SECURITY AGREEMENT
Exhibit 10.2
Execution
Copy
THIS
SECURITY AGREEMENT, dated as of June 28, 2005 is executed by U-Haul
Leasing
& Sales Co., a Nevada corporation, U-Haul Co. of Arizona, an Arizona
corporation, and U-Haul International, Inc., a Nevada corporation (collectively,
the “Borrowers”),
in
favor of Xxxxxxx Xxxxx Commercial Finance Corp., (with its successors in such
capacity, the “Lender”),
a
Delaware corporation.
RECITALS
A. Pursuant
to a Credit Agreement, dated as of June 28, 2005 (the “Credit
Agreement”),
between the Borrowers, U-Haul International, Inc., as Servicer/Manager and
Guarantor and the Lender, the Lender has agreed to extend certain credit
facilities to the Borrowers upon the terms and subject to the conditions set
forth therein.
B. The
Lender’s obligation to extend the credit facilities to the Borrowers under the
Credit Agreement is subject, among other conditions, to receipt by the Lender
of
this Security Agreement, duly executed by the Borrowers.
AGREEMENT
NOW,
THEREFORE, in consideration of the above recitals and for other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the Borrowers hereby agree with the Lender as follows:
1. Definitions
and Interpretation.
(a) Definitions.
When
used in this Security Agreement, the following terms shall have the following
respective meanings:
“Account
Bank”
means,
as applicable, the Collection Account Bank or the Collection Sub-Account
Bank.
“Account
Debtor”
shall
have the meaning given to that term in subparagraph
3(g)
hereof.
“Borrowers”
shall
have the meaning given to that term in the
introductory paragraph
hereof.
“Collateral”
shall
have the meaning given to that term in paragraph
2
hereof.
“Credit
Agreement”
shall
have the meaning given to that term in Recital
A
hereof.
“Dealer
List”
means a
list in electronic format, delivered by or on behalf of the Borrowers to the
Lender as updated from time to time in accordance with Section 8.01(g) of the
Credit Agreement.
“Equipment”
shall
have the meaning given to that term in Attachment
1
hereto.
“Inventory”
shall
have the meaning given to that term in Attachment
1
hereto.
“Lender”
shall
have the meaning given to that term in the introductory paragraph
hereof.
“Loan
Documents”
means
the Credit Agreement, the Note, the Guarantee Agreement, the Collection
Sub-Account Control Agreement, the Collection Account Control Agreement, this
Security Agreement and the Hybrid Facility Agreement.
“Obligations”
shall
mean and include all loans, advances, debts, liabilities and obligations,
howsoever arising, owed by the Borrowers to MLCFC (whether or not evidenced
by
any note or instrument and whether or not for the payment of money), direct
or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising pursuant to the terms of the Credit Agreement or any of the
other Loan Documents, including without limitation all interest, fees, charges,
expenses, attorneys’ fees and accountants’ fees chargeable to the Borrowers or
payable by the Borrowers thereunder.
“Proceeds”
means
all proceeds of, and all other profits, products, rentals or receipts, in
whatever form, arising from the collection, sale, lease, exchange, assignment,
licensing or other disposition of, or other realization upon, any Collateral,
including, without limitation, all claims of the Borrowers against third parties
for loss of, damage to or destruction of, or for proceeds payable under, or
unearned premiums with respect to, policies of insurance in respect of, any
Collateral, and any condemnation or requisition payments with respect to any
Collateral, in each case whether now existing or hereafter arising, provided
that, with respect to any Vehicle, “Proceeds” shall not include any dealer
commissions, licensing fees, maintenance costs and insurance expenses owing
under the Dealership Contracts.
“Receivables”
shall
have the meaning given to that term in Attachment 1 hereto.
“Secured
Obligations”
means
the obligations secured under this Security Agreement, including (a) all
principal of and interest (including, without limitation, any interest which
accrues after the commencement of any case, proceeding or other action relating
to the bankruptcy, insolvency or reorganization of any Borrower, whether or
not
allowed or allowable as a claim in any such case, proceeding or other action)
on
any Loan to the Borrowers under the Credit Agreement; (b) all other amounts
payable by the Borrowers to MLCFC hereunder or under any other Loan Document;
(c) any renewals or extensions of any of the foregoing; and (d) all other
obligations of the Borrowers or their Affiliates under any Loan
Document.
“UCC”
shall
mean the Uniform Commercial Code as in effect in the State of New York as of
the
date hereof.
“Vehicle”
shall
mean a motor vehicle owned any Borrower and constituting part of the Borrowers’
fleet of rental assets as identified on the Vehicle Schedule delivered by the
Borrowers to the Lender under the Credit Agreement a copy of which is attached
hereto as Attachment
4
(as the
same may be updated from time to time).
Unless
otherwise defined herein, all other capitalized terms used herein and defined
in
the Credit Agreement shall have the respective meanings given to those terms
in
the Credit Agreement, and all terms defined in the UCC shall have the respective
meanings given to those terms in the UCC.
(b) Other
Interpretive Provisions.
The
rules of construction set forth in Section 1.02
of
the Credit Agreement
shall,
to the extent not inconsistent with the terms of this Security Agreement, apply
to this Security Agreement and are hereby incorporated by
reference.
2. Grant
of Security Interest.
As
security for the Obligations, the Borrowers, jointly and severally, hereby
pledge and assign to the Lender and grant to the Lender a security interest
in
all right, title and interest of the Borrowers in and to the property whether
now owned or hereafter acquired described in Attachment
1
hereto,
as such Attachment may be amended or supplemented from time to time after the
date hereof by a supplemental Vehicle Schedule delivered by the Borrowers to
the
Lender (collectively and severally, the “Collateral”),
which
Attachment
1
is
incorporated herein by this reference.
3. Representations
and Warranties.
The
Borrowers, jointly and severally, represent and warrant to the Lender as
follows:
(a) Each
of
UHI and U-Haul Sales & Leasing Co. is a corporation duly authorized and
validly existing and in good standing under the laws of the State of Nevada.
U-Haul Co. of Arizona is a corporation duly authorized and validly existing
and
in good standing under the laws of the State of Arizona. Except as disclosed
on
Attachment
5,
none of
the Borrowers has (x) had any other corporate name during the past six years,
(y) changed its identity or corporate structure in any way within the past
six
years, or (z) used or operated under any other names (including trade names
or
other similar names) during the past six years. The exact corporate name of
each
Borrower as it appears on its certificate of incorporation, and location of
its
chief executive office are as follows:
(i) U-Haul
International, Inc., 0000 X. Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx
00000;
(ii) U-Haul
Co. of Arizona, 0000 X. Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000; and
(iii) U-Haul
Leasing & Sales Co., 0000 Xxxxxxxxx Xxx, Xxxx, Xxxxxx 00000.
(b) The
Borrowers are the legal and beneficial owner of the Collateral (or, in the
case
of after-acquired Collateral, at the time the Borrowers acquire rights in the
Collateral, will be the legal and beneficial owner thereof). No other Person
has
(or, in the case of after-acquired Collateral, at the time a Borrower acquires
rights therein, will have) any right, title, claim or interest (by way of Lien,
purchase option or otherwise) in, against or to the Collateral, other than
Permitted Encumbrances.
(c) All
actions have been taken that are necessary under the UCC to perfect the Lender’s
interest in the Collateral. All actions have been taken that are necessary
under
applicable state vehicle titling and registration law to perfect the Borrowers’
interest in Vehicles constituting the Collateral.
(d) The
Borrowers have not performed any acts which might prevent the Lender from
enforcing any of the terms of this Security Agreement or which would limit
the
Lender in any such enforcement. Other than financing statements or other similar
or equivalent documents or instruments with respect to the Security Interests
and Permitted Encumbrances, no financing statement, mortgage, security agreement
or similar or equivalent document or instrument covering all or any part of
the
Collateral is on file or of record in any jurisdiction in which such filing
or
recording would be effective to perfect a Lien on such Collateral.
(e) The
Borrowers shall furnish to the Lender on or before the Closing Date lien search
reports or other evidence satisfactory to the Lender that no liens prior to
the
lien of this Agreement shall exist with respect to any Collateral, other than
liens on Vehicles under the Foothill Facility.
(f) All
Equipment and Inventory are (i) located at the locations indicated in the most
recent Dealer List delivered to the Lender, and have been consigned to the
possession of a third-party dealer pursuant to the Dealership Contracts, except
when such Equipment and Inventory have been rented to consumers in the ordinary
course of the Borrowers’ business, as such list of locations may be updated by
the Borrowers from time to time at the request of the Lender, (ii) in transit
to
such locations or (iii) in transit to a third party purchaser which will become
obligated on a Receivable to a Borrower upon receipt. Except for Equipment
and
Inventory referred to in the preceding sentence, the Borrowers have exclusive
possession and control of the Inventory and Equipment. All Equipment and
Inventory has been acquired by the Borrowers in the ordinary course of the
Borrowers’ business.
(g) Each
Receivable is genuine and enforceable against the party obligated to pay such
Receivable (an “Account
Debtor”)
free
from any right of rescission, defense, setoff or discount. Each Receivable
was
originated in the ordinary course of the Borrowers’ business.
(h) Each
insurance policy maintained by the Borrowers in accordance with Section 8.07
of
the Credit Agreement is validly existing and is in full force and effect. The
Borrowers are not in default in any material respect under the provisions of
any
such insurance policy, and there are no facts which, with the giving of notice
or passage of time (or both), would result in such a default under any provision
of any such insurance policy. Set forth in Attachment
3
hereto
is a complete and accurate list of the insurance of the Borrowers in effect
on
the date of this Agreement required pursuant to Section 8.07 of the Credit
Agreement showing as of such date, (i) the type of insurance carried,
(ii) the name of the insurance carrier, and (iii) the amount
of each
type of insurance carried.
(i) The
information set forth in each Dealer List delivered pursuant to Section 8.01(g)
of the Credit Agreement is true, correct and accurate.
4. Covenants.
The
Borrowers, jointly and severally, hereby agree as follows:
(a) The
Borrowers, at the Borrowers’ expense, shall promptly procure, execute and
deliver to the Lender all documents, instruments and agreements and perform
all
acts which are necessary or desirable, or which the Lender may request, to
establish, maintain, preserve, protect and perfect the Collateral, the Lien
granted to the Lender therein and the first priority of such Lien or to enable
the Lender to exercise and enforce its rights and remedies hereunder with
respect to any Collateral.
(b) The
Borrowers shall not use or permit any Collateral to be used in violation
of
(i) any provision of the Credit Agreement, this Security Agreement or any other
Loan Document, (ii) any applicable Governmental Rule where such use
might
have a Material Adverse Effect, or (iii) any policy of insurance covering
the Collateral.
(c) The
Borrowers shall pay promptly when due all taxes and other Governmental Charges,
all Liens and all other charges now or hereafter imposed upon, relating to
or
affecting any Collateral.
(d) Without
thirty (30) days’ prior written notice to the Lender, no Borrower shall (i)
change its jurisdiction of organization, or the office in which such Borrower’s
books and records relating to Receivables or the originals of Dealership
Contracts or Rental Company Contracts are kept, (ii) keep Collateral
consisting of documents at any location other than the offices of UHI or U-Haul
Co. of Arizona at 0000 X. Xxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, or the offices
of U-Haul Sales & Leasing Co. at 0000 Xxxxxxxxx Xxx, Xxxx, Xxxxxx 00000, or
(iii) keep Collateral consisting of Equipment, Inventory or other goods at
any
location other than the locations permitted pursuant to Section 9.02 of the
Credit Agreement.
(e) For
each
of the Collection Sub-Account and the Collection Account, UHI shall (i) execute
and deliver to the Account Bank a Collection Sub-Account Control Agreement
and a
Collection Account Control Agreement substantially in the form of Attachment
2
hereto
and (ii) cause the Account Bank to execute and deliver to the Lender such an
account control agreement.
(f) Commencing
from the date hereof, the Borrowers shall make or cause to be made all deposits
required pursuant to Section 5.03 of the Credit Agreement, at the times so
required.
(g) The
Borrowers shall fully comply with any shifting control notice delivered pursuant
to the Collection Account Control Agreement.
(h) The
Borrowers shall appear in and defend any action or proceeding which may affect
its title to or the Lender’s interest in the Collateral.
(i) The
Borrowers shall keep separate, accurate and complete records of the Collateral
and shall provide the Lender with such records and such other reports and
information relating to the Collateral as the Lender may reasonably request
from
time to time.
(j) The
Borrowers shall not surrender or lose possession of (other than to the Lender),
sell, encumber, lease, rent, option, or otherwise dispose of or transfer any
Collateral or right or interest therein except in the ordinary course of the
Borrowers’ business and as permitted in the Credit Agreement, and,
notwithstanding any provision of the Credit Agreement, the Borrowers shall
keep
the Collateral free of all Liens except Permitted Encumbrances.
(k) The
Borrowers shall collect, enforce and receive delivery of the Receivables in
accordance with past practice until otherwise notified by the
Lender.
(l) The
Borrowers shall comply with all material Requirements of Law applicable to
the
Borrowers which relate to the production, possession, operation, maintenance
and
control of the Collateral.
(m) The
Borrowers shall (i) maintain and keep in force public liability insurance of
the
types and in amounts customarily carried from time to time during the term
of
the Credit Agreement in its lines of business, such insurance to be carried
with
companies and in amounts satisfactory to the Lender, (ii) deliver to the Lender
from time to time, as the Lender may request, schedules setting forth all
insurance then in effect, and (iii) deliver to the Lender copies of
each
policy of insurance which replaces, or evidences the renewal of, each existing
policy of insurance at least fifteen (15) days prior to the expiration of such
policy. If required pursuant to Section 8.07 of the Credit Agreement, the Lender
shall be named as additional insured on all liability insurance of the Borrowers
with respect to any Collateral, and such policies shall contain such additional
endorsements as shall be required by the Lender, including the endorsements
specified in Attachment 3
hereto.
Prior to the occurrence and the continuance of an Event of Default, all proceeds
of any property insurance (whether maintained by any Borrower or a third party)
paid as a result of any event or occurrence shall be paid to the Borrowers.
All
proceeds of any property insurance (whether maintained by any Borrower or a
third party) paid after the occurrence and during the continuance of an Event
of
Default shall be paid to the Lender to be held as Collateral and applied as
provided in the Credit Agreement or, at the election of the Lender, returned
to
the Borrowers.
5. Authorized
Action by Lender.
The
Borrowers hereby irrevocably appoint the Lender as its attorney-in-fact and
agree that the Lender may perform (but the Lender shall not be obligated to
and
shall incur no liability to the Borrowers or any third party for failure so
to
do) any act which the Borrowers are obligated by this Security Agreement to
perform, and to exercise such rights and powers as Borrowers might exercise
with
respect to the Collateral, including, without limitation, the right to
(a) collect by legal proceedings or otherwise and endorse, receive and
receipt for all dividends, interest, payments, proceeds and other sums and
property now or hereafter payable on or on account of the Collateral;
(b) enter into any extension, reorganization, deposit, merger,
consolidation or other agreement pertaining to, or deposit, surrender, accept,
hold or apply other property in exchange for the Collateral; (c) insure,
process, preserve and enforce the Collateral; (d) make any compromise
or
settlement, and take any action it deems advisable, with respect to the
Collateral; (e) pay any Indebtedness of any Borrower relating to the
Collateral; (f) execute UCC financing statements and other documents,
instruments and agreements required hereunder; (g) note any Borrower’s lien on
certificates of title relating to the Collateral; provided,
however,
that
the Lender may exercise such powers only after the occurrence and during the
continuance of an Event of Default. The Borrowers agree to reimburse the Lender
upon demand for all reasonable costs and expenses, including attorneys’ fees,
that the Lender may incur while acting as the Borrowers’ attorney-in-fact
hereunder, all of which costs and expenses are included in the Obligations.
The
Borrowers agree that such care as the Lenders gives to the safekeeping of its
own property of like kind shall constitute reasonable care of the Collateral
when in the Lender’s possession; provided,
however,
that
Lender shall not be required to make any presentment, demand or protest, or
give
any notice and need not take any action to preserve any rights against any
prior
party or any other Person in connection with the Obligations or with respect
to
the Collateral.
6. Default
and Remedies.
The
Borrowers shall be deemed in default under this Security Agreement upon the
occurrence and during the continuance of an Event of Default, as that term
is
defined in the Credit Agreement. In addition to all other rights and remedies
granted to the Lender by this Security Agreement, the Credit Agreement, the
other Loan Documents, the UCC and other applicable Governmental Rules, the
Lender may, upon the occurrence and during the continuance of any Event of
Default, exercise any one or more of the following rights and remedies:
(a) collect, receive, appropriate or realize upon the Collateral or
otherwise foreclose or enforce the Lender’s security interests in any or all
Collateral in any manner permitted by applicable Governmental Rules or in this
Security Agreement; (b) notify any or all Account Debtors to make payments
on
Receivables directly to the Lender; (c) direct any Depositary Bank or
Intermediary to liquidate the account(s) maintained by it, pay all amounts
payable in connection therewith to the Lender and/or deliver any proceeds
thereof to the Lender; (d) sell or otherwise dispose of any or all Collateral
at
one or more public or private sales, whether or not such Collateral is present
at the place of sale, for cash or credit or future delivery, on such terms
and
in such manner as the Lender may determine; (e) require the Borrowers to
assemble the Collateral and make it available to the Lender at a place to be
designated by the Lender; (f) enter onto any property where any Collateral
is
located and take possession thereof with or without judicial process; and
(g) prior to the disposition of the Collateral, store, process, repair
or
recondition any Collateral consisting of goods, perform any obligations and
enforce any rights of the Borrowers or their Subsidiaries under any Dealership
Contracts, any Rental Company Contracts or the Fleet Owner Agreement, or
otherwise prepare and preserve Collateral for disposition in any manner and
to
the extent the Lender deems appropriate. In furtherance of the Lender’s rights
hereunder, the Borrowers hereby grant to the Lender an irrevocable,
non-exclusive license (exercisable without royalty or other payment by the
Lender) to use, license or sublicense any patent, trademark, tradename,
copyright or other intellectual property in which any Borrower now or hereafter
has any right, title or interest, together with the right of access to all
media
in which any of the foregoing may be recorded or stored. In any case where
notice of any sale or disposition of any Collateral is required, the Borrowers
hereby agree that seven (7) days notice of such sale or disposition is
reasonable.
7. Miscellaneous.
(a) Notices.
Except
in the case of notices and other communications expressly permitted to be given
by telephone, all notices and other communications provided for herein shall
be
in writing and shall be delivered by hand or overnight courier service, mailed
by certified or registered mail or sent by telecopy, as follows:
(i) if
to any
Borrower, to it at 0000 Xxxxxxxxx Xxx, Xxxx, XX 00000-0000, Attention: Xxxxx
Xxxxxxx (Facsimile No. (000) 000-0000), with a copy to 0000 X. Xxxxxxx Xxxxxx,
Xxxxxxx, XX 00000, Attention: Xxxxxxxx Xxxxxxx (Facsimile No. (000) 000-0000);
and
(ii) if
to the
Lender, to it at 0 Xxxxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000,
Attention: Xxxxxxx Xxxxx (Facsimile No. (000) 000-0000).
Any
party
hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All notices
and
other communications given to any party hereto in accordance with the provisions
of this Agreement shall be deemed to have been given on the date of
receipt.
(b) Waivers;
Amendments.
No
failure or delay by the Lender in exercising any right or power hereunder or
under any other Loan Document shall operate as a waiver thereof, nor shall
any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other
or
further exercise thereof or the exercise of any other right or power. The rights
and remedies of the Lender hereunder and under the other Loan Documents are
cumulative and are not exclusive of any rights or remedies that they would
otherwise have. No waiver of any provision of any Loan Document or consent
to
any departure by any Loan Party therefrom shall in any event be effective unless
the same shall be permitted by paragraph (b) of this Section, and then such
waiver or consent shall be effective only in the specific instance and for
the
purpose for which given. Without limiting the generality of the foregoing,
the
making of a Loan shall not be construed as a waiver of any Default, regardless
of whether the Lender may have had notice or knowledge of such Default at the
time.
Neither
this Agreement nor any other Loan Document nor any provision hereof or thereof
may be waived, amended or modified except, in the case of this Agreement,
pursuant to an agreement or agreements in writing entered into by the Borrowers
and the Lender or, in the case of any other Loan Document, pursuant to an
agreement or agreements in writing entered into by the Loan Party or Loan
Parties that are parties thereto with the consent of the Lender.
(c) Successors
and Assigns.
The
provisions of this Agreement shall be binding upon and inure to the benefit
of
the parties hereto and their respective successors and assigns permitted hereby,
except that a Borrower may not assign or otherwise transfer any of its rights
or
obligations hereunder without the prior written consent of the Lender (and
any
attempted assignment or transfer by a Borrower without such consent shall be
null and void). Nothing in this Agreement, expressed or implied, shall be
construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby and, to the extent expressly
contemplated hereby, the Related Parties of the Lender) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(i) The
Lender may, without the consent of the Borrowers, assign all or a portion of
its
rights and obligations under this Agreement;
(ii) The
Lender may at any time pledge or assign a security interest in all or any
portion of its rights under this Agreement to secure obligations of the Lender,
including any pledge or assignment to secure obligations to a Federal Reserve
Bank, and this Section shall not apply to any such pledge or assignment of
a
security interest; provided
that no
such pledge or assignment of a security interest shall release the Lender from
any of its obligations hereunder or substitute any such pledgee or assignee
for
the Lender as a party hereto.
(d) Severability.
Any
provision of this Agreement held to be invalid, illegal or unenforceable in
any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such invalidity, illegality or unenforceability without affecting the validity,
legality and enforceability of the remaining provisions hereof; and the
invalidity of a particular provision in a particular jurisdiction shall not
invalidate such provision in any other jurisdiction.
(e) Survival.
All
covenants, agreements, representations and warranties made by the Loan Parties
in the Loan Documents and in the certificates or other instruments delivered
in
connection with or pursuant to this Agreement or any other Loan Document shall
be considered to have been relied upon by the other parties hereto and shall
survive the execution and delivery of the Loan Documents and the making of
any
Loans, regardless of any investigation made by any such other party or on its
behalf and notwithstanding that the Lender may have had notice or knowledge
of
any Default or incorrect representation or warranty at the time any credit
is
extended hereunder, and shall continue in full force and effect as long as
the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid and so long as the
Commitments have not expired or terminated. Notwithstanding any provision of
this Security Agreement or any other Loan Document or any exercise by the Lender
of any of its rights hereunder or thereunder (including, without limitation,
any
right to collect or enforce any Collateral), the security interest shall survive
payment in full and satisfaction of all Obligation in the Aged Truck Facility
until payment in full and satisfaction of all obligations under the Hybrid
Facility.
(f) Borrowers’
Continuing Liability.
Notwithstanding any provision of this Security Agreement or any other Loan
Document or any exercise by the Lender of any of its rights hereunder
or
thereunder (including, without limitation, any right to collect or enforce
any
Collateral), (i) the Borrowers and their Subsidiaries shall remain liable to
perform their obligations and duties in connection with the Collateral
(including, without limitation, the Fleet Owner Agreement, the Rental Company
Contracts, the Dealership Contracts and all other agreements relating to the
Collateral) and (ii) the Lender shall not assume any liability to perform such
obligations and duties or to enforce any of the Borrowers’ rights in connection
with the Collateral (including, without limitation, Fleet Owner Agreement,
the
Rental Company Contracts, the Dealership Contracts and all other agreements
relating to the Collateral).
(g) Governing
Law.
THIS
AGREEMENT SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF
THE
STATE OF NEW YORK.
(i) Each
Borrower hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of the Supreme Court of the State
of
New York sitting in New York County and of the United States District Court
of
the Southern District of New York, and any appellate court from any thereof,
in
any action or proceeding arising out of or relating to any Loan Document, or
for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of
any
such action or proceeding may be heard and determined in such New York State
or,
to the extent permitted by law, in such Federal court. Each of the parties
hereto agrees that a final judgment in any such action or proceeding shall
be
conclusive and may be enforced in other jurisdictions by suit on the judgment
or
in any other manner provided by law. Nothing in this Agreement or any other
Loan
Document shall affect any right that the Lender may otherwise have to bring
any
action or proceeding relating to this Agreement or any other Loan Document
against any Borrower or its properties in the courts of any
jurisdiction.
(ii) Each
Borrower hereby irrevocably and unconditionally waives, to the fullest extent
it
may legally and effectively do so, any objection which it may now or hereafter
have to the laying of venue of any suit, action or proceeding arising out of
or
relating to this Agreement or any other Loan Document in any court referred
to
in subparagraph (g)(i) of this Section. Each of the parties hereto hereby
irrevocably waives, to the fullest extent permitted by law, the defense of
an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(iii) Each
Borrower hereby irrevocably agrees that service of process in any such action
or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such
Borrower at its address set forth in Section 7(a) or at such other address
of
which the Lender shall have been notified pursuant thereto. Nothing in this
Agreement or any other Loan Document will affect the right of any party to
this
Agreement to serve process in any other manner permitted by law.
(h) WAIVER
OF JURY TRIAL.
EACH
PARTY HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR
INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT, ANY OTHER LOAN DOCUMENT
OR THE TRANSACTIONS CONTEMPLATED HEREBY (WHETHER BASED ON CONTRACT, TORT OR
ANY
OTHER THEORY). THE BORROWER CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY
OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER
PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER.
(i) Headings.
Section
and subsection headings used herein are for convenience of reference only,
are
not part of this Agreement and shall not affect the construction of, or be
taken
into consideration in interpreting, this Agreement.
(j) Joint
and Several Liability of Borrowers.
Each
Borrower acknowledges and agrees that, whether or not specifically indicated
as
such in a Loan Document, all Obligations shall be joint and several Obligations
of each individual Borrower, and in furtherance of such joint and several
Obligations, each Borrower hereby irrevocably and unconditionally guarantees
the
payment of all Obligations of each other Borrower. Each Borrower hereby
acknowledges and agrees that such Borrower shall be jointly and severally liable
to the Lender for all representations, warranties, covenants and, obligations
and indemnities of the Borrowers hereunder.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the Borrowers have caused this Security Agreement to be
executed as of the day and year first above written.
U-HAUL
LEASING & SALES CO.
By:
/s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Assistant Treasurer
U-HAUL
CO. OF ARIZONA
By:
/s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Assistant Treasurer
U-HAUL
INTERNATIONAL, INC.
By:
/s/
Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Assistant Treasurer
ATTACHMENT
1
To
Security Agreement
COLLATERAL
DESCRIPTION
All
right, title and interest of the Borrowers, whether now owned or hereafter
acquired, in and to the following:
(a) All
equipment as defined in the UCC listed on the accompanying Vehicle Schedule,
as
the same may be updated from time to time pursuant to the Credit Agreement,
including, without limitation, all Vehicles, together with all additions and
accessions thereto and replacements therefor (collectively, the “Equipment”);
(b) All
inventory as defined in the UCC listed on the accompanying Vehicle Schedule,
as
the same may be updated from time to time pursuant to the Credit Agreement,
including, without limitation, all Vehicles, together with all additions and
accessions thereto, replacements therefor, products thereof and documents
therefor (collectively, the “Inventory”);
(c) All
amounts receivable with respect to Fleet Owner Cash Flows and with respect
to
sales of Vehicles to third parties (the “Receivables”);
(d) The
Dealership Contracts, the Rental Company Contracts and the Fleet Owner
Agreement;
(e) The
Collection Account, and all cash on deposited therein from time to
time;
(f) The
Collection Sub-Account, and all cash deposited therein from time to time;
and
All
Proceeds of the foregoing (including, without limitation, whatever is receivable
or received when Collateral or proceeds is sold, collected, exchanged, returned,
substituted or otherwise disposed of, whether such disposition is voluntary
or
involuntary, including rights to payment and return premiums and insurance
proceeds under insurance with respect to any Collateral, and all rights to
payment with respect to any cause of action affecting or relating to the
Collateral).
ATTACHMENT 2
To
Security Agreement
FORM
OF
COLLECTION
ACCOUNT CONTROL AGREEMENT
AND
COLLECTION SUB- ACCOUNT CONTROL AGREEMENT
ATTACHMENT
3
To
Security Agreement
INSURANCE
AND
INSURANCE
ENDORSEMENTS
If
required pursuant to Section 8.07 of the Credit Agreement, each of the liability
insurance policies of the Borrowers shall contain substantially the following
endorsements:
(a) Xxxxxxx
Xxxxx Commercial Finance Corp. (the “Lender”)
shall
be named as additional insured.
(b) In
respect of the interests of the Lender in the policies, the insurance shall
not
be invalidated by any action or by inaction of any Borrower or by any Person
having temporary possession of the property covered thereby (the “Property”)
while
under contract with any Borrower to perform maintenance, repair, alteration
or
similar work on the Property, and shall insure the interests of the Lender
regardless of any breach or violation of any warranty, declaration or condition
contained in the insurance policy by any Borrower or the Lender or any other
additional insured (other than by such additional insured, as to such additional
insured) or by any Person having temporary possession of the Property while
under contract with any Borrower to perform maintenance, repair, alteration
or
similar work on the Property.
(c) If
the
insurance policy is cancelled for any reason whatsoever, or substantial change
is made in the coverage that affects the interests of the Lender, or if the
insurance coverage is allowed to lapse for non-payment of premium, such
cancellation, change or lapse shall not be effective as to the Lender for 30
days (or 10 days in the case of non-payment of premium) after receipt by the
Lender of written notice from the insurer of such cancellation, change or
lapse.
(d) The
Lender shall not have any obligation or liability for premiums, commissions,
assessments, or calls in connection with the insurance.
(e) The
insurer shall waive any rights of set-off or counterclaim or any other
deduction, whether by attachment or otherwise, that it may have against the
Lender.
(f) The
insurance shall be primary without right of contribution from any other
insurance that may be carried by the Lender with respect to its interests in
the
Property.
(g) The
insurer shall waive any right of subrogation against the Lender.
(h) All
provisions of the insurance, except the limits of liability, shall operate
in
the same manner as if there were a separate policy covering each insured
party.
ATTACHMENT
4
To
Security Agreement
VEHICLE
SCHEDULE
[Please
See Electronic Copy]
ATTACHMENT
5
To
Security Agreement
SCHEDULE
OF PRIOR NAMES, TRADE NAMES, PRIOR CORPORATE
STRUCTURES,
ETC.
|
COMPANY
|
FORMER
NAMES
(1998
- Present)
|
CHANGES
TO CORPORATE STRUCTURE
(1998
- Present)
|
FICTITIOUS
NAMES
(1998
- Present)
|
|
U-Haul
International, Inc.
|
None
|
None
|
None
|
|
U-Haul
Leasing & Sales Co.
|
None
|
None
|
None
|
|
U-Haul
Co. of Arizona
|
None
|
None
|
U-Haul
Co. of Southern Arizona
U-Haul
Co. of Western Arizona
U-Haul
Co. of Eastern Arizona
|
