tenant or any Property. Manager shall apply for and
obtain and maintain, on behalf of Tenant, all licenses and permits required or
advisable (in the reasonable judgment of Manager) in connection with the
management and operation of the Property. Notwithstanding the foregoing, Manager
shall be permitted to contest any Applicable Laws to the extent and pursuant to
the same conditions that Tenant is permitted to contest any Laws under the
Lease.
(h) RECORDS AND REPORTS OF DISBURSEMENTS AND COLLECTIONS. Manager
shall establish, supervise, direct and maintain the operation of a system of
record keeping and bookkeeping with respect to all receipts and disbursements in
connection with the management and operation of the Property. The books, records
and accounts shall be maintained at the Manager's office or at Tenant's office,
or at such other location as Manager and Tenant shall determine, and shall be
available and open to examination and audit quarterly by Tenant, its
representatives, and, subject to the terms of the Lease, any mortgagee of the
Property, and such mortgagee's representative. On or before sixty (60) days
after the close of each quarter, Manager shall cause to be prepared and
delivered to Tenant a monthly statement on a per-Property basis, of receipts,
expenses and charges, together with a statement, on a per-Property basis, of the
disbursements made by Manager during such period on Tenant's behalf.
(i) COLLECTION. Manager shall be responsible for the billing and
collection of all accounts receivable and for payment of all accounts payable
with respect to the Property and shall be responsible for establishing policies
and procedures to minimize the amount of bad debts.
3
(j) LEGAL ACTIONS. Manager shall cause to be instituted, on behalf
and in its name or in the name of Tenant as appropriate, any and all legal
actions or proceedings Manager deems necessary or advisable to collect charges,
rent or other income due to Tenant with respect to the Property and to oust or
dispossess tenants or other persons unlawfully in possession under any lease,
license, concession agreement or otherwise, and to collect damages for breach
thereof or default thereunder by such tenant, licensee, concessionaire or
occupant.
(k) INSURANCE. Manager shall obtain and maintain (or cause to be
obtained and maintained) in full force and effect the insurance with respect to
the Property and the operation of Tenant's and Manager's business operations
thereat, and Manager's employees, as required by Paragraph 16 of the Lease and
shall otherwise comply with the terms and provisions of Paragraph 16 of the
Lease.
(l) TAXES. During the term of this Agreement, Manager shall pay on
behalf of Tenant, prior to delinquency, all real estate taxes, personal property
taxes, and all other taxes assessed to, or levied upon, the Property. If
required by the holder of any note secured by the Property, Manager will set
aside, from Tenant's funds, a reserve from each month's rent and other income
collected, in an amount required by said holder for purposes of payment of real
property taxes.
(m) LIMITATIONS ON MANAGER AUTHORITY. Notwithstanding anything to
the contrary set forth in this Section 2, Manager shall not, without obtaining
the prior written consent of Tenant, (i) rent storage space in the Property by
written lease or agreement for a stated term in excess of one year unless such
lease or agreement is terminable by the giving of not more than thirty (30) days
written notice, (ii) alter the building or other structures of the Property in
violation of the Lease; (iii) make any other agreements which exceed a term of
one year and are not terminable on thirty day's notice at the will of Tenant,
without penalty, payment or surcharge; (iv) act in violation of any Law, or (v)
violate any term or condition of the Lease.
(n) SHARED EXPENSES. Tenant acknowledges that certain economies may
be achieved with respect to certain expenses to be incurred by Manager on behalf
of Tenant hereunder if materials, supplies, insurance or services are purchased
by Manager in quantity for use not only in connection with Tenant's business at
the Property but in connection with Moving Tenant's business at the property and
in connection with other properties owned or managed by Manager or its
affiliates. Manager shall have the right to purchase such materials, supplies,
insurance and/or services in its own name and charge Tenant a pro rata allocable
share of the cost of the foregoing; provided, however, that the pro rata cost of
such purchase to Tenant shall not result in expenses that are either
inconsistent with the expenses of other "U-Haul branded" locations in the
general vicinity of the applicable Property or greater than would otherwise be
incurred at competitive prices and terms available in the area where the
Property is located; and provided further, Manager shall give Tenant access to
records (at no cost to Tenant) so Tenant may review any such expenses incurred.
(o) DEPOSIT OF GROSS REVENUES. All Gross Revenue (as defined in
Section 4 hereof) shall be deposited into a lockbox bank account (the "Lockbox
Account"), controlled by Lessor and/or Lessor's mortgage lender, within three
(3) days of receipt by Manager. To the extent that the Gross Revenue is
deposited into a collection account maintained by Manager (or
4
its parent company) for the benefit of multiple property owners or lessees
(which deposits shall be made within two (2) days of receipt by Manager),
Manager (or its parent company) shall reconcile such account daily and maintain
such records as shall clearly identify each day the Gross Revenue derived from
the Property and shall sweep the Gross Revenue derived from the Property into
the Lockbox Account on a daily basis. Gross Revenue shall be applied in the
following order: (i) first, to Rent (as that term is defined in the Lease) due
under the Lease; (ii) second, to any other sums due Lessor under the Lease,
including any reserves; and (iii) third to the reimbursement of expenses as
required under Section 4 of this Agreement. Thereafter, any remaining Gross
Revenue shall be owned by, and released from the Lockbox Account and remitted
to, Tenant; and Tenant shall have the right to distribute such funds to Parent.
Parent shall pay the management fees as required under Section 4 of this
Agreement. Manager shall assure that the foregoing deposits, reconciliations and
applications comply with the cash management requirements of the Lessor under
the Lease or its mortgage lender under any Cash Management Agreement or similar
instrument (a "CMA").
(p) OBLIGATIONS UNDER LEASE AND OTHER MATERIAL CONTRACTS. Manager
shall take such actions as are necessary or appropriate under the circumstances
to ensure that Tenant is in compliance with the terms of the Lease (including
the Loan Documents referred to therein), the Occupancy Cooperation Agreement
with Moving Tenant (defined below), the CMA, and any other material agreement
relating to the Property to which Tenant is a party. Nothing herein contained
shall be deemed to obligate Manager to fund from its own resources rental
payments owed by Tenant under the Lease or otherwise be deemed to make Manager a
direct obligor under the Lease.
(q) OBLIGATIONS NOTWITHSTANDING OTHER TENANCY AT THE PROPERTY.
Manager shall perform all of its obligations under this Agreement in a
professional manner consistent with the standards it employs at all of its
managed locations notwithstanding the existence of another tenant ("Moving
Tenant") in possession of a portion of the Property, and notwithstanding the
fact that Moving Tenant is an affiliate of Manager or that Manager itself is a
sub-tenant or sub-occupant of Moving Tenant.
3. Duties of Tenant.
Tenant shall cooperate with Manager in the performance of Manager's
duties under this Agreement and to that end, upon the request of Manager, to
provide, at such rental charges, if any, as are deemed appropriate, reasonable
office space for Manager employees on the premises of the Property (to the
extent available) and to give Manager access to all files, books and records of
Tenant relevant to the Property. Tenant shall not unreasonably withhold or
delay any consent or authorization to Manager required or appropriate under
this Agreement.
4. Compensation of Manager.
(a) REIMBURSEMENT OF EXPENSES. Manager shall be entitled to
reimbursement, on a quarterly basis, for all out-of-pocket reasonable and
customary expenses actually incurred by Manager in the discharge of its duties
hereunder. Such reimbursement shall be the obligation of Tenant, whether or not
Gross Revenues are sufficient to pay such amounts. If and to the extent Gross
Revenue for any fiscal quarter shall be in excess of the amounts necessary to
pay current expenses (after payment of all rent and additional rent obligations
to
5
Lessor), at Tenant's option the Manager shall hold all or a portion of such
excess in an interest-bearing escrow account to be applied at Tenant's
direction to cover future expenses. Any interest earned thereon shall be added
to and treated as part of such account. Manager shall not seek or be entitled to
reimbursement for any item properly chargeable to Moving Tenant or as to which
any other affiliate of Manager is properly responsible, and, as between Manager
and Tenant, Manager shall solely be responsible for all such items.
(b) MANAGEMENT FEE. Parent shall pay to Manager as the full amount
due for the services herein provided a quarterly fee (the "Management Fee")
which shall be four percent (4%) of the Property's trailing twelve month Gross
Revenue divided by four (4) ("Base Fee"), plus an annual incentive fee (the
"Incentive Fee") based upon the performance of the Property as set forth on
Exhibit B hereto. For purposes of this Agreement, the term "Gross Revenue" shall
mean all receipts (excluding security deposits unless and until Tenant
recognizes the same as income) of Manager or Tenant (whether or not received by
Manager on behalf or for the account of Tenant) arising from the operation of
Tenant's business at the Property, including without limitation, rental payments
of self-storage customers at the Property, vending machine or concessionaire
revenues, maintenance charges, if any, paid by the tenants of the Property in
addition to basic rent and parking fees, if any. No revenue arising out of the
Moving Tenant's business shall be included as part of Gross Revenue. Gross
Revenue shall be determined on a cash basis. Subject to the terms of Sections
2(o), the Management Fee shall be paid promptly, in arrears, within thirty (30)
days of Parent's receipt of the invoice therefor, which invoice shall be sent
from Manager to Parent following the end of each calendar quarter. Such invoice
shall be itemized and shall include reasonable detail.
Except as provided in this Section 4, it is further understood and
agreed that Manager shall not be entitled to additional compensation of any kind
in connection with the performance by it of its duties under this Agreement.
(c) INSPECTION OF BOOKS AND RECORDS. Parent and Tenant each shall
have the right, upon prior reasonable notice to Manager, to inspect Manager's
books and records with respect to the Property, to assure that proper fees and
charges are assessed hereunder. Manager shall cooperate with any such
inspection. Parent shall bear the cost of any such inspection; provided,
however, that if it is ascertained that Manager has overcharged Tenant or Parent
by more than 5% in any given quarter, the cost of such inspection shall be borne
by Manager. Manager shall promptly reimburse Tenant or Parent, as the case may
be, for any overpayment.
5. Use of Trademarks, Service Marks and Related Items.
Tenant acknowledges the significant value of the "U-Haul" name in
the operations of Tenant's property and it is therefore understood and agreed
that the name, trademark and service xxxx "U-Haul", and related marks, slogans,
caricatures, designs and other trade or service items (the "Manager Trade
Marks") shall be utilized for the non-exclusive benefit of Tenant in the rental
and operation of the Property, and in comparable operations elsewhere. It is
further understood and agreed that this name and all such marks, slogans,
caricatures, designs and other trade or service items shall remain and be at all
times the property of Manager and its affiliates, and that, except as expressly
provided in this Agreement, Tenant shall have no right whatsoever therein.
Tenant agrees that during the term of this agreement the sign faces at the
property will have the name "U-Haul." The U-Haul sign faces will be paid for by
Tenant.
6
Unless Tenant has elected to continue to use the Manager Trade Marks as provided
in Section 6 of this Agreement, upon termination of this agreement at any time
for any reason, all such use by and for the benefit of Tenant of any such name,
xxxx, slogan, caricature, design or other trade or service item in connection
with the Property shall be terminated and any signs bearing any of the foregoing
shall be removed from view and no longer used by Tenant. In addition, upon
termination of this Agreement at any time for any reason, Tenant shall not enter
into any new leases of Property using the Manager lease form or use other forms
prepared by Manager. It is understood and agreed that Manager will use and shall
be unrestricted in its use of such name, xxxx, slogan, caricature, design or
other trade or service item in the management and operation of other storage
facilities both during and after the expiration or termination of the term of
this Agreement.
6. Default; Termination.
(a) Any material failure by Manager, Tenant or Parent (a "Defaulting
Party") to perform their respective duties or obligations hereunder (other than
a default by Tenant or Parent under Section 4 of this Agreement), which material
failure is not cured within thirty (30) calendar days after receipt of written
notice of such failure from the non-defaulting party, shall constitute an Event
of Default hereunder; provided, however, the foregoing shall not constitute an
Event of Default hereunder in the event the Defaulting Party commences cure of
such material failure within such thirty (30) day period and diligently
prosecutes the cure of such material failure thereafter but in no event shall
such extended cure period exceed ninety (90) days from the date of receipt by
the non-defaulting party of written notice of such material default; provided
further, however, that in the event such material failure constitutes a default
under the terms of the Lease and the cure period for such matter under the Lease
is shorter than the cure period specified herein, the cure period specified
herein shall automatically shorten such that it shall match the cure period for
such matter as specified under the Lease. In addition, following notice to
Manager of the existence of any such material failure by Manager, Tenant and
Parent shall each have the right to cure any such material failure by Manager,
and any sums so expended in curing shall be owed by Manager to such curing party
and may be offset against any sums owed to Manager under this Agreement.
(b) Any material failure by Tenant or Parent to perform their
respective duties or obligations under Section 4, which material failure is not
cured within ten (10) calendar days after receipt of written notice of such
failure from Manager, shall constitute an Event of Default hereunder.
(c) Tenant shall have the right to terminate this Agreement, with or
without cause, by giving not less than thirty (30) days' written notice to
Manager pursuant to Section 15 hereof. Manager shall have the right to terminate
this Agreement, with or without cause, by giving not less than ninety (90) days'
written notice to Tenant pursuant to Section 15 hereof.
(d) Upon termination of this Agreement, (x) Manager shall promptly
return to Tenant all monies, books, records and other materials held by Manager
for or on behalf of Tenant and shall otherwise cooperate with Tenant to promote
and ensure a smooth transition to the new manager and (y) Manager shall be
entitled to receive its Management Fee and reimbursement of expenses through the
effective date of such termination, including the
7
reimbursement of any prepaid expenses for periods beyond the date of termination
(such as Yellow Pages advertising).
7. Indemnification.
Manager hereby agrees to indemnify, defend and hold Tenant, all
persons and companies affiliated with Tenant, and all officers, shareholders,
directors, employees and agents of Tenant and of any affiliated companies or
persons (collectively, the "Indemnified Persons") harmless from any and all
costs, expenses, attorneys' fees, suits, liabilities, judgments, damages, and
claims in connection with the management of the Property and operations thereon
(including the loss of use thereof following any damage, injury or destruction),
arising from any cause or matter whatsoever, including, without limitation, any
environmental condition or matter, except to the extent attributable to the
willful misconduct or gross negligence on the part of the Indemnified Persons.
8. Assignment; Delegation by Manager of Rights and Duties Hereunder.
Manager shall not assign this Agreement to any party without the
consent of Tenant; provided however, Manager shall have the right (the
"Permitted Delegation"), upon notice to Tenant, to delegate its duties and right
to payment hereunder to the various U-Haul International, Inc. subsidiary
marketing companies in the states in which the Property is located. Irrespective
of any assignment or such delegation, Manager shall not be released from its
liabilities hereunder unless Tenant shall expressly agree thereto in writing.
9. Intentionally Omitted.
10. Standard for Property Manager's Responsibility.
Manager agrees that it will perform its obligations hereunder
according to industry standards, in good faith, and in a commercially reasonable
manner.
11. Estoppel Certificate.
Each of Tenant and Manager agree to execute and deliver to one
another, from time to time, within ten (10) business days of the requesting
party's written request, a statement in writing certifying, to the extent true,
that this Agreement is in full force and effect, and acknowledging that there
are not, to such parties knowledge, any uncured defaults or specifying such
defaults if they are claimed and any such other matters as may be reasonably
requested by such requesting party.
12. Term; Scope.
Subject to the provisions hereof, this Agreement shall have an
initial term (such term, as extended or renewed in accordance with the
provisions hereof, being called the "Term") commencing on the date hereof (the
"Commencement Date") and ending on the last day of the two hundred fortieth
(240th) calendar month next following the date hereof (the "Expiration Date"),
provided, however, that in the event that the term of the Lease is extended
beyond the Expiration Date, the Term of this Agreement shall automatically be
extended until the date that the term of the Lease expires; and provided
further, the Term shall expire with respect to any individual Property as to
which the Lease has terminated in accordance with the terms of the
8
Lease. Additionally, in the event additional property becomes subject to the
Lease in accordance with the terms of the Lease, such additional property shall
become subject to this Agreement, and the parties shall execute such addenda to
this Agreement as are necessary to so reflect.
13. Headings.
The headings contained herein are for convenience of reference only
and are not intended to define, limit or describe the scope or intent of any
provision of this Agreement.
14. Governing Law.
The validity of this Agreement, the construction of its terms and
the interpretation of the rights and duties of the parties shall be governed by
the internal laws of the State of Arizona.
15. Notices.
Any notice required or permitted herein shall be in writing and
shall be personally delivered or mailed first class postage prepaid or delivered
by an overnight delivery service to the respective addresses of the parties set
forth above on the first page of this Agreement, or to such other address as any
party may give to the other in writing. Any notice required by this Agreement
will be deemed to have been given when personally served or one day after
delivery to an overnight delivery service or five days after deposit in the
first class mail. Any notice to Tenant or Parent shall be to the attention of
Finance Director, and a copy thereof shall simultaneously be delivered to Torys
LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Xxxx X. Xxxxx, Esq. Any
notice to Manager shall be to the attention of President and a copy thereof
shall simultaneously be delivered to U-Haul Legal Dept, 0000 Xxxxx Xxxxxxx
Xxxxxx, Xxxxxxx, XX 00000, Attn: Assoc. General Counsel.
16. Severability.
Should any term or provision hereof be deemed invalid, void or
unenforceable either in its entirety or in a particular application, the
remainder of this Agreement shall nonetheless remain in full force and effect
and, if the subject term or provision is deemed to be invalid, void or
unenforceable only with respect to a particular application, such term or
provision shall remain in full force and effect with respect to all other
applications.
17. Successors.
This Agreement shall be binding upon and inure to the benefit of the
respective parties hereto and their permitted assigns, delegees and successors
in interest.
18. Attorneys' Fees.
If it shall become necessary for any party hereto to engage
attorneys to institute legal action for the purpose of enforcing their
respective rights hereunder or for the purpose of defending legal action brought
by the other party hereto, the party or parties prevailing in such litigation
shall be entitled to receive all costs, expenses and fees (including reasonable
attorneys' fees) incurred by it in such litigation (including appeals).
9
19. Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
10
IN WITNESS WHEREOF, the parties hereto execute this Agreement as of the
date first above written.
"Tenant"
MERCURY PARTNERS, LP, a Nevada
limited partnership
By: MERCURY GP, INC.,
its general partner
By: /s/ Xxxx X. Xxxxx
----------------------------------
Name:
Title:
MERCURY 99, LLC,
a Nevada limited liability company
By: Xxxx X. Xxxxx,
as manager
By: /s/ Xxxx X. Xxxxx
----------------------------------
Xxxx X. Xxxxx
Manager
U-HAUL SELF-STORAGE MANAGEMENT
(WPC), INC., a Nevada corporation
By: /s/ Xxxx X. Xxxxxxxxxxx
----------------------------------
Name: Xxxx X. Xxxxxxxxxxx
Title: Secretary
11
Exhibit A
List of Properties
Related
Premises #
1. U-HAUL CENTER GOVERNMENT ST.
0000 Xxxxxxxxxx Xxxxxxxxx, Xxxxxx, XX
2. U-HAUL STORAGE OXFORD
000 Xxxxxx Xxxxx Xxxx, Xxxxxx, XX
3. U-HAUL STORAGE FOUNTAIN HILLS
0000 Xxxxxxxxxx Xxxxx, Xxxxxxxx Xxxxx, XX
4. U-HAUL CENTER 87TH & XXXX
0000 Xxxx Xxxx Xxxx, Xxxxxx, XX
5. U-HAUL STORAGE S. 40TH ST.
0000 Xxxxx 00xx Xxxxxx, Xxxxxxx, XX
6. U-HAUL CENTER CAVE CREEK
00000 Xxxxx Xxxx Xxxxx Xxxx, Xxxxxxx Xxxx, XX
7. U-HAUL CENTER ANTHEM RV
00000 X. Xxxxxx Xxx, Xxxxxxx Xxxx, XX
8. U-HAUL CENTER ANTHEM WAY
00000 X. 00xx Xxxxx, Xxxxxx, XX
9. U-HAUL CENTER I-17 & DEER VLY
00000 X. 00xx Xxxxxx, Xxxxxxx Xxxx, XX
10. U-HAUL CENTER PRESCOTT
0000 Xxxxxxx 00, Xxxxxxxx, XX
11. XXXX ROAD AT GRAND AVE MOVING CENTER
00000 Xxxx Xxxx Xxxx, Xxxxxxxx, XX
12. U-HAUL CENTER XXXXXXX ROAD
00000 Xxxx Xxxx Xxxxx, Xxxxxx Xxxxx, XX
13. X-XXXX XXX XXXXXXXX & X-00
00000 Xxxx 40th Avenue, Denver North, CO
14. U-HAUL HIGHLANDS RANCH
0000 Xxxx Xxxxxx Xxxx Xxxx, Xxxxxxxxx, XX
15. U-HAUL STORAGE COLONIAL BLVD
0000 Xxxxxx Xxxxxx, Xxxx Xxxxx, XX
16. U-HAUL CENTER OF MANDARIN
00000 Xxx Xxxx Xxxx., Xxxxxxxxxxxx, XX
17. U-HAUL STORAGE KEY LARGO
000000 Xxxxxxxx Xxxxxxx, Xxx Xxxxx, XX
18. U-HAUL CENTER OCOEE
00000 Xxxx Xxxxxxxx Xxxxx, Xxxxx, XX
19. U-HAUL CENTER ORANGE CITY
0000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxx Xxxx,
XX
20. U-HAUL CENTER XXXXXXX XX
000 Xxxxx Xxxxxxx Xxxx, Xxxxxxx, XX
21. U-HAUL STORAGE HUNTER CREEK
00000 Xxxxx Xxxxxx Xxxxxxx Xxxxx,
Xxxxxxx, XX
22. U-HAUL CENTER HUNTERS CREEK
00000 X. Xxxxxx Xxxxxxx Xxxxx, Xxxxxxx,
XX
23. U-HAUL STORAGE ORANGE BLOSSOM TRAIL
0000 X. Xxxxxx Xxxxxxx Xxxxx, Xxxxxxx, XX
12
Related
Premises #
24. U-HAUL CENTER XXXX XXXX
0000 Xxxxx Xxxxxxx Xxxxx, Xxxxxxx, XX
25. U-HAUL CENTER XXXXX BLVD
0000 X. Xxxxx Xxxxxxxxx, Xxxxx, XX
26. U-HAUL CTR OF SEMORAN BLVD
0000 Xxxxxxx Xxxxxxxxx, Xxxxxx Xxxx,
XX
27. U-HAUL CENTER OF CONYER
0000 Xxxxxxx Xxxxx, Xxxxxxx, XX
28. U-HAUL CENTER KENNESAW
0000 Xxxx Xxxxxxx, Xxxxxxxx, XX
29. U-HAUL CENTER OF PLEASANT HILL
0000 Xxxxxxxx Xxxx Xxxx,
Xxxxxxxxxxxxx, XX
30. U-HAUL STORAGE HIGHWAY 85
0000 X.X. Xxxxxxx 00, Xxxxxxxxx, XX
31. U-HAUL CENTER S XXXX & I285
0000 X. Xxxx Xxxxx, Xxxxxx, XX
32. X-XXXX XXXXXX XX XXXXXXX 000
0000 Xxxxxx Xxxxxxx Xxxxx,
Xxxxxxxxxx, XX
33. U-HAUL CENTER OF ALSIP
00000 Xxxxx Xxxxxx Xxxxxx, Xxxxx, XX
34. U-HAUL CENTER OF FOX VALLEY
000 X. Xxxxx 00, Xxxxxx, XX
35. U-HAUL CENTER OF CRYSTAL LAKE
0000 Xxxx Xxxxxxxxx Xxxxxxx Xxxxxxx
Xxxx, XX
36. U-HAUL CENTER OF NAPERVILLE
00000 X. Xxxxx 00, Xxxxxxxxxx, XX
37. U-HAUL CENTER MERRILLVILLE
0000 Xxxx 00xx Xxxxxx, Xxxxxxxxxxxx,
XX
38. U-HAUL CENTER OF LENEXA
0000 Xxxxxxxx Xxxxx; Xxxxxx, XX
39. U-HAUL STORAGE XXXXXXXXX
0000 Xxxxxxxxx Xxxxxxxxx, Xxxxxxx
Xxxx, XX
40. U-HAUL STORAGE XXXXXXXXX PARK
499 Xxxxxxxxxx Street, Chicopee, MA
41. U-HAUL CENTER STOUGHTON
000 Xxxxxxxxxx Xxxxxx, Xxxxxxxxx, XX
42. U-HAUL CENTER OF CENTRAL AVENUE
0000 Xxxxxxx Xxxxxx, Xxxxxxx Xxxxxxx, XX
43. U-HAUL CTR OF APPLE VALLEY
0000 000xx Xxxxxx X, Xxxxx Xxxxxx, XX
44. U-HAUL CENTER X'XXXXXX
0000 Xxxxxxx X, X'Xxxxxx, XX
45. U-HAUL CENTER ST XXXXXX
0000 Xxxxx Xxxxxxx Xxxx, Xx. Xxxxxx, XX
46. U-HAUL STORAGE HATTIESBURG
0000 Xxxx 0xx Xxxxxx, Xxxxxxxxxxx, XX
47. U-HAUL CENTER GASTONIA
0000 X. Xxxxxxxx Xxxx., Xxxxxxxx, XX
48. U-HAUL STORAGE XXXXXX XX.
0000 X. Xxxxxxxx Xxxx., Xxxxxxxxxx, XX
13
Related
Premises #
49. U-HAUL STORAGE RIO RANCHO
0000 Xxx Xxxxxx Xxxx., Xxx Xxxxxx, XX
50. U-HAUL HENDERSON
0000 Xxxxxxxxx Xxxxx, Xxxxxxxxx, XX
51. U-HAUL CENTER LAW VEGAS BLVD.
0000 X. Xxx Xxxx Xxxx., Xxx Xxxxx, XX
52. U-HAUL CENTER XXXXXX BLVD
000 Xxxxx Xxxxxx Xxxxxxxxx, Xxx Xxxxx, XX
53. U-HAUL STORAGE RAINBOW
0000 Xxxxx Xxxxxxx Xxxx., Xxx Xxxxx, XX
54. U-HAUL CENTER XXXX XXXXX RD
000 Xxxx Xxxxx Xxxx, Xxxxx Xxx Xxxxx, XX
55. U-HAUL CENTER XXXXXXXX & 138TH ST.
000 Xxxx 000xx Xxxxxx, Xxxxx, XX
56. U-HAUL STORAGE NORTHERN LIGHTS
0000 Xxxxxxxxx Xxxxxx, Xxxxxxxx, XX
57. U-HAUL STORAGE STILLWATER
0000 X. 0xx Xxxxxx, Xxxxxxxxxx, XX
58. U-HAUL CTR OF COOL SPRINGS
0000 Xxxxxxx Xxxx, Xxxxxxxxx, XX
59. U-HAUL CENTER XXXXXXX STREET
0000 X. Xxxxxxx Xxxxxx, Xxxxxxxxx, XX
60. U-HAUL CENTER XXXXXXXXX XXXX
0000 Xxxxx XX-00 Xxxxxxxxxx, Xxxxxx, XX
61. U-HAUL STG XXXXXXXX/JUPITER
00000 Xxxxxx Xxxx, Xxxxxx, XX
62. U-HAUL STORAGE DE XXXX
0000 Xxxxx Xxxxxxx, Xx Xxxx, XX
63. U-HAUL CENTER & STORAGE OF MONTANA
0000 Xxxxxxx Xxxxxx, Xx Xxxx, XX
64. U-HAUL CENTER XXXX XXXXX
0000 Xxxx Xxxx 000, Xxxx Xxxxx, XX
65. U-HAUL CENTER GRAPEVINE
0000 Xxxxxxx X. Xxxx Xxxxxx,
Xxxxxxxxx, XX
66. U-HAUL CENTER 290
00000 Xxxxxxxxx Xxxxxxx, Xxxxxxx, XX
67. U-HAUL CENTER HIGHWAY 6 SOUTH
0000 Xxxxxxx 0 Xxxxx, Xxxxxxx, XX
68. U-HAUL CENTER KATY
00000 Xxxx Xxxxxxx, Xxxxxxx, XX
69. U-HAUL CTR CEN-TEX
0000 X. Xxxxxxx Xxxxx Xxxxxxxxxx,
Xxxxxxx, XX
70. U-HAUL CTR OF LEAGUE CITY
000 Xxxx Xxxxxxx Xxxxx, Xxxxxx Xxxx, XX
71. U-HAUL CENTER LEWISVILLE
000 X. Xxxxxxxx Xxxxxxx, Xxxxxxxxxx, XX
72. U-HAUL CENTER WEST MCKINNEY
00000 X. Xxxxxxxxxx Xxxxx, XxXxxxxx, XX
73. U-HAUL CENTER TOLLWAY
0000 X. Xxxxxx Xxxxxxx, Xxxxx, XX
14
Related
Premises #
74. U-HAUL CENTER CHANTILLY
0000 Xxxxxxx Xxxxx, Xxxxxxxxx, XX
75. U-HAUL CENTER OF SOUTHPARK
000 Xxxx Xxxxxx Xxxx, Xxxxxxxx
Xxxxxxx, XX
76. U-HAUL DUMFRIES
00000 Xxxxxxxx Xxxx, Xxxxxxxx, XX
77. U-HAUL CENTER NEWINGTON
0000 Xxxxxxxx Xxxx, Xxxxxxxxx, XX
78. U-HAUL CENTER POTOMAC XXXXX
00000 Xxxxxxxxx Xxxx, Xxxxxxxxxx, XX
15
Exhibit B
Management Fee Incentives
The following Incentive Fee shall be calculated and, if and to the extent
earned, paid, annually after the end of each fiscal year of Tenant:
In the event that net operating income of the Property equals or exceeds
110% (but less than 120%) of Base Rent under the Lease for the prior fiscal year
being calculated, the Incentive Fee for such quarter shall be 1% of the
Property's Gross Revenue for such fiscal year.
In the event that net operating income of the Property equals or exceeds
120% (but less than 130%) of Base Rent under the Lease for the prior fiscal year
being calculated, the Incentive Fee for such quarter shall be 2% of the
Property's Gross Revenue for such fiscal year.
In the event that net operating income of the Property equals or exceeds
130% (but less than 140%) of Base Rent under the Lease for the prior fiscal year
being calculated, the Incentive Fee for such quarter shall be 3% of the
Property's Gross Revenue for such fiscal year.
In the event that net operating income of the Property equals or exceeds
140% (but less than 150%) of Base Rent under the Lease for the prior fiscal year
being calculated, the Incentive Fee for such quarter shall be 4% of the
Property's Gross Revenue for such fiscal year.
In the event that net operating income of the Property equals or exceeds
150% of Base Rent under the Lease for the prior fiscal year being calculated,
the Incentive Fee for such quarter shall be 6% of the Property's Gross Revenue
for such fiscal year.
16
