Exhibit T3C
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AMERCO
AND THE GUARANTORS LISTED ON THE SIGNATURE PAGES HERETO
9.0% SECOND LIEN SENIOR SECURED NOTES DUE 2009
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INDENTURE
Dated as of March __, 2004
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XXXXX FARGO BANK, N.A.,
as Trustee
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CROSS-REFERENCE TABLE
TIA Indenture
Section Section
------- -------
310(a)(1)...................................... 7.10
(a)(2)................................. 7.10
(a)(3)................................. 7.12
(a)(4)................................. N.A.
(a)(5)................................. 7.10
(b).................................... 7.10
(c).................................... N.A.
311(a) ....................................... 7.11
(b).................................... 7.11
(c).................................... N.A.
312(a) ....................................... 2.05
(b).................................... 13.03
(c).................................... 13.03
313(a) ....................................... 7.06
(b)(2)................................. 7.06; 7.07
(c).................................... 7.06; 13.02
(d).................................... 7.06
314(a) ....................................... 4.03
314(a)(4)...................................... 13.05
(c)(1)................................. 13.04
(c)(2)................................. 13.04
(c)(3)................................. N.A.
(e).................................... 13.05
(f).................................... N.A.
315(a) ....................................... 7.01
(b).................................... 7.05;13.02
(c).................................... 7.01
(d).................................... 7.01
(e).................................... 6.11
316(a) (last sentence)......................... 2.09
(a)(1)(A).............................. 6.05
(a)(1)(B).............................. 6.04
(a)(2)................................. N.A.
(b).................................... 6.06; 6.07
(c).................................... 2.12
317(a)(1)...................................... 6.08
(a)(2)................................. 6.09
(b).................................... 2.04
318(a) ....................................... 13.01
(b).................................... N.A.
(c).................................... 13.01
N.A. means Not Applicable
Note: This Cross-Reference Table is not part of this Agreement.
TABLE OF CONTENTS
PAGE
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE................................ 1
1.01 Definitions....................................................................... 1
1.02 Other Definitions................................................................. 28
1.03 Incorporation by Reference of Trust Indenture Act................................. 28
1.04 Accounting Terms; GAAP............................................................ 29
1.05 Code.............................................................................. 29
1.06 Construction...................................................................... 29
1.07 Schedules and Exhibits............................................................ 30
ARTICLE II THE NOTES................................................................. 30
2.01 Form and Dating................................................................... 30
2.02 Execution and Authentication...................................................... 31
2.03 Registrar and Paying Agent........................................................ 31
2.04 Paying Agent to Hold Money in Trust............................................... 32
2.05 Holder Lists...................................................................... 32
2.06 Transfer and Exchange............................................................. 32
2.07 Replacement Notes................................................................. 40
2.08 Outstanding Notes................................................................. 41
2.09 Treasury Notes.................................................................... 41
2.10 Temporary Notes................................................................... 41
2.11 Cancellation...................................................................... 42
2.12 Defaulted Interest................................................................ 42
2.13 CUSIP Numbers..................................................................... 42
2.14 Deposit of Moneys................................................................. 42
ARTICLE III REDEMPTION AND PREPAYMENT................................................. 43
3.01 Notices to the Trustee........................................................... 43
3.02 Selection of Notes to Be Redeemed................................................ 43
3.03 Notice of Redemption............................................................. 43
3.04 Effect of Notice of Redemption................................................... 44
3.05 Deposit of Redemption Price...................................................... 44
3.06 Notes Redeemed in Part........................................................... 45
3.07 Optional Redemption.............................................................. 45
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TABLE OF CONTENTS
(Continued)
PAGE
3.08 Mandatory Redemption............................................................. 45
ARTICLE IV AFFIRMATIVE COVENANTS..................................................... 45
4.01 Payment of Notes.................................................................. 46
4.02 Maintenance of Office or Agency................................................... 46
4.03 Accounting System................................................................. 46
4.04 Financial Statements, Reports, Certificates....................................... 47
4.05 Guarantor Reports................................................................. 49
4.06 Maintenance of Properties......................................................... 50
4.07 Taxes............................................................................. 50
4.08 Insurance......................................................................... 50
4.09 Location of Equipment............................................................. 51
4.10 Compliance with Laws.............................................................. 51
4.11 Leases............................................................................ 52
4.12 Existence......................................................................... 52
4.13 Environmental..................................................................... 52
4.14 Real Estate....................................................................... 52
4.15 Reorganization Plan............................................................... 53
4.16 Vehicles.......................................................................... 53
4.17 Cash Management Agreements........................................................ 54
4.18 Credit Card Agreements............................................................ 54
4.19 Disclosure Updates................................................................ 54
4.20 Material Contracts; Affiliate Contracts........................................... 54
4.21 Employee Benefits................................................................. 55
ARTICLE V NEGATIVE COVENANTS........................................................ 56
5.01 Indebtedness, Etc................................................................. 56
5.02 Liens............................................................................. 57
5.03 Restrictions on Fundamental Changes............................................... 57
5.04 Disposal of Assets................................................................ 58
5.05 Change Name....................................................................... 58
5.06 Guarantee......................................................................... 59
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TABLE OF CONTENTS
(Continued)
PAGE
5.07 Nature of Business................................................................ 59
5.08 Prepayments and Amendments........................................................ 59
5.09 Change of Control................................................................. 60
5.10 Ownership of Certain Assets....................................................... 60
5.11 Distributions..................................................................... 60
5.12 Accounting Methods................................................................ 61
5.13 Formation of Subsidiaries; Investments............................................ 61
5.14 Transactions with Affiliates...................................................... 62
5.15 Suspension........................................................................ 62
5.16 Use of Proceeds................................................................... 62
5.17 Change in Location of Chief Executive Office; Equipment with Bailees.............. 62
5.18 Securities Accounts............................................................... 62
5.19 Financial Covenants............................................................... 63
5.20 Employee Benefits................................................................. 64
5.21 Sales and Leasebacks.............................................................. 65
5.22 Anti-Terrorism Laws............................................................... 65
5.23 Speculative Transactions.......................................................... 66
5.24 Amendment to Certain Agreements................................................... 66
5.25 Waiver of Stay, Extension or Usury Laws........................................... 66
ARTICLE VI DEFAULTS AND REMEDIES..................................................... 66
6.01 Events of Default................................................................. 66
6.02 Acceleration...................................................................... 69
6.03 Other Remedies.................................................................... 69
6.04 Waiver of Past Defaults........................................................... 69
6.05 Control by Majority............................................................... 70
6.06 Limitation on Suits............................................................... 70
6.07 Rights of Holders of Notes to Receive Payment..................................... 71
6.08 Collection Suit by the Trustee.................................................... 71
6.09 The Trustee May File Proofs of Claim.............................................. 71
6.10 Priorities........................................................................ 72
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TABLE OF CONTENTS
(Continued)
PAGE
6.11 Undertaking for Costs............................................................. 72
6.12 The Trustee May Enforce Claims Without Possession of Notes........................ 72
6.13 Restoration of Rights and Remedies................................................ 73
6.14 Rights and Remedies Cumulative.................................................... 73
6.15 Delay or Omission Not Waiver...................................................... 73
ARTICLE VII TRUSTEE................................................................... 73
7.01 Duties of the Trustee............................................................. 73
7.02 Rights of the Trustee............................................................. 75
7.03 Individual Rights of the Trustee.................................................. 76
7.04 The Trustee's Disclaimer.......................................................... 76
7.05 Notice of Defaults................................................................ 76
7.06 Reports by the Trustee to Holders of the Notes.................................... 77
7.07 Compensation and Indemnity........................................................ 77
7.08 Replacement of the Trustee........................................................ 78
7.09 Successor Trustee by Merger, etc.................................................. 79
7.10 Eligibility; Disqualification..................................................... 79
7.11 Preferential Collection of Claims Against Company................................. 80
7.12 Additional Co-Collateral Trustees; Separate Collateral Trustees................... 80
ARTICLE VIII LEGAL DEFEASANCE AND COVENANT DEFEASANCE.................................. 82
8.01 Option to Effect Legal Defeasance or Covenant Defeasance.......................... 82
8.02 Legal Defeasance and Discharge.................................................... 82
8.03 Covenant Defeasance............................................................... 82
8.04 Conditions to Legal or Covenant Defeasance........................................ 83
8.05 Deposited Money and U.S. Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions.................................................... 84
8.06 Repayment to Company.............................................................. 85
8.07 Reinstatement..................................................................... 85
ARTICLE IX AMENDMENT, SUPPLEMENT AND WAIVER.................................................. 85
9.01 Without Consent of Holders of Notes............................................... 85
9.02 With Consent of Holders of Notes.................................................. 86
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TABLE OF CONTENTS
(Continued)
PAGE
9.03 Compliance with Trust Indenture Act............................................... 88
9.04 Revocation and Effect of Consents................................................. 88
9.05 Notation on or Exchange of Notes.................................................. 88
9.06 The Trustee to Sign Amendments, etc............................................... 88
9.07 Effect of Amendment of, Refinancing of or Termination of New Credit
Agreement......................................................................... 89
ARTICLE X NOTE GUARANTEES........................................................... 92
10.01 Guarantee......................................................................... 92
10.02 Limitation on Guarantor Liability................................................. 96
10.03 Execution and Delivery of Note Guarantee.......................................... 96
10.04 Guarantors May Consolidate, etc., on Certain Terms................................ 97
10.05 Rights under the Note Guarantees.................................................. 97
10.06 Primary Obligations............................................................... 97
10.07 Waiver of Subrogation and Contribution............................................ 98
10.08 Cumulative Remedies............................................................... 98
10.09 Successors and Assigns............................................................ 98
10.10 Guarantee by Future Subsidiaries.................................................. 98
ARTICLE XI COLLATERAL................................................................ 99
11.01 Delivery of Security Documents.................................................... 99
11.02 Recording and Opinions............................................................ 101
11.03 Possession and Use of Collateral.................................................. 102
11.04 Release and Disposition of Collateral............................................. 102
11.05 Intercreditor Agreement........................................................... 103
11.06 Grant of Security Interest........................................................ 103
11.07 Negotiable Collateral and Chattel Paper........................................... 104
11.08 Collection of Accounts, General Intangibles, and Negotiable Collateral............ 104
11.09 Delivery of Additional Documentation Required..................................... 105
11.10 Power of Attorney................................................................. 105
11.11 Control Agreements................................................................ 106
11.12 Commercial Tort Claims............................................................ 106
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TABLE OF CONTENTS
(Continued)
PAGE
11.13 Grants, Rights and Remedies....................................................... 106
11.14 Survival.......................................................................... 107
11.15 Authorization of Actions to be Taken by the Trustee Under the Collateral
Documents......................................................................... 107
11.16 Quebec Security................................................................... 107
ARTICLE XII SATISFACTION AND DISCHARGE................................................ 108
12.01 Satisfaction and Discharge........................................................ 108
12.02 Application of Trust Money........................................................ 109
ARTICLE XIII MISCELLANEOUS............................................................. 109
13.01 Trust Indenture Act Controls...................................................... 109
13.02 Notices........................................................................... 109
13.03 Communication by Holders of Notes with Other Holders of Notes..................... 111
13.04 Certificate and Opinion as to Conditions Precedent................................ 111
13.05 Statements Required in Certificate or Opinion..................................... 111
13.06 Rules by the Trustee and Agents................................................... 112
13.07 No Personal Liability of Directors, Officers, Employees and Stockholders.......... 112
13.08 Confidentiality................................................................... 112
13.09 Governing Law..................................................................... 112
13.10 No Adverse Interpretation of Other Agreements..................................... 113
13.11 Successors........................................................................ 113
13.12 Severability...................................................................... 114
13.13 Counterpart Originals............................................................. 114
13.14 Table of Contents, Headings, etc.................................................. 114
13.15 Supremacy of this Agreement....................................................... 114
13.16 Further Assurances................................................................ 114
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EXHIBITS
Exhibit A FORM OF CLASS A NOTE
Exhibit B FORM OF CLASS B NOTE
Exhibit C FORM OF NOTE GUARANTEE
Exhibit D FORM OF SUPPLEMENTAL INDENTURE
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INDENTURE dated as of March __, 2004 (this "Agreement") by and among
AMERCO, a Nevada corporation (the "Company"), the guarantors listed on the
signature pages hereto (collectively, the "Guarantors") and XXXXX FARGO BANK,
N.A., as trustee (the "Trustee").
The Company, the Guarantors and the Trustee agree as follows for the
benefit of each other and for the equal and ratable benefit of the Holders of
the Notes:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
1.01 Definitions.
"Account Debtor" means any Person who is or who may become obligated
under, with respect to, or on account of, an Account, Chattel Paper, or a
General Intangible.
"Accounts" means any Person's now owned or hereafter acquired right,
title, and interest with respect to "accounts" as such term is defined in the
Code, and any and all Supporting Obligations in respect thereof.
"Additional Interest" has the meaning set forth in the Registration
Rights Agreement.
"Affiliate" means, as applied to any Person, any other Person who,
directly or indirectly, controls, is controlled by, or is under common control
with, such Person. For purposes of this definition, "control" means the
possession, directly or indirectly, of the power to direct the management and
policies of a Person, whether through the ownership of Stock, by contract, or
otherwise; provided, however, that, for purposes of Section 5.14 hereof: (a) any
Person which owns directly or indirectly 10% or more of the securities having
ordinary voting power for the election of directors or other members of the
governing body of a Person or 10% or more of the partnership or other ownership
interests of a Person (other than as a limited partner of such Person) shall be
deemed to control such Person, (b) each director (or comparable manager) of a
Person shall be deemed to be an Affiliate of such Person, and (c) each
partnership or joint venture in which a Person is a partner or joint venturer
shall be deemed to be an Affiliate of such Person. For the avoidance of doubt,
SAC Holding shall not be deemed to be an Affiliate of the Borrowers for purposes
of this Agreement.
"Affiliate Contracts" means any agreement to which any Note Party is a
party, on the one hand, and any Affiliate of such Note Party is a party, on the
other hand, as such agreements are in place as of the Issue Date.
"Agency Letter" means that certain letter agreement executed and
delivered by Xxxxxxx Xxxxxx, Xxxx Xxxxxx (or any other person acceptable to
Trustee from time to time having similar employee responsibilities) and Trustee,
as amended, modified or replaced from time to time, the form and substance of
which are reasonably satisfactory to Trustee.
"Agent" means any Registrar or Paying Agent.
"Agreement" means this Indenture, as amended or supplemented from time
to time.
"amend" means to amend, supplement, restate, amend and restate or
otherwise modify; and "amendment" shall have a correlative meaning.
"Anti-Terrorism Laws" shall mean any laws relating to terrorism or
money laundering, including Executive Order No. 13224 and the USA Patriot Act.
"Applicable Laws" means with respect to any Person, those laws, rules,
regulations, statutes and ordinances that apply to that Person or its business,
undertakings, property or securities.
"Applicable Procedures" means, with respect to any transfer or exchange
of or for beneficial interests in any Global Note, the rules and procedures of
the Depositary that apply to such transfer or exchange.
"AREC" means Amerco Real Estate Company, a Nevada corporation.
"Asset" means any asset or property.
"Availability" means, as of any date of determination, if such date is
a Business Day, and determined at the close of business on the immediately
preceding Business Day, if such date of determination is not a Business Day, the
amount that the Borrowers are entitled to borrow as Advances (as defined in the
New Credit Agreement) under Section 2.1 of the New Credit Agreement (after
giving effect to all then outstanding Obligations (as defined in the New Credit
Agreement) (other than Bank Product Obligations, as defined in the New Credit
Agreement) and all sublimits and reserves applicable under the New Credit
Agreement).
"Bank Lenders" means the "Lenders" as defined in the New Credit
Agreement.
"Bank Lenders' Agent" means Xxxxx Fargo Foothill, Inc., a California
corporation, solely in its capacity as administrative agent and collateral agent
for the Bank Lenders under the New Credit Agreement, and any successor thereto.
"Bank Lenders' Collateral Agent" means the Bank Lenders' Agent, in its
capacity as collateral agent for the benefit of the Bank Lenders under the
Intercreditor Agreement, or any successor thereto.
"Bankruptcy Code" means Title 11 of the United States Code; provided
that when the context so requires with respect to the Canadian Subsidiaries,
"Bankruptcy Code" shall mean the Bankruptcy and Insolvency Act (Canada) or the
Companies' Creditors Arrangement Act (Canada), in any case, as in effect from
time to time.
"Bankruptcy Law" means the Bankruptcy Code or any similar federal,
provincial, or state law for the relief of debtors.
"Benefit Plan" means a "defined benefit plan" (as defined in Section
3(35) of ERISA) for which any Borrower or any Subsidiary or ERISA Affiliate of
any Note Party has been an "employer" (as defined in Section 3(5) of ERISA)
within the past 6 years.
2
"Blocked Person" means:
(a) a Person that is listed in the annex to, or is
otherwise subject to the provisions of, Executive Order No. 13224;
(b) a Person owned or controlled by, or acting for or on
behalf of, any Person that is listed in the annex to, or is otherwise
subject to the provisions of, Executive Order No. 13224;
(c) a Person or entity with which any bank or other
financial institution is prohibited from dealing or otherwise engaging
in any transaction by any Anti-Terrorism Law;
(d) a Person or entity that commits, threatens or
conspires to commit or supports "terrorism" as defined in Executive
Order No. 13224;
(e) a Person or entity that is named as a "specially
designated national" on the most current list published by OFAC at its
official website or any replacement website or other replacement
official publication of such list; or
(f) a Person or entity who is affiliated with a Person or
entity listed above.
"Board of Directors" means the board of directors (or comparable
managers) of the Company or any committee thereof duly authorized to act on
behalf thereof.
"Books" means any Person's now owned or hereafter acquired books and
records (including all of its Records indicating, summarizing, or evidencing its
assets (including the Collateral) or liabilities, all of any Person's Records
relating to its or their business operations or financial condition, and all of
its goods or General Intangibles related to such information).
"Borrowers" means the Company, AMERCO Real Estate Company, a Nevada
corporation, AMERCO Real Estate Company of Alabama, Inc., an Alabama
corporation, AMERCO Real Estate Company of Texas, Inc., a Texas corporation,
Five PAC Company, a Nevada corporation, Fourteen PAC Company, a Nevada
corporation, One PAC Company, a Nevada corporation, Seven PAC Company, a Nevada
corporation, Sixteen PAC Company, a Nevada corporation, Ten PAC Company, a
Nevada corporation, U-Haul Co. of Alaska, an Alaska corporation, U-Haul Co. of
Arizona, and Arizona corporation, U-Haul Co. of Florida, a Florida corporation,
U-Haul of Hawaii, Inc., a Hawaii corporation, U-Haul International, Inc., a
Nevada corporation, and Yonkers Property Corporation, a New York corporation.
(Such Borrowers are referred to hereinafter each individually as a "Borrower".)
"Business Day" means a day other than a Saturday, Sunday or other day
on which banking institutions in New York, New York are authorized or required
by law to close.
"Canadian Income Tax Act" means the Income Tax Act (Canada), R.S.C.
1985 C.1 (5th Supp.), as amended from time to time.
3
"Canadian Subsidiaries" means, collectively, U-Haul (Canada) and U-Haul
Inspections Ltd., a British Columbia corporation.
"Capital Expenditures" means, with respect to any Person for any
period, gross expenditures that are capital expenditures as determined in
accordance with GAAP for such period, whether such expenditures are paid in cash
or financed; minus lease funding received pursuant to operating and Capital
Lease commitments for such period; minus Net Dispositions for such period.
"Capital Lease" means a lease that is required to be capitalized for
financial reporting purposes in accordance with GAAP.
"Capitalized Lease Obligation" means that portion of the obligations
under a Capital Lease that is required to be capitalized in accordance with
GAAP.
"Cash Equivalents" means (a) marketable direct obligations issued or
unconditionally guaranteed by the United States or issued by any agency thereof
and backed by the full faith and credit of the United States, in each case
maturing within 1 year from the date of acquisition thereof, (b) marketable
direct obligations issued by any state of the United States or any political
subdivision of any such state or any public instrumentality thereof maturing
within 1 year from the date of acquisition thereof and, at the time of
acquisition, having one of the two highest ratings obtainable from either
Standard & Poor's Rating Group ("S&P") or Xxxxx'x Investors Service, Inc.
("Moody's"), (c) commercial paper maturing no more than 270 days from the date
of creation thereof and, at the time of acquisition, having a rating of at least
A-1 from S&P or at least P-1 from Moody's, (d) certificates of deposit or
bankers' acceptances maturing within 1 year from the date of acquisition thereof
issued by any bank organized under the laws of the United States or any state
thereof having at the date of acquisition thereof combined capital and surplus
of not less than $250,000,000, (e) demand Deposit Accounts maintained with any
bank organized under the laws of the United States or any state thereof so long
as the amount maintained with any individual bank is less than or equal to
$100,000 and is insured by the Federal Deposit Insurance Corporation, and (f)
Investments in money market funds substantially all of whose assets are invested
in the types of assets described in clauses (a) through (e) above.
"Certificate(s) of Title" means a certificate evidencing the title to a
Vehicle.
"Change of Control" means (a) any "person" or "group" (within the
meaning of Sections 13(d) and 14(d) of the Exchange Act), other than Permitted
Holders, becomes the beneficial owner (as defined in Rules 13d-3 and 13d-5 under
the Exchange Act), directly or indirectly, of 30%, or more, of the Stock of the
Company having the right to vote for the election of members of the Board of
Directors, (b) a majority of the members of the Board of Directors do not
constitute Continuing Directors, (c) any Borrower ceases to own, directly or
indirectly, and control 100% of the outstanding capital Stock of any of its
Subsidiaries extant as of the Issue Date unless the disposition, liquidation or
merger of such Subsidiary was permitted by Section 5.03 hereof, (d) (i) all or
substantially all of the assets of the Company and its Restricted Subsidiaries
(as defined in the New AMERCO Notes Indenture) are sold or otherwise transferred
to any Person other than a Wholly-Owned Restricted Subsidiary (as defined in the
New AMERCO Notes Indenture) that is a Note Party or (ii) the Company
consolidates or merges with
4
or into another Person or any Person consolidates or merges with or into the
Company, in either case under this clause (d), in one transaction or a series of
related transactions in which immediately after the consummation thereof Persons
owning voting stock representing in the aggregate a majority of the total voting
power of the voting stock of the Company immediately prior to such consummation
do not own voting stock representing a majority of the total voting power of the
voting stock of the Company or the surviving or transferee Person, or (e) the
Company shall adopt a plan of liquidation or plan of dissolution or any such
plan shall be approved by the stockholders of the Company.
"Chapter 11 Case" means Case NO. BK-03-52103-GWZ in the United States
Bankruptcy Court for the District of Nevada.
"Chattel Paper" means any Person's now owned or hereafter acquired
right, title and interest in respect of "chattel paper" as such term is defined
in the Code, including, without limitation, any tangible or electronic chattel
paper.
"Class A Definitive Note" means one or more Definitive Notes that do
not bear and are not required to bear the Private Placement Legend substantially
in the form of Exhibit A.
"Class A Global Note" means a permanent global Note substantially in
the form of Exhibit A attached hereto that bears the Global Note Legend and that
has the "Schedule of Exchanges of Interests in the Global Note" attached
thereto, and that is deposited with or on behalf of and registered in the name
of the Depositary, representing a series of Notes that do not bear the Private
Placement Legend.
"Class A Notes" means the $120.0 million of 9.0% Second Lien Senior
Secured Notes due 2009 to be issued on the Issue Date in accordance with this
Agreement and pursuant to Section 1145 of the Bankruptcy Code, and any
additional Class A Notes issued in the Exchange Offer pursuant to Section
2.06(f) hereof.
"Class B Definitive Note" means a Definitive Note bearing the Private
Placement Legend substantially in the form of Exhibit B.
"Class B Global Note" means a global Note substantially in the form of
Exhibit B attached hereto that bears the Private Placement Legend and that has
the "Schedule of Exchanges of Interests in the Global Note" attached thereto,
and that is deposited with or on behalf of and registered in the name of
Depository, representing the series of Class B Notes.
"Class B Notes" means the $80.0 million of 9.0% Second Lien Senior
Secured Notes due 2009 to be issued on the Issue Date in accordance with this
Agreement and pursuant to Regulation D of the Securities Act.
"Class B Purchase Agreement" means the Note Purchase Agreement, dated
as of March __, 2004, by and among the Company, the Guarantors and the
purchasers of the Class B Notes, as such agreement may be amended, modified or
supplemented from time to time.
"Code" means the New York Uniform Commercial Code, as in effect from
time to time.
5
"Co-Collateral Trustee" means a Person acting jointly with the
Collateral Trustee as collateral agent under this Agreement, the Intercreditor
Agreement and the Security Documents.
"Collateral" means all of each Note Party's now owned or hereafter
acquired right, title, and interest in and to each of the following:
(a) Accounts,
(b) Books,
(c) Chattel Paper,
(d) Commercial Tort Claims,
(e) Deposit Accounts,
(f) Equipment,
(g) General Intangibles,
(h) Inventory,
(i) Investment Property,
(j) Negotiable Collateral,
(k) Real Property Collateral,
(l) Supporting Obligations,
(m) money, cash, Cash Equivalents, or other assets of
each such Note Party that now or hereafter come into the possession, custody, or
control of any Bank Lender, the Bank Lenders' Agent, the Trustee or any Holder
and are held for the benefit of the Holders,
(n) the proceeds and products, whether tangible or
intangible, of any of the foregoing, including proceeds of insurance covering
any or all of the foregoing, and any and all Accounts, Books, Chattel Paper,
Deposit Accounts, Equipment, General Intangibles, Inventory, Investment
Property, Negotiable Collateral, Real Property, Supporting Obligations, money,
deposit accounts, or other tangible or intangible property resulting from the
sale, exchange, collection, or other disposition of any of the foregoing, or any
portion thereof or interest therein, and the proceeds thereof, and
(o) to the extent not included in the foregoing, all
other personal property of the Note Parties of any kind or description
(including, without limitation, with respect to either Canadian Guarantor, all
"personal property" (as defined in the PPSA) of such party and all "proceeds"
(as defined in the PPSA) thereof);
provided, however, that the Excluded Assets shall not be included in the
Collateral.
6
"Collateral Access Agreement" means a landlord waiver, bailee waiver,
mortgagee waiver, or acknowledgement of any lessor, warehouseman, processor,
mortgagee, assignee, or other Person in possession of, having a Lien upon, or
having rights or interests in the Equipment or Inventory, in each case in the
same form and substance as delivered to the Bank Lenders' Agent under the New
Credit Agreement, with such modifications as are necessary to reflect that the
Trustee's Liens in the Collateral are security interests, second in priority
only to the first priority security interests granted to Bank Lenders' Agent
pursuant to the New Credit Agreement.
"Collateral Trustee" means Xxxxx Fargo Bank, N.A., a national banking
association, in its capacity as collateral agent under this Agreement, the
Intercreditor Agreement and the Security Documents for the benefit of the
Holders, or any successor thereto.
"Collections" means all cash, checks, notes, instruments, and other
items of payment (including insurance proceeds, proceeds of cash sales, rental
proceeds, and tax refunds) of the Borrowers.
"Commercial Tort Claims" means any Person's now owned or hereafter
acquired right, title and interest with respect to any "commercial tort claim"
as such term is defined in the Code, including, without limitation, the PWC
Litigation.
"Company" means AMERCO, a Nevada corporation, and any and all
successors thereto and not any of its Subsidiaries.
"Confirmation Order" means the order entered in the Chapter 11 Case on
February 20, 2004, confirming the Reorganization Plan.
"Consolidated" means, with respect to the Company, the consolidation of
the income statement accounts of the Company's Subsidiaries with those of the
Company, all in accordance with GAAP, provided, that "consolidated" will not
include (a) the consolidation of the accounts of SAC Holding with the accounts
of the Company but for the inclusion of interest income earned on the Junior
Notes and management fees earned by U-Haul related to properties it manages that
are owned by SAC Holding; and (b) the consolidation of the accounts of the
Insurance Subsidiaries with the accounts of the Company but for the inclusion of
pre-tax net income earned by (or losses of) the Insurance Subsidiaries.
"Consolidated Cash Interest Expense" means, for any period, the
Consolidated Interest Expense of the Company paid in cash for such period
(including, without limitation, the Unused Line Fees (as defined in the New
Credit Agreement), the interest component of any deferred payment obligations,
the interest component of all payments associated with Capitalized Lease
Obligations, commissions, discounts and other fees and charges incurred in
respect of a Letter of Credit (as defined in the New Credit Agreement) or
bankers' acceptance financing and net payments pursuant to Hedge Agreements),
provided that Consolidated Cash Interest Expense shall exclude interest expense
accrued or capitalized during such period.
"Consolidated Charges" means, for any period, any extraordinary and/or
non-recurring Consolidated charges of the Company, representing restructuring
charges, payments to restructuring financial advisors and legal counsel,
non-cash impairment of asset charges and other non-cash write-offs that were
deducted in arriving at Consolidated Net Income; provided,
7
however, (a) the aggregate amount of Consolidated Charges calculated for the
3-month period ending March 31, 2004 shall not exceed $75,000,000, (b) the
aggregate amount of Consolidated Charges calculated for the 3-month period
ending June 30, 2004 shall not exceed $3,800,000, (c) the aggregate amount of
Consolidated Charges calculated for the 6-month period ending September 30, 2004
shall not exceed $7,500,000, (d) the aggregate amount of Consolidated Charges
calculated for the 9-month period ending December 31, 2004 shall not exceed
$11,300,000, and (e) the aggregate amount of Consolidated Charges calculated for
the 12-month period ending March 31, 2005 and as of the end of each fiscal
quarter thereafter shall not exceed $15,000,000.
"Consolidated EBITDA" means, for any period, the sum, without
duplication, of (i) Consolidated Net Income for such period; plus (ii)
Consolidated Interest Expense for such period; plus (iii) provision for
Consolidated taxes of the Company based on income or profits for such period (to
the extent such income or profits were included in computing the Consolidated
Net Income for such period); plus (iv) Consolidated depreciation, amortization
and other non-cash expense of the Company; plus (v) Consolidated Charges in each
case that were deducted in determining the Consolidated Net Income for such
period; minus (vi) pre-tax net income of the Insurance Subsidiaries; plus (vii)
losses of the Insurance Subsidiaries; minus (viii) gains from sales of any Real
Property; plus (ix) losses from sales of any Real Property minus (x) to the
extent the Synthetic Leases (including any refinancings, in whole or in part
thereof), or any of them, are treated as Capital Leases in accordance with the
requirements of GAAP, the amounts of principal and interest due and paid under
such Synthetic Leases for such period, as such principal amounts are set forth
on Schedule 7.8(a) of the New Credit Agreement as of the Issue Date.
"Consolidated Interest Expense" means, for any period, the Consolidated
interest expense of the Company for such period, whether paid, accrued or
capitalized (including, without limitation, amortization of original issue
discount, non-cash interest payments, the Unused Line Fees (as defined in the
New Credit Agreement), the interest component of any deferred payment
obligations, the interest component of all payments associated with Capitalized
Lease Obligations, commissions, discounts and other fees and charges incurred in
respect of a Letter of Credit (as defined in the New Credit Agreement) or
bankers' acceptance financing and net payments pursuant to Hedge Agreements).
"Consolidated Net Income" means, for any period, the net income of the
Company for such period, determined in accordance with GAAP, provided that such
net income is calculated pursuant to the income statement presentation set forth
in the definition of "Consolidated".
"Continuing Director" means (a) any member of the Board of Directors
who was a director (or comparable manager) of the Company on the Issue Date, and
(b) any individual who becomes a member of the Board of Directors after the
Issue Date if such individual was appointed or nominated for election to the
Board of Directors by a majority of the Continuing Directors, but excluding any
such individual originally proposed for election in opposition to the Board of
Directors in office at the Issue Date in an actual or threatened election
contest relating to the election of the directors (or comparable managers) of
the Company (as such terms are used in Rule 14a-11 under the Exchange Act) and
whose initial assumption of office resulted from such contest or the settlement
thereof.
8
"Control Agreement" means a control agreement executed and delivered by
the Company or one of its Subsidiaries, the Trustee, and the applicable
securities intermediary with respect to a Securities Account or a bank with
respect to a Deposit Account, in the same form and substance delivered to the
Bank Lenders' Agent under the New Credit Agreement, with such modifications as
are necessary to reflect that the Trustee's Liens in the Collateral subject
thereto are security interests, second in priority only to the first priority
security interests granted to Bank Lenders' Agent pursuant to the New Credit
Agreement.
"Corporate Trust Office of the Trustee" shall be at the address of the
Trustee specified in Section 13.02 hereof or such other address as to which the
Trustee may give notice to the Company.
"Copyright Security Agreement" means that certain copyright security
agreement executed and delivered by each of the Note Parties that own copyrights
as of the Issue Date and the Trustee, in the same form and substance as
delivered to the Bank Lenders' Agent under the New Credit Agreement, with such
modifications as are necessary to reflect that the Trustee's Liens in the
Collateral subject thereto are security interests, second in priority only to
the first priority security interests granted to Bank Lenders' Agent pursuant to
the New Credit Agreement.
"Custodian" means any receiver, trustee, assignee, liquidator or
similar official under any Bankruptcy Law.
"DDA" means any checking or other demand deposit account maintained by
any Borrower.
"Dealer List" means, at any date, a report of the name and location of
all U-Haul Dealers as of such date.
"Dealership Contract" means a U-Haul dealership contract between a
subsidiary of U-Haul, on the one hand, and a U-Haul Dealer, on the other hand.
"Default" means any event, condition, or default that, with the giving
of notice, the passage of time or both, would be an Event of Default.
"Definitive Note" means a certificated Note registered in the name of
the Holder thereof and issued in accordance with Section 2.06 hereof,
substantially in the form of Exhibit A or Exhibit B hereto, as applicable,
except that such Note shall not bear the Global Note Legend and shall not have
the "Schedule of Exchanges of Interests in the Global Note" attached thereto.
"Deposit Accounts" means any Person's now owned or hereafter acquired
right, title and interest with respect to any "deposit account" as such term is
defined in the Code, including, without limitation, any DDAs.
"Depositary" means, with respect to the Notes issuable or issued in
whole or in part in global form, the Person specified in Section 2.03 hereof as
the Depositary with respect to the Notes, and any and all successors thereto
appointed as depositary hereunder and having become such pursuant to the
applicable provision of this Agreement.
9
"Depositary Custodian" means the Trustee, as custodian for the
Depositary with respect to the Notes in global form, or any successor entity
thereto.
"DIP Loan Agreement" means that certain Senior Secured, Super-Priority
Debtor-in-Possession Loan and Security Agreement, dated as of August 15, 2003,
among the Company, AREC, Xxxxx Fargo Foothill, Inc., as agent, and the various
lenders party thereto, as amended by that certain First Amendment to Loan and
Security Agreement dated as of September 23, 2003.
"DIP Obligations" means, as of any date of determination, all
Obligations (as defined in the DIP Loan Agreement) outstanding under the DIP
Loan Agreement, including any Advances (as defined in the DIP Loan Agreement)
outstanding (including, without limitation, the face amount of any outstanding
Letter of Credit issued pursuant to the DIP Loan Agreement), the Term Loan (as
defined in the DIP Loan Agreement) and accrued interest, fees and other charges
payable thereunder.
"Dollars" or "$" means United States dollars.
"Dormant Subsidiaries" means, collectively, EJOS, Inc., an Arizona
corporation, Japal, Inc., a Nevada corporation, M.V.S., Inc., a Nevada
corporation, Pafran, Inc., a Nevada corporation, Sophmar, Inc., a Nevada
corporation, and Picacho Peak Investments Co, a Nevada corporation.
"ECF Carry Forward Amount" means, at any time of determination, (a)(i)
as of the Issue Date through September 30, 2004, $3,335,000, (ii) as of October
1, 2004 through March 30, 2005, 50% of Borrowers' Excess Cash Flow (whether
positive or negative) for the period commencing on the Issue Date and ending on
September 30, 2004, based on unaudited financial statements provided to the
Trustee pursuant to Section 4.04(a), or (iii) as of March 31, 2005 and at all
times thereafter, 50% of Borrowers' Excess Cash Flow for the fiscal year ending
March 31, 2005 (whether positive or negative), based on the audited financial
statements provided to the Trustee pursuant to Section 4.04(b), plus Borrowers'
Excess Cash Flow for each fiscal year thereafter (to the extent positive) for
which audited financial statements have been provided to the Trustee pursuant to
Section 4.04(b), minus (b) the sum of (i) the aggregate amount of dividends paid
in arrears on account of the preferred stock of the Company on or after January
1, 2004 made from Borrowers' Excess Cash Flow pursuant to clause (c) of Section
5.11, and (ii) the aggregate amount of prepayments of the principal amount of
the Indebtedness under the New AMERCO Notes and the Notes made from Borrowers'
Excess Cash Flow after the Issue Date pursuant to clause (2) of Section
5.08(a)(v), in each case on a cumulative basis.
"Effective Date" shall have the meaning set forth in the Reorganization
Plan.
"Environmental Actions" means any complaint, summons, citation, notice,
directive, order, claim, litigation, investigation, judicial or administrative
proceeding, judgment, letter, or other communication from any Governmental
Authority, or any third party involving violations of Environmental Laws or
releases of Hazardous Materials from (a) any assets, properties, or businesses
of any Borrower or any predecessor in interest, (b) from adjoining properties or
businesses, or (c) from or onto any facilities which received Hazardous
Materials generated by any Borrower or any predecessor in interest.
10
"Environmental Indemnity Agreements" means, collectively, those certain
environmental indemnity agreements executed and delivered by Note Parties in
favor of the Trustee, in the same form and substance as delivered to Bank
Lenders' Agent under the New Credit Agreement.
"Environmental Law" means any applicable federal, state, provincial,
foreign or local statute, law, rule, regulation, ordinance, code, binding and
enforceable guideline, binding and enforceable written policy, or rule of common
law now or hereafter in effect and in each case as amended, or any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment, to the extent binding on Borrowers, relating
to the environment, employee health and safety, or Hazardous Materials,
including CERCLA; RCRA; the Federal Water Pollution Control Act, 33 U.S.C.
Section 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. Section 2601
et seq.; the Clean Air Act, 42 U.S.C. Section 7401 et seq.; the Safe Drinking
Water Act, 42 U.S.C. Section 3803 et seq.; the Oil Pollution Act of 1990, 33
U.S.C. Section 2701 et seq.; the Emergency Planning and the Community
Right-to-Know Act of 1986, 42 U.S.C. Section 11001 et seq.; the Hazardous
Material Transportation Act, 49 U.S.C. Section 1801 et seq.; and the
Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq. (to the extent
it regulates occupational exposure to Hazardous Materials); any state and local
or foreign counterparts or equivalents, in each case as amended from time to
time.
"Environmental Liabilities and Costs" means all liabilities, monetary
obligations, Remedial Actions, losses, damages, punitive damages, consequential
damages, treble damages, costs and expenses (including all reasonable fees,
disbursements and expenses of counsel, experts, or consultants and costs of
investigation and feasibility studies), fines, penalties, sanctions, and
interest incurred as a result of any claim or demand by any Governmental
Authority or any third party, and which relate to an Environmental Action.
"Environmental Lien" means any Lien in favor of any Governmental
Authority for Environmental Liabilities and Costs.
"Equipment" means any Person's now owned or hereafter acquired right,
title, and interest with respect to equipment, machinery, machine tools, motors,
furniture, furnishings, fixtures, Vehicles, tools, parts, goods (other than
consumer goods, farm products, or Inventory), wherever located, including all
attachments, accessories, accessions, replacements, substitutions, additions,
and improvements to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and any successor statute thereto.
"ERISA Affiliate" means (a) any Person subject to ERISA whose employees
are treated as employed by the same employer as the employees of a Borrower or a
Subsidiary of a Borrower under IRC Section 414(b), (b) any trade or business
subject to ERISA whose employees are treated as employed by the same employer as
the employees of a Borrower or a Subsidiary of Borrower under IRC Section
414(c), (c) solely for purposes of Section 302 of ERISA and Section 412 of the
IRC, any organization subject to ERISA that is a member of an affiliated service
group of which a Borrower or a Subsidiary of Borrower is a member under IRC
Section 414(m), or (d) solely for purposes of Section 302 of ERISA and Section
412 of the IRC, any Person subject to ERISA that is a party to an arrangement
with a Borrower or a Subsidiary of a
11
Borrower and whose employees are aggregated with the employees of a Borrower or
a Subsidiary of a Borrower under IRC Section 414(o).
"Event of Default" has the meaning set forth in Section 6.01.
"Excess Availability" means the amount, as of the date any
determination thereof is to be made, equal to the difference between (a) the
lesser of (i) the Borrowing Base (as defined in the New Credit Agreement) or
(ii) the sum of (1) the Maximum Revolver Amount (as defined in the New Credit
Agreement) plus (2) the Term Loan Amount (as defined in the New Credit
Agreement), and (b) the Obligations (as defined in the New Credit Agreement)
then outstanding.
"Excess Availability Test" means, at the time of payment of any
Indebtedness under the New AMERCO Notes or Notes pursuant to Section
5.8(a)(v)(ii) or at the time of declaration or payment of any dividend or
dividend in arrears pursuant to Section 5.11(b) or Section 5.11(c),
respectively, (a) Borrowers' Excess Availability plus Qualified Cash (as
reported to the Bank Lenders' Agent by Borrowers pursuant to Section 6.2(a) of
the New Credit Agreement), exceeds (i) $35,000,000 plus (ii) the amount of such
dividend or debt payment as of the date of such payment and as of the month end
for each of the preceding consecutive 12 fiscal months immediately preceding
such payment date, and (b) after giving effect to such payment, Borrowers'
Excess Availability plus Qualified Cash, as reflected in the Projections (as
defined in the New Credit Agreement) most recently delivered to Bank Lenders'
Agent pursuant to Section 6.3(c) of the New Credit Agreement, is projected to
exceed $35,000,000 for the month end of each of the 12 fiscal months immediately
succeeding such payment date.
"Excess Cash Flow" means, for the fiscal year most recently ended prior
to any determination date and based upon the audited financial statements
delivered by Borrowers pursuant to Section 4.04(b), (a) Consolidated EBITDA,
minus (b) the sum of (i) Consolidated Cash Interest Expense, plus (ii) Capital
Expenditures permitted hereunder, plus (iii) payments of the principal amount of
Funded Debt (other than advances made under the revolving credit facility
contained in the New Credit Agreement and advances and prepayments of the Notes
and the New AMERCO Notes paid from the Borrowers' Excess Cash Flow pursuant to
clause (2) of Section 5.08(a)(vi) hereof) paid during such period and other
permitted debt service payments made, plus (v) federal, state and local income
taxes paid in cash, minus (c) the aggregate amount of dividends paid on account
of the Stock of the Company during such fiscal year pursuant to clause (b) of
Section 5.11.
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended from time to time.
"Exchange Notes" means the Class A Notes issued in the Exchange Offer
pursuant to Section 2.06(f) hereof.
"Exchange Offer" has the meaning set forth in the Registration Rights
Agreement.
"Exchange Offer Registration Statement" has the meaning set forth in
the Registration Rights Agreement.
12
"Excluded Assets" means (a) Real Property subject to the Synthetic
Leases and the proceeds received from the monetization of such Real Property,
(b) the Junior Notes and proceeds received from the monetization of Junior
Notes, (c) all Real Property set forth on Schedule E-1 of the New Credit
Agreement under contract of sale as of the Issue Date and proceeds received from
any such sale, (d) all Real Property subject to a first priority Lien of Oxford
as of the Issue Date, as set forth on Schedule E-1 of the New Credit Agreement,
(e) all Real Property designated as "Surplus Real Property" as of the Issue
Date, as set forth on Schedule E-1 of the New Credit Agreement and any proceeds
received from any sale of such Real Property, (f) the Company's Stock of the
Insurance Subsidiaries and the proceeds received from the monetization of such
Stock, (g) proceeds in excess of $50,000,000 from any settlement, judgment or
other recovery from the PWC Litigation, (h) Vehicles (including any tow dolly or
auto transport) that, as of the Issue Date are or thereafter become, and remain
subject to, a TRAC Lease Transaction, and proceeds from the sale of such
Vehicles to the extent no Note Party has any rights to or interest in such
proceeds, except to the extent such Vehicles become subject to the Trustee's
Liens pursuant to Section 5.04 hereof, (i) Vehicles (including any tow dolly or
auto transport) that become and remain subject to the PMCC Leveraged Lease and
proceeds from the sale of such Vehicles to the extent no Note Party has any
rights to or interest in such proceeds, and (j) the cash collateral accounts set
forth on Schedule 2.7(e) to the New Credit Agreement.
"Executive Order No. 13224" shall mean Executive Order No. 13224 on
Terrorist Financing, effective September 24, 2001, as the same has been, or
shall hereafter be, renewed, extended, amended or replaced.
"Fair Market Valuation" means the most recent fair market valuation
acceptable to the Bank Lenders by a third party appraiser acceptable to the Bank
Lenders of the Real Property Collateral which is subject to a valid and
perfected Trustee's Lien (second only to the first priority security interests
granted to Bank Lenders' Agent pursuant to the New Credit Agreement), subject
only to Permitted Liens of the type described in clauses (a), (b), (c), (f),
(j), (k), (l) and (n) of the definition thereof.
"Family Member" means, with respect to any individual, spouse and
lineal descendants (including children and grandchildren by adoption) of such
individual, the spouses or each such lineal descendants, and the lineal
descendants of such Persons.
"Family Trusts" means, with respect to any individual, any trusts,
limited partnerships or other entities established for the primary benefit of
the executor or administrator of the estate of, or other legal representative
of, such individual.
"FEIN" means Federal Employer Identification Number.
"Funded Debt" means without double-counting, with respect to the
Company on a Consolidated basis, as of any date of determination, all
obligations of the type described in clauses (a) through (c) and clause (e) of
the definition of "Indebtedness" and clause (f) of such definition with respect
to any guaranty of any of the foregoing, and specifically including, without
limitation, the amount of outstanding Obligations hereunder.
13
"GAAP" means generally accepted accounting principles as in effect from
time to time in the United States, consistently applied.
"General Intangibles" means any Person's now owned or hereafter
acquired right, title, and interest with respect to general intangibles (as that
term is defined in the Code), including payment intangibles, contract rights,
rights to payment, rights arising under common law, statutes, or regulations,
choses or things in action, goodwill, patents, trade names, trademarks,
servicemarks, copyrights, blueprints, drawings, purchase orders, customer lists,
monies due or recoverable from pension funds, route lists, rights to payment and
other rights under any royalty or licensing agreements, infringement claims,
computer programs, information contained on computer disks or tapes, software,
literature, reports, catalogs, pension plan refunds, pension plan refund claims,
insurance premium rebates, tax refunds, and tax refund claims, and any and all
Supporting Obligations in respect thereof, and any other personal property other
than goods, money, Accounts, Chattel Paper, Commercial Tort Claims, Deposit
Accounts, Investment Property, and Negotiable Collateral.
"Global Note Legend" means the legend set forth in Section 2.06(g),
which is required to be placed on all Global Notes issued under this Agreement.
"Global Notes" means, individually and collectively, each of the Class
A Global Notes and Class B Global Notes, substantially in the form of Exhibit A
and Exhibit B hereto, respectively, issued in accordance with Section 2.01,
2.02, 2.06, 2.07 and 2.10 hereof.
"Governing Documents" means, with respect to any Person, the
certificate or articles of incorporation, bylaws, or other organizational
documents of such Person.
"Governmental Authority" means any federal (including the federal
government of Canada), state, provincial, local or other governmental or
administrative body, instrumentality, department, or agency, or any court,
tribunal, administrative hearing body, arbitration panel, commission or other
similar dispute-resolving panel or body.
"Guarantee" means a direct or indirect guarantee by any Person of any
Indebtedness of any other Person and includes any obligation, direct or
indirect, contingent or otherwise, of such Person: (1) to purchase or pay (or
advance or supply funds for the purchase or payment of) Indebtedness of such
other Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services
(unless such purchase arrangements are on arm's-length terms and are entered
into in the ordinary course of business), to take-or-pay, or to maintain
financial statement conditions or otherwise); or (2) entered into for purposes
of assuring in any other manner the obligee of such Indebtedness of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part). The terms "guarantee," when used as a verb, and "guaranteed" have
correlative meanings.
"Guarantor" and "Guarantors" means all direct and indirect Subsidiaries
of the Company, except for the Insurance Subsidiaries, any Subsidiary formed
under the laws of a jurisdiction outside of the United States and Canada,
Storage Realty, L.L.C., a Texas limited liability company, INW, and the Dormant
Subsidiaries. For the avoidance of doubt, SAC
14
Holding shall not be a Guarantor under this Agreement. As of the Issue Date, all
Guarantors are listed on the signature page of this Agreement.
"Guarantor Security Agreement" means, collectively, one or more
security agreements, hypothecations or other similar agreements executed and
delivered by Guarantors and the Trustee, in the same form and substance
delivered by the Guarantors to the Bank Lenders' Agent under the New Credit
Agreement, with such modifications as are necessary to reflect the fact that the
Trustee's Liens in the Collateral subject thereto are security interests, second
in priority only to the first priority security interests granted to Bank
Lenders' Agent pursuant to the New Credit Agreement.
"Guaranty Agreement" means the Guaranty executed and delivered by
Guarantors and the Trustee, in the same form and substance delivered by the
Guarantors to the Bank Lenders' Agent under the New Credit Agreement, with such
modifications as are necessary to reflect that the Trustee's security interests
are second in priority to the first priority security interests granted to Bank
Lenders' Agent pursuant to the New Credit Agreement.
"Hazardous Materials" means (a) substances that are defined or listed
in, or otherwise classified pursuant to, any Applicable Laws or regulations as
"hazardous substances," "hazardous materials," "hazardous wastes," "toxic
substances," or any other formulation intended to define, list, or classify
substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, reproductive toxicity, or "EP
toxicity", (b) oil, petroleum, or petroleum derived substances, natural gas,
natural gas liquids, synthetic gas, drilling fluids, produced waters, and other
wastes associated with the exploration, development, or production of crude oil,
natural gas, or geothermal resources, (c) any flammable substances or explosives
or any radioactive materials, and (d) asbestos in any form or electrical
equipment that contains any oil or dielectric fluid containing levels of
polychlorinated biphenyls in excess of 50 parts per million.
"Hedge Agreement" means any and all agreements or documents now
existing or hereafter entered into by the Company or its Subsidiaries that
provide for an interest rate, credit, commodity or equity swap, cap, floor,
collar, forward foreign exchange transaction, currency swap, cross currency rate
swap, currency option, or any combination of, or option with respect to, these
or similar transactions, for the purpose of hedging the Company's or its
Subsidiaries' exposure to fluctuations in interest or exchange rates, loan,
credit exchange, security or currency valuations or commodity prices.
"Holder" means any registered holder, from time to time, of the Notes.
"Indebtedness" means (a) all obligations for borrowed money, (b) all
obligations evidenced by bonds, debentures, notes, or other similar instruments
and all reimbursement or other obligations in respect of letters of credit,
bankers acceptances, interest rate swaps, or other financial products, (c) all
obligations as a lessee under Capital Leases, (d) all obligations or liabilities
of others secured by a Lien on any asset of a Person or its Subsidiaries,
irrespective of whether such obligation or liability is assumed, (e) all
obligations to pay the deferred purchase price of assets (other than trade
payables incurred in the ordinary course of business and repayable in accordance
with customary trade practices), and (f) any obligation guaranteeing or
15
intended to guarantee (whether directly or indirectly guaranteed, endorsed,
co-made, discounted, or sold with recourse) any obligation of any other Person
that constitutes Indebtedness under any of clauses (a) through (e) above.
"Indirect Participant" means a Person who holds a beneficial interest
in a Global Note through a Participant.
"Insolvency Proceeding" means any proceeding commenced by or against
any Person under any provision of the Bankruptcy Code or under any other state,
provincial or federal (including the federal laws of Canada) bankruptcy or
insolvency law, assignments for the benefit of creditors, formal or informal
moratoria, compositions, extensions generally with creditors, or proceedings
seeking reorganization, arrangement, or other similar relief.
"Insurance Subsidiaries" means, collectively, Oxford and RepWest.
"Intangible Assets" means, with respect to any Person, that portion of
the book value of all of such Person's assets that would be treated as
intangibles under GAAP.
"Intercreditor Agreement" means that certain Intercreditor Agreement,
as of even date herewith, between the Trustee and the Bank Lenders' Collateral
Agent, as amended, modified, supplemented, extended or restated from time to
time.
"Interest" means, with respect to all Notes, interest on the Notes, and
with respect to the Class B Notes, Additional Interest, if any, on the Class B
Notes or Exchange Notes issued in exchange therefor, as provided in the
Registration Rights Agreement.
"Inventory" means any Person's now owned or hereafter acquired right,
title, and interest with respect to inventory, including goods held for sale or
lease or to be furnished under a contract of service, goods that are leased by
such Person as lessor, goods that are furnished by such Person under a contract
of service, and raw materials, work in process, or materials used or consumed in
such Person's business, including, without limitation, supplies and embedded
software.
"Investment" means, with respect to any Person, any investment by such
Person in any other Person (including Affiliates) in the form of loans,
guarantees, advances, or capital contributions (excluding (a) commission,
travel, and similar advances to officers and employees of such Person made in
the ordinary course of business, and (b) bona fide Accounts arising in the
ordinary course of business consistent with past practices), purchases or other
acquisitions for consideration of Indebtedness or Stock, and any other items
that are or would be classified as investments on a balance sheet prepared in
accordance with GAAP.
"Investment Property" means any Person's now owned or hereafter
acquired right, title, and interest with respect to "investment property" as
that term is defined in the Code, and any and all Supporting Obligations in
respect thereof.
"INW" means INW Company, a Washington corporation.
"IRC" means the Internal Revenue Code of 1986, as in effect from time
to time.
16
"IRS" means the Internal Revenue Service of the United States and any
successor thereto.
"Issue Date" means the date on which the Notes are originally issued.
"Junior Notes" means those promissory notes issued by SAC Holding to
Nationwide Commercial Co., an Arizona corporation, U-Haul and Oxford prior to
the Parent Relief Date, as amended or restated after such date.
"Letter of Transmittal" means the letter of transmittal to be prepared
by the Company and sent to all Holders of the Notes for use by such Holders in
connection with the Exchange Offer.
"Lien" means any interest in an asset securing an obligation owed to,
or a claim by, any Person other than the owner of the asset, irrespective of
whether (a) such interest shall be based on the common law, statute, or
contract, (b) such interest shall be recorded or perfected, and (c) such
interest shall be contingent upon the occurrence of some future event or events
or the existence of some future circumstance or circumstances. Without limiting
the generality of the foregoing, the term "Lien" includes the lien, security
interest or hypothec arising from a mortgage, deed of trust, encumbrance,
pledge, hypothecation, assignment, deposit arrangement, security agreement,
conditional sale or trust receipt, or from a lease, consignment, or bailment for
security purposes and also including reservations, exceptions, encroachments,
easements, rights-of-way, covenants, conditions, restrictions, leases, and other
title exceptions and encumbrances affecting Real Property.
"Major Space Leases" means lease agreements pursuant to which the
proposed demised premises exceeds 5,000 square feet and the proposed term
thereof, inclusive of all extensions and renewals, exceeds 10 years.
"Management Agreements" means, collectively, those certain property
management agreements between Subsidiaries of U-Haul, on the one hand, and any
of SAC Holding or SSI, on the other hand.
"Material Adverse Change" means (a) a material adverse change in the
business, prospects, operations, results of operations, assets, liabilities or
condition (financial or otherwise) of the Borrowers and their Subsidiaries
(other than the Insurance Subsidiaries) taken as a whole, (b) a material
impairment of the ability of a Note Party to perform its obligations under the
Note Documents to which it is a party or of the ability of the Trustee or the
Holders to enforce the Obligations or realize upon the Collateral, or (c) a
material impairment of the enforceability or priority of the Trustee's Liens
with respect to the Collateral as a result of an action or failure to act on the
part of a Borrower or a Subsidiary of a Borrower (other than the Insurance
Subsidiaries). For the avoidance of doubt, changes affecting SAC Holding shall
constitute a "Material Adverse Change."
"Material Contracts" means the agreements set forth on Schedule M-1 to
the New Credit Agreement, which include each of the agreements (a) filed in
connection with any Note Party's SEC Filings and in existence as of the Issue
Date, (b) executed in connection with the Reorganization Plan, and (c) those
agreements to which any Note Party is a party and the loss or breach of which by
such Note Party would result in a Material Adverse Change, as such agreements
are in existence on the Issue Date or as amended to the extent permitted
hereunder.
17
"Mortgage Policy" means mortgagee title insurance policies (or marked
commitments to issue the same) for the Real Property Collateral issued by the
same title insurance company or companies issuing mortgagee title insurance
policies in connection with the mortgages granted pursuant to the New Credit
Agreement in amounts reasonably satisfactory to the Trustee assuring the Trustee
that the Mortgages encumbering such Real Property Collateral owned by a Note
Party are valid and enforceable mortgage Liens thereon (second only to the first
priority security interests granted to Bank Lenders' Agent pursuant to the New
Credit Agreement) free and clear of all defects and encumbrances except
Permitted Liens, and the Mortgage Policies otherwise shall be in form and
substance reasonably satisfactory to the Trustee.
"Mortgages" means, individually and collectively, one or more
mortgages, hypothecs, deeds of trust, or deeds to secure debt, executed and
delivered by a Note Party in favor of the Trustee, for the benefit of the
Holders, in similar form and substance to those delivered to the Bank Lenders'
Agent or the Fonde de pouvoir under the New Credit Agreement, with such
modifications as necessary to reflect the fact that the Trustee's rights in the
Collateral subject thereto are Liens (second only to the first priority security
interests granted to Bank Lenders' Agent pursuant to the New Credit Agreement)
that encumber the Real Property Collateral and the related improvements thereto.
"Multiemployer Plan" means a "multiemployer plan" (as defined in
Section 4001(a)(3) of ERISA) to which the Company, any of its Subsidiaries, or
any ERISA Affiliate has contributed, or was obligated to contribute, within the
past six (6) years.
"Negotiable Collateral" means any Person's now owned and hereafter
acquired right, title, and interest with respect to letters of credit, letter of
credit rights, instruments, promissory notes, drafts, and documents, and any and
all Supporting Obligations in respect thereof.
"Net Disposition" means the aggregate amount of Net Proceeds received
by a Note Party from the disposition of any Equipment that is a capital asset
and any Real Property that constitutes an Excluded Asset during any period.
"Net Proceeds" means, with respect to any asset disposition by the
Company or any Subsidiary of the Company or any proceeds from casualty insurance
received by the Company or any Subsidiary, the aggregate amount of cash or Cash
Equivalents received for such assets, net of (a) reasonable and customary
transaction costs and expenses, (b) transfer taxes (including sales and use
taxes), (c) amounts payable to holders of applicable Permitted Liens hereunder
to the extent that such Permitted Liens, if any, are senior in priority to the
Trustee's Liens, (d) an appropriate reserve for income taxes in accordance with
GAAP, and (e) appropriate amounts to be provided as a reserve against
liabilities or otherwise held in escrow in association with any such
disposition, in each case clauses (a) through (e) to the extent the amounts so
deducted are properly attributable to such transaction and payable (or reserved)
by the Company or any Subsidiary of the Company in connection with such
disposition or loss, including without limitation reasonable and customary
commissions and underwriting discounts, to a Person that is not an Affiliate of
the Company or such Subsidiary.
18
"New AMERCO Note Documents" means, collectively, the New AMERCO Note
Indenture, the New AMERCO Notes and such other documents executed by the Company
in connection therewith.
"New AMERCO Note Indenture" means the Indenture with respect to the
issuance of New AMERCO Notes, dated March __, 2004, among the Company, the
guarantors listed on the signature pages thereto, and The Bank of New York, as
trustee, governing the New AMERCO Notes.
"New AMERCO Note Lenders" means those Persons that are "Holders" under
the New AMERCO Note Indenture.
"New AMERCO Notes" means the 12% Senior Secured Subordinated Notes Due
2011 in the principal amount of $____________ issued pursuant to the New AMERCO
Note Indenture.
"New Credit Agreement" means the Loan and Security Agreement dated as
of March __, 2004, by and among Xxxxx Fargo Foothill, Inc., as lead arranger,
administrative agent, and Collateral Agent the Bank Lenders, the Borrowers,
together with any guarantees, real property security instruments, security
agreements, and any other instrument, letter, certificate, or agreement entered
into or executed now or in the future, in connection therewith, as any of the
foregoing may be subsequently amended, restated, refinanced, refunded, extended
or replaced from time to time whether by the same or any other agent, lender or
group of lenders, and shall include agreements in respect of Hedging Obligations
designed to protect against fluctuations in interest rates and entered into with
respect to loans thereunder.
"Note Documents" means this Agreement (together with all exhibits and
schedules hereto), the Notes, the Cash Management Agreements (as defined in the
New Credit Agreement), the Collateral Access Agreements, the Confirmation Order,
the Control Agreements, the Copyright Security Agreement, the Guarantor Security
Agreement, the Guaranty Agreement, the Note Guarantees, the Environmental
Indemnity Agreements, the Mortgages, the Patent and Trademark Security
Agreement, the Quebec Security Documents, the Intercreditor Agreement, the Stock
Pledge Agreement, any other Security Document and any other agreement entered
into, now or in the future, by any Note Party in connection with this Agreement
or any other Security Document.
"Note Guarantee" means, collectively, the guarantee by each Guarantor
of the Company's obligations under this Agreement, the Notes and the other Note
Documents in favor of the Trustee, for the benefit of the Holders, executed
pursuant to the provisions of this Agreement.
"Note Party" means the Company or any Guarantor, and "Note Parties"
means the Company and all Guarantors.
"Notes" means the Class A Notes, the Class B Notes and the Exchange
Notes.
"Obligation" means any principal, interest, premiums, Additional
Interest, penalties, fees, indemnifications, reimbursements, costs, expenses,
damages and other liabilities payable and any performance due under the
documentation governing any Indebtedness.
19
"OFAC" means the Office of Foreign Assets Control of the United States
Department of Treasury.
"Officer" means any of the following of the Company: the Chairman of
the Board of Directors, the Chief Executive Officer, the Chief Financial
Officer, the President, any Vice President, the Treasurer or the Secretary.
"Officers' Certificate" means a certificate signed by two Officers.
"Organizational ID Number" means, with respect to any Person, the
organizational identification number assigned to such Person by the applicable
governmental unit or agency of the jurisdiction of organization or formation of
such Person.
"Oxford" means Oxford Life Insurance Company, an Arizona corporation,
and its Subsidiaries, whether now existing or hereafter formed.
"Parent Relief Date" means June 20, 2003.
"Participant" means, with respect to the Depositary, a Person who has
an account with the Depositary.
"Patent and Trademark Security Agreement" means that certain patent and
trademark security agreement executed and delivered by all Note Parties that own
patent or trademarks as of the Issue Date, and the Trustee, in the same form and
substance as delivered to the Bank Lenders' Agent under the New Credit
Agreement, with such modifications as necessary to reflect the fact that the
Trustee's Liens in the Collateral subject thereto are security interests, second
in priority only to the first priority security interests granted to Bank
Lenders' Agent pursuant to the New Credit Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation as defined in
Title IV of ERISA, or any successor thereto.
"Permitted Dispositions" means (a) sales or other dispositions by the
Borrowers or their Subsidiaries of Equipment that is substantially worn,
damaged, or obsolete in the ordinary course of business, as determined by the
Borrowers or their Subsidiaries, as the case may be, (b) the use or transfer of
money or Cash Equivalents by Borrowers or their Subsidiaries in a manner that is
not prohibited by the terms of this Agreement or the other Note Documents, (c)
the licensing by Borrowers or their Subsidiaries, on a non-exclusive basis, of
patents, trademarks, copyrights, and other intellectual property rights in the
ordinary course of business, (d) sales or dispositions of any Excluded Asset,
(e) leases and licenses of self-storage units to customers in the ordinary
course of business, (f) the granting of billboard and cell tower leases on any
Real Property, (g) the granting of space leases in the ordinary course of
business that do not constitute Major Space Leases, unless otherwise consented
to by the Bank Lenders' Agent, (h) dispositions of Real Property or any part
thereof required in connection with condemnations or takings, or dispositions in
lieu thereof, where the compensation paid on account thereof is immediately
remitted to the Bank Lenders' Agent, (i) so long as no Event of Default has
occurred and is continuing, dispositions of box-trucks, cargo vans and pickup
trucks in the ordinary course of the Company's and U-Haul's fleet rotation
program, so long as the aggregate net book value of box-
20
trucks, cargo vans and pickup trucks subject to Trustee's Liens does not
decrease by more than (i) $40,000,000 in any of (A) the first fiscal quarter
after the Issue Date (to be tested as of the end of such period), (B) the first
two fiscal quarters after the Issue Date (to be tested as of the end of such
period), (C) the first three fiscal quarters after the Issue Date (to be tested
as of the end of such period), or (D) each 12-month period thereafter (to be
tested as of the end of each fiscal quarter), or (ii) $160,000,000 in the
aggregate after the Issue Date, (j) the granting of Permitted Easements, (k) so
long as no Event of Default has occurred and is then continuing, the sale in the
ordinary course of business of Vehicles acquired within the previous 130 days in
connection with a TRAC Lease Transaction to the extent the obligations
thereunder are permitted by this Agreement, (l) the sale, disposition or
replacement of Vehicles exchanged in connection with the PMCC Like Kind Exchange
Lease, (m) sales or other dispositions set forth in the Reorganization Plan and
approved in the Confirmation Order, (n) the sale of that certain portion of the
parcel of Real Property Collateral located at 000 Xxxxx Xxxx, Xxxxxxxxxxxx, Xxx
Xxxx that is subject to the lease purchase option exercised prior to the Issue
Date, and (o), so long as no Event of Default shall be caused thereby, other
dispositions of Real Property Collateral with a Fair Market Valuation in an
aggregate amount not to exceed either (i) $10,000,000 during any fiscal year or
(ii) $35,000,000 in total after the Issue Date unless otherwise consented to by
the Required Lenders; provided, however, the sale or other disposition of any
parcel of Real Property Collateral (x) shall result in a Note Party receiving
proceeds in an amount of not less than 80% of the Fair Market Valuation of such
Real Property Collateral, and (y) with an appraised Fair Market Valuation
exceeding $7,000,000 shall not constitute a Permitted Disposition, unless
consented to by the Required Lenders.
"Permitted Easements" means (a) easements, licenses, rights-of-way and
other rights and privileges in the nature of easements reasonably necessary or
desirable for the use, repair, or maintenance of any Real Property as herein
provided and (b) if required by applicable Governmental Authority, the
dedication or transfer of unimproved portions of any Real Property for road,
highway or other public purposes; so long as, in each case (i) such grant,
dedication or transfer does not materially impair the value or remaining useful
life of the applicable Real Property or the fair market value of such Real
Property or materially impair or interfere with the use or operations thereof,
(ii) such grant, dedication or transfer, in the Company's business judgment, is
reasonably necessary in connection with the use, maintenance, alteration or
improvement of the applicable Real Property and (iii) such grant, dedication or
transfer will not cause the applicable Real Property or any portion thereof to
fail to comply with the provisions of the Note Documents and all Applicable Law.
"Permitted Holder" means Xxxxxx X. Xxxxx, Xxxx X. Xxxxx, Xxxxx X.
Xxxxx, and their Family Members, and their Family Trusts.
"Permitted Investments" means (a) Investments in cash and Cash
Equivalents, (b) Investments in negotiable instruments for collection, (c)
advances made in connection with purchases of goods or services in the ordinary
course of business, (d) Investments by any Note Party in any other Note Party;
provided, to the extent such Investment is in the form of Indebtedness, such
Indebtedness shall be unsecured, (e) Investments by U-Haul and Nationwide
Commercial Co. evidenced by the Junior Notes not to exceed the principal amount
outstanding thereunder as of the Issue Date (except for increases in principal
resulting solely from the accrual of interest thereon), (f) payments by U-Haul
and its Subsidiaries of expenses on behalf of SAC
21
Holdings pursuant to the Management Agreements provided that all such expenses
are promptly reimbursed by the appropriate other parties to the Management
Agreements, (g) Investments in PMSR, PM Preferred or any of its or their
Affiliates owned by the Company or any of its Subsidiaries or SAC Holding solely
to the extent required pursuant to the Company's obligations under the Support
Party Agreements, so long as (i) on the date of such Investment, Borrowers'
Excess Availability plus Qualified Cash (as reported by Borrowers pursuant to
Section 6.2(a) of the New Credit Agreement) exceeds (A) $35,000,000 plus (B) the
amount of such Investment, as of the date of such payment and as of the end of
the month for each of the preceding consecutive 12 fiscal months immediately
preceding such payment date, (ii) after giving effect to such Investment,
Borrowers' Excess Availability plus Qualified Cash, as reflected in the
Projections (as defined in the New Credit Agreement) most recently delivered to
Bank Lenders' Agent pursuant to Section 6.3(c) of the New Credit Agreement is
projected to exceed $35,000,000 as of the month end for each of the 12 fiscal
months immediately succeeding the date of such Investment for each of the 12
fiscal months, and (iii) no Event of Default has occurred and is continuing or
would result therefrom, (h) guarantees by the Company of the obligations of its
Subsidiaries that are Note Parties to the extent such obligations are otherwise
permitted hereunder and are consistent with past practices, (i) payments by
U-Haul and its Subsidiaries in the ordinary course of business and consistent
with past practices of certain ordinary course operating expenses on behalf of
any U-Haul Dealer pursuant to a Dealership Contract, provided that the
applicable U-Haul Dealer reimburses U-Haul and its Subsidiaries for all such
expenses in accordance with the provisions of the Dealership Contract, (j) Hedge
Agreements, as permitted hereunder, and (k) other Investments in an aggregate
amount not to exceed $5,000,000 per year, unless otherwise consented to by the
Required Lenders.
"Permitted Liens" means (a) Liens held by the Trustee for the benefit
of the Holders, (b) Liens for unpaid taxes that (i) are not yet delinquent, or
(ii) are the subject of a Permitted Protest, (c) Liens set forth on Schedule P-1
to the New Credit Agreement, (d) (i) the interests of lessors under operating
leases and under Synthetic Leases, including any refinancings thereof, and (ii)
the interests of the lessor and indenture trustee under the PMCC Leveraged
Lease, (e) purchase money Liens or the interests of lessors in leased assets
under Capital Leases to the extent that such Liens or interests secure Purchase
Money Indebtedness permitted hereunder and so long as such Lien attaches only to
the asset purchased or acquired and the proceeds thereof, (f) Liens arising by
operation of law in favor of warehousemen, landlords, carriers, mechanics,
materialmen, laborers, or suppliers, incurred in the ordinary course of business
and not in connection with the borrowing of money, and which Liens either (i)
are for sums not yet delinquent or (ii) are the subject of Permitted Protests,
(g) Liens arising from deposits made in connection with obtaining worker's
compensation or other unemployment insurance, (h) Liens or deposits to secure
performance of bids, tenders, or leases incurred in the ordinary course of
business and not in connection with the borrowing of money, (i) Liens granted as
security for surety or appeal bonds in connection with obtaining such bonds in
the ordinary course of business, (j) Liens with respect to the Real Property
Collateral that are exceptions to the commitments for title insurance issued in
connection with the Mortgages, as accepted by Bank Lenders' Agent under the New
Credit Agreement, (k) with respect to any Real Property, Permitted Easements,
(l) Liens arising from judgments and attachments in connection with court
proceedings provided that the attachment or enforcement of such Liens would not
result in an Event of Default hereunder and such Liens are subject to a
Permitted Protest and no material Collateral is subject to a material risk of
loss or forfeiture and the claims in respect of such Liens
22
are fully covered by insurance (subject to ordinary and customary deductibles)
and a stay of execution pending appeal or proceeding for review is in effect,
(m) Liens granted to the New AMERCO Note Lenders pursuant to the New AMERCO Note
Documents on the property described in clauses (b), (c), (e) and (f) of the
definition of "Excluded Assets" set forth in this Section 1.01, (n) Liens
granted to the Bank Lenders' Agent pursuant to the New Credit Agreement, and (o)
Liens arising from the refinancing of the Obligations (as defined in the New
Credit Agreement), which do not result in the creation of additional first
priority Liens in excess of the first priority Liens in existence on the Issue
Date.
"Permitted Protest" means the right of the Company or any of its
Subsidiaries, as applicable, to protest any Lien (other than any such Lien that
secures the Obligations), taxes (other than payroll taxes or taxes that are the
subject of a United States federal tax lien), or rental payment, provided that
(a) a reserve with respect to such obligation is established on such Person's
Books in such amount as is required under GAAP, (b) any such protest is
instituted promptly and prosecuted diligently by the Company or any of its
Subsidiaries, as applicable, in good faith, and (c) while any such protest is
pending, there will be no impairment of the enforceability, validity, or
priority of any of the Trustee's Liens.
"Person" means any natural person, corporation, limited liability
company, limited partnership, general partnership, limited liability
partnership, joint venture, trust, land trust, business trust, or other
organization, irrespective of whether it is a legal entity, and any government
and agency or political subdivision thereof.
"Personal Property Collateral" means all Collateral other than Real
Property.
"PMCC Like Kind Exchange Lease" means that certain Master Equipment
Lease Agreement dated as of June 30, 2000, between Norwest Bank Minnesota,
National Association, as lessor, and U-Haul Leasing & Sales Co., as lessee, and
all ancillary agreements referenced therein, as all of the foregoing exist on
the Issue Date, and as amended to the extent permitted herein.
"PMCC Leveraged Lease" means that certain Equipment Lease Agreement
(U-Haul Trust No. 96-1) dated as of June 28, 1996 between Fleet National Bank,
as lessor, and U-Haul Leasing & Sales Co., as lessee, and all ancillary
agreements referenced therein, as all of the foregoing exist on the Issue Date,
and as amended to the extent permitted herein.
"PM Preferred" means PM Preferred Properties, L.P., a Texas limited
partnership.
"PMSR" means Private Mini Storage Realty, L.P., a Texas limited
partnership.
"PPSA" means the Personal Property Security Act, as in effect from time
to time in any applicable Canadian province or territory.
"principal" means, with respect to the Notes, the principal of the
Notes.
"Private Placement Legend" means the legend set forth in Section
2.06(g) to be placed on all Class B Notes issued under this Agreement except
where otherwise permitted by the provisions of this Agreement.
23
"Purchase Money Indebtedness" means Indebtedness (other than the
Obligations, but including Capitalized Lease Obligations), incurred at the time
of, or within 20 days after, the acquisition of any fixed assets for the purpose
of financing all or any part of the acquisition cost thereof.
"PWC Litigation" means that certain claim filed by the Company against
PricewaterhouseCoopers on or about June 5, 2003 in the Superior Court of
Arizona, Maricopa County, No. CV2003-011032, and all related disputes between
the Company and PricewaterhouseCoopers.
"Qualified Cash" means, as of any date of determination, the amount of
unrestricted cash and Cash Equivalents of the Note Parties that is in Deposit
Accounts or in Securities Accounts, or any combination thereof, and after August
15, 2003, which such Deposit Account or Securities Account is the subject of a
Control Agreement and is maintained by a branch office of the bank or securities
intermediary located within the United States.
"Quebec Security Documents" means, collectively, (a) the deed of
hypothec and issue of bonds by each Canadian Subsidiary in favor of the Fonde de
pouvoir creating a hypothec in the principal amount of Cdn$1,320,000,000 in all
the Canadian Subsidiaries' personal (movable) and real (immovable) property, (b)
the delivery order by each Canadian Subsidiary to the Fonde de pouvoir, (c) the
25% demand bond issued by each Canadian Subsidiary to the Trustee and certified
by the Fonde de pouvoir, and (d) the pledge agreement by each Canadian
Subsidiary pledging the 25% demand bond in favor of the Trustee in the form and
substance delivered to Bank Lenders' Agent, with such modifications as are
necessary to reflect Trustee's security interests, second in priority only to
the first priority security interests granted to Bank Lenders' Agent pursuant to
the New Credit Agreement.
"Real Property" means any estates or interests in real property now
owned or hereafter acquired by any Note Party and the improvements thereto.
"Real Property Collateral" means the parcel or parcels of Real Property
identified on Schedule R-1 to the New Credit Agreement and any Real Property
hereafter acquired by a Note Party on which the Trustee has, or any Note Party
is required (in accordance with this Agreement or any other Note Document) to
xxxxx x Xxxx.
"Record" means information that is inscribed on a tangible medium or
which is stored in an electronic or other medium and is retrievable in
perceivable form.
"Redeem" means to redeem, repurchase, purchase, defease, retire,
discharge or otherwise acquire or retire for value; and "redemption" shall have
a correlative meaning.
"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of March __, 2004, by and among the Company, the Guarantors
and the purchasers of the Class B Notes, as such agreement may be amended,
modified or supplemented from time to time.
"Refinance" means to refinance, repay, prepay, replace, renew or
refund.
24
"Remedial Action" means all actions taken to (a) clean up, remove,
remediate, contain, treat, monitor, assess, evaluate, or in any way address
Hazardous Materials in the indoor or outdoor environment, (b) prevent or
minimize a release or threatened release of Hazardous Materials so they do not
migrate or endanger or threaten to endanger public health or welfare or the
indoor or outdoor environment, (c) perform any pre-remedial studies,
investigations, or post-remedial operation and maintenance activities, or (d)
conduct any other actions authorized by 42 U.S.C. Section 9601.
"Reorganization Plan" means that certain First Amended Joint Plan of
Reorganization dated November 26, 2003, filed under Chapter 11 of the United
States Bankruptcy Code by the Company and AREC, together with any amendments or
modifications thereto.
"RepWest" means Republic Western Insurance Company, an Arizona
corporation, and its Subsidiaries, whether now existing or hereafter formed.
"Required Holders" means at any time of determination:
(i) if at such time Class B Notes are then outstanding,
then (1) the Holders of at least 75% of the aggregate principal amount
of the then outstanding Class B Notes, and (2) Holders of a majority in
aggregate principal amount of the Class A Notes then outstanding; and
(ii) if at such time there are no Class B Notes
outstanding, the Holders of a majority in aggregate principal amount of
the Notes then outstanding.
"Required Lenders" has the meaning ascribed thereto in the New Credit
Agreement.
"Reservation Management System" means the software system known as
"Microres," which is used in connection with customer reservations of U-Haul
products and services.
"Responsible Officer," when used with respect to the Trustee, means any
officer within the Corporate Trust Office of the Trustee (or any successor group
of the Trustee) or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of such Person's knowledge of
and familiarity with the particular subject.
"SAC Holding" means, collectively, SAC Holding Corporation, a Nevada
corporation, SAC Holding II Corporation, a Nevada corporation, Montreal Holding
Corporation, a Nevada corporation, and each of their respective Subsidiaries,
whether now existing or hereafter formed.
"Sale Date" has the meaning set forth in Section 5.04.
"SEC" means the United States Securities and Exchange Commission and
any successor thereto.
"SEC Filings" means, with respect to any Person, all reports, documents
and other information filed by such Person pursuant to the Securities Act, and
the Securities Exchange Act
25
of 1934, as amended, and all other rules and regulations promulgated by the SEC,
including such Person's filed Form 10-K and subsequently filed quarterly reports
on Form 10-Q and current reports on Form 8-K.
"Securities Account" means a "securities account" as that term is
defined in the Code.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" means a Shelf Registration Statement as
defined in the Registration Rights Agreement.
"SSI" means Self-Storage International Holding Corporation, a Nevada
corporation, and any Subsidiary thereof, whether now existing or hereafter
formed.
"Statutory Lien Payments" means all contributions required to be made
by Company and its Subsidiaries pursuant to the Canada Pension Plan Act
(Canada), provincial pension plan contributions, workers compensation
assessments, and employment insurance premiums payable under Applicable Laws.
"Stock" means all shares, options, warrants, interests, participations,
or other equivalents (regardless of how designated) of or in a Person, whether
voting or nonvoting, including common stock, preferred stock, or any other
"equity security" (as such term is defined in Rule 3a11-1 of the General Rules
and Regulations promulgated by the SEC under the Exchange Act).
"Stock Pledge Agreement" means, collectively, one or more stock pledge
agreements, in the form and substance similar to those delivered to Bank
Lenders' Agent under the New Credit Agreement (with such modifications as
necessary to reflect the fact that the Trustee's Liens in the Collateral subject
thereto are security interests, second in priority only to the first priority
security interests granted to Bank Lenders' Agent pursuant to the New Credit
Agreement), executed and delivered by each Note Party that owns Stock of a
Subsidiary of the Company; provided a Stock Pledge Agreement shall not be
required in connection with the Stock of the Insurance Subsidiaries, the Dormant
Subsidiaries, INW, or Storage Realty, L.L.C.
"Subsidiary" of a Person means a corporation, partnership, limited
liability company, or other entity in which that Person directly or indirectly
owns or controls the shares of Stock having ordinary voting power to elect a
majority of the board of directors (or appoint other comparable managers) of
such corporation, partnership, limited liability company, or other entity;
provided, however, PMSR, PM Preferred, SAC Holding and SSI shall not be deemed
to be Subsidiaries of any Borrower herein.
"Support Party Agreement" means, collectively, (i) that certain Support
Party Agreement dated as of February 28, 2003 by and among the Company and PM
Preferred in favor of GMAC Commercial Holding Corp., as administrative agent, as
amended by the First Amendment to Support Party Agreement dated as of June 13,
2003, and (ii) that certain PMSR Agreement to be dated as of the Effective Date,
by and among the Company, PMSR, XX Xxxxxx Chase Bank, as administrative agent,
and lenders signatory thereto, in each case as amended prior to the Issue
26
Date and after the Issue Date as permitted herein (provided, in each case, such
amendment does not increase the obligations of any Note Party thereunder).
"Supporting Obligation" means any Person's now owned or hereafter
acquired right, title and interest with respect to any "supporting obligation"
as that term is defined in the Code.
"Synthetic Leases" means, collectively, (i) that certain Amended and
Restated Master Lease and Open-End Mortgage dated as of July 27, 1999 among
U-Haul, AREC, the various lessors identified therein and BMO Global Solutions,
Inc. and any related documentation, (ii) that certain Master Lease dated as of
September 24, 1999 between BMO Global Capital Solutions, Inc. and AREC and any
related documentation; and (iii) that certain Canadian U-Haul Master Lease dated
as of April 5, 2001 between Computershare Trust Company of Canada, as successor
to Montreal Trust Company of Canada, and U-Haul (Canada), and any related
documentation, each as may be subsequently amended, restated or refinanced to
the extent permitted hereunder.
"Trustee" means the party named as such above until a successor
replaces it in accordance with the applicable provisions of this Agreement and
thereafter means the successor serving hereunder.
"TIA" means the Trust Indenture Act of 1939, as amended.
"TRAC Lease Transaction" means any operating or capital lease (as
determined in accordance with GAAP) entered into by any Note Party pursuant to a
"Terminal Rental Adjustment Clause" lease (including, without limitation, the
PMCC Like Kind Exchange Lease) whereby (a) (i) the ownership of a Vehicle that
is owned by such Note Party is transferred to a lessor within 130 days of the
acquisition of such Vehicle or (ii) the ownership of a Vehicle is transferred to
a lessor by someone other than a Note Party, and (b) the Vehicle so transferred
is leased back to the Note Party by such lessor.
"Trustee's Liens" means the Liens granted by the Company and the
Guarantors to the Trustee, for the benefit of the Holders of the Notes, under
this Agreement, the Security Documents and the other Note Documents.
"U-Haul" means U-Haul International, Inc., a Nevada corporation.
"U-Haul (Canada)" means U-Haul Co. (Canada) Ltd. U-Haul Co. (Canada)
Ltee, an Ontario corporation.
"U-Haul Dealer" means any Person that leases Vehicles on behalf of
U-Haul in the ordinary course of business pursuant to a Dealership Contract, as
identified on the Dealer List.
"USA Patriot Act" shall mean the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001, Pub. L. No. 107-56, 115 Stat. 272 (2001), as the same has been, or shall
hereafter be, renewed, extended, amended or replaced.
27
"U.S. Government Obligations" means direct non-callable obligations of,
or obligations guaranteed by, the United States of America for the payment of
which guarantee or obligations the full faith and credit of the United States is
pledged.
"Vehicle" or "Vehicles" means any vehicle (including any motor
vehicle), trailer or other asset of any Note Party represented by a certificate
of title.
"WPCarey Transaction" means the transaction whereby UH Storage (DE)
Limited Partnership, a Delaware limited partnership, or other Affiliate of W.P.
Xxxxx & Co., LLC, will acquire the Real Property that is subject to the
Synthetic Leases (excluding Real Property located in Canada) and such Synthetic
Leases shall be paid in full and terminated, all as more fully set forth on
Schedule W-1 to the New Credit Agreement.
1.02 Other Definitions.
Defined in
Term Section
---- -------
"Additional Documents" 11.09
"Authentication Order" 2.02
"Covenant Defeasance" 8.03
"DTC" 2.03
"Event of Default" 6.01
"Fonde de pouvoir" 11.16
"Guaranteed Obligations" 10.01
"Legal Defeasance" 8.02
"Paying Agent" 2.03
"Registrar" 2.03
"Sale Date" 5.04
"Security Documents" 11.01
1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Agreement refers to a provision of the TIA, the provision
is incorporated by reference in and made a part of this Agreement.
The following TIA terms used in this Agreement have the following
meanings:
"indenture securities" means the Notes;
"indenture security Holder" means a Holder of a Note;
"indenture to be qualified" means this Agreement;
"indenture trustee" or "institutional trustee" means the Trustee; and
"obligor" on the Notes and the Note Guarantees means the Company and
the Guarantors, respectively, and any successor obligor upon the Notes and the
Note Guarantees, respectively.
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All other terms used in this Agreement that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule under the TIA
have the meanings so assigned to them.
Terms defined under the New Credit Agreement and referenced herein
shall have the meanings ascribed in the New Credit Agreement as of the date
hereof, notwithstanding any later modification or termination of the New Credit
Agreement, unless such modification is made in accordance with Article IX
hereof. Amendments to such definitions as used herein may only be made in
accordance with Article IX hereof.
1.04 Accounting Terms; GAAP.
Except as otherwise expressly provided herein, all terms of an
accounting or financial nature shall be construed in accordance with GAAP, as in
effect from time to time; provided that for purposes of determining compliance
with any covenant set forth in Article V, such terms shall be construed in
accordance with GAAP as in effect on the date of this Agreement applied on a
basis consistent with the application used in preparing the Borrowers' audited
financial statements referred to in Section 4.04. If any change in accounting
principles from those used in the preparation of the audited financial
statements referred to in Section 4.04 hereafter occasioned by the promulgation
of any rule, regulation, pronouncement or opinion by or required by the
Financial Accounting Standards Board (or successors thereto or agencies with
similar functions) would result in a change in the method of calculation of
financial covenants, standards or terms found in Article I or Article V, except
as provided in Section 9.07, the parties hereto agree to enter into negotiations
in order to amend such provisions so as to equitably reflect such changes with
the desired result that the criteria for evaluating the Company's financial
condition shall be the same after such change as if such change had not been
made; provided, however, the parties hereto agree to construe all terms of an
accounting or financial nature in accordance with GAAP as in effect prior to any
such change in accounting principles until the parties hereto have amended the
applicable provisions of this Agreement.
1.05 Code.
Any terms used in this Agreement that are defined in the Code
shall be construed and defined as set forth in the Code unless otherwise defined
herein.
1.06 Construction.
Unless the context of this Agreement or any other Note Document clearly
requires otherwise, references to the plural include the singular, references to
the singular include the plural, the term "including" is not limiting, and the
term "or" has, except where otherwise indicated, the inclusive meaning
represented by the phrase "and/or." The words "hereof," "herein," "hereby,"
"hereunder," and similar terms in this Agreement or any other Note Document
refer to this Agreement or such other Note Document, as the case may be, as a
whole and not to any particular provision of this Agreement or such other Note
Document, as the case may be. Section, subsection, clause, schedule, and exhibit
references herein are to this Agreement unless otherwise specified. Any
reference in this Agreement or in the other Note Documents to any agreement,
instrument, or document shall include all alterations, amendments,
29
changes, extensions, modifications, renewals, replacements, substitutions,
joinders, and supplements, thereto and thereof, as applicable (subject to any
restrictions on such alterations, amendments, changes, extensions,
modifications, renewals, replacements, substitutions, joinders, and supplements
set forth herein). Any reference herein to any Person shall be construed to
include such Person's successors and assigns. Any requirement of a writing
contained herein or in the other Note Documents shall be satisfied by the
transmission of a Record and any Record transmitted shall constitute a
representation and warranty as to the accuracy and completeness of the
information contained therein.
1.07 Schedules and Exhibits.
All of the schedules and exhibits attached to this Agreement,
together with any amendments, restatements, supplements, or other modifications
to such schedules and exhibits permitted hereunder shall be deemed incorporated
herein by reference.
ARTICLE II
THE NOTES
2.01 Form and Dating.
(a) General. The Class A Notes and Class B Notes and the related
Trustee's certificate of authentication shall be substantially in the form of
Exhibit A and Exhibit B hereto, respectively. Each Note shall include the Note
Guarantee in the form of Exhibit C attached hereto, executed by each of the
Guarantors existing on the date of the issuance of such Note, the terms of which
are incorporated in and made a part of this Indenture. The Notes may have
notations, legends or endorsements required by law, stock exchange rule or usage
(provided that any such notation, legend, or endorsement is in a form reasonably
acceptable to the Required Holders). Each Note shall be dated the date of its
authentication. [The Notes shall be in denominations of $1,000 and integral
multiples thereof.]
The terms and provisions contained in the Notes shall constitute, and
are hereby expressly made, a part of this Agreement and the Company, the
Guarantors and the Trustee, by their execution and delivery of this Agreement,
expressly agree to such terms and provisions and to be bound thereby. However,
to the extent any provision of any Note conflicts with the express provisions of
this Agreement, the provisions of this Agreement shall govern and be
controlling.
(b) Global Notes. Class A Notes and Class B Notes issued in global
form shall be substantially in the form of Exhibit A and Exhibit B attached
hereto, respectively (including the Global Note Legend thereon and the "Schedule
of Exchanges of Interests in the Global Note" attached thereto). Class A Notes
and Class B Notes issued in definitive form shall be substantially in the form
of Exhibit A and Exhibit B attached hereto, respectively (but without the Global
Note Legend thereon and without the "Schedule of Exchanges of Interests in the
Global Note" attached thereto). Each Global Note shall represent such of the
outstanding Notes as shall be specified therein and each shall provide that it
shall represent the aggregate principal amount of outstanding Notes from time to
time endorsed thereon and that the aggregate principal amount of outstanding
Notes represented thereby may from time to time be reduced or increased, as
appropriate, to reflect
30
exchanges and redemptions. Any endorsement of a Global Note to reflect the
amount of any increase or decrease in the aggregate principal amount of
outstanding Notes represented thereby shall be made by the Trustee or the
Depositary Custodian, at the direction of the Trustee, in accordance with
instructions given by the Holder thereof as required by Section 2.06 hereof.
2.02 Execution and Authentication.
An Officer shall sign the Notes for the Company by manual or facsimile
signature, and attested by another Officer by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that office
at the time a Note is authenticated, the Note shall nevertheless be valid.
A Note shall not be valid until authenticated by the manual signature
of the Trustee. The signature shall be conclusive evidence that the Note has
been authenticated under this Agreement. The form of Trustee's certificate of
authentication of the Notes shall be substantially as set forth in Exhibit A or
Exhibit B, as applicable, attached hereto.
The Trustee shall authenticate Notes upon a written order of the
Company in the form of an Officers' Certificate of the Company (an
"Authentication Order"). Each such written order shall specify the amount of
Notes to be authenticated and the date on which the Notes are to be
authenticated, and whether the Notes are to be issued as certificated Notes or
Global Notes or such other information as the Trustee may reasonably request. In
addition, the first such written order from the Company shall be accompanied by
an opinion of counsel of the Company in a form reasonably satisfactory to the
Trustee.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Notes. An authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this Agreement to
authentication by the Trustee includes authentication by such agent. An
authenticating agent has the same rights as an Agent to deal with Holders or the
Company.
2.03 Registrar and Paying Agent.
The Company shall maintain an office or agency where Notes may be
presented for registration of transfer or for exchange ("Registrar") and an
office or agency where Notes may be presented for payment ("Paying Agent")
within the City and State of New York. The Registrar shall keep a written
register with the name and address of each Holder and the principal amount and
stated interest of each Holder's Note, and of the transfer and exchange of each
Note. The Company may appoint one or more co-registrars and one or more
additional paying agents. The term "Registrar" includes any co-registrar and the
term "Paying Agent" includes any additional paying agent. The Company may change
any Paying Agent or Registrar with the prior written consent of the Required
Holders. The Company shall notify the Trustee in writing of the name and address
of any Agent not a party to this Agreement. If the Company fails to appoint or
maintain another entity as Registrar or Paying Agent, the Trustee shall act as
such. The Company or any of its Subsidiaries may act as Paying Agent or
Registrar.
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The Company initially appoints The Depository Trust Company ("DTC") to
act as Depositary with respect to the Global Notes.
The Company initially appoints the Trustee to act as the Registrar and
Paying Agent and to act as Depositary Custodian with respect to the Global
Notes.
2.04 Paying Agent to Hold Money in Trust.
The Company shall require each Paying Agent other than the Trustee to
agree in writing that the Paying Agent will hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of
principal, premium, fees or Additional Interest, if any, or interest on the
Notes, and will notify the Trustee of any default by the Company in making any
such payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. The Company at any time may
require a Paying Agent to pay all money held by it to the Trustee. Upon payment
over to the Trustee, the Paying Agent (if other than the Company or a
Subsidiary) shall have no further liability for the money. If the Company or a
Subsidiary acts as Paying Agent, it shall segregate and hold in a separate trust
fund for the benefit of the Holders all money held by it as Paying Agent. Upon
any bankruptcy or reorganization proceedings relating to the Company, the
Trustee shall serve as Paying Agent for the Notes.
2.05 Holder Lists.
The Trustee shall preserve in as current a form as is reasonably
practicable the most recent list available to it of the names and addresses of
all Holders and shall otherwise comply with TIA Section 312(a). If the Trustee
is not the Registrar, the Company shall furnish to the Trustee at least seven
Business Days before each interest payment date and at such other times as the
Trustee may request in writing, a list in such form and as of such date as the
Trustee may reasonably require of the names and addresses of the Holders of
Notes and the Company shall otherwise comply with TIA Section 312(a).
2.06 Transfer and Exchange.
(a) Transfer and Exchange of Global Notes. A Global Note may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary, by a nominee of the Depositary to the Depositary or to another
nominee of the Depositary, or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary. All Global Notes
will be exchanged by the Company for Definitive Notes if (i) the Company
delivers to the Trustee notice from the Depositary that it is unwilling or
unable to continue to act as Depositary or that it is no longer a clearing
agency registered under the Exchange Act and, in either case, a successor
Depositary is not appointed by the Company within 120 days after the date of
such notice from the Depositary or (ii) the Company in its sole discretion
determines that the Global Notes (in whole but not in part) should be exchanged
for Definitive Notes and delivers a written notice to such effect to the
Trustee. Upon the occurrence of either of the preceding events in (i) or (ii)
above, Definitive Notes shall be issued in such names as the Depositary shall
instruct the Trustee. Global Notes also may be exchanged or replaced, in whole
or in part, as provided in Sections 2.07 and 2.10 hereof. Every Note
authenticated and delivered in exchange for, or in lieu of, a Global Note
32
or any portion thereof, pursuant to this Section 2.06 or Section 2.07 or 2.10
hereof, shall be authenticated and delivered in the form of, and shall be, a
Global Note. A Global Note may not be exchanged for another Note other than as
provided in this Section 2.06(a), however, beneficial interests in a Global Note
may be transferred and exchanged as provided in Section 2.06(b), (c) or (f)
hereof.
(b) Transfer and Exchange of Beneficial Interests in the Global
Notes. The transfer and exchange of beneficial interests in the Global Notes
shall be effected through the Depositary, in accordance with the provisions of
this Agreement and the Applicable Procedures. Beneficial interests in the Class
B Global Notes shall be subject to restrictions on transfer comparable to those
set forth herein to the extent required by the Securities Act. Transfers of
beneficial interests in the Global Notes also shall require compliance with
either subparagraph (i) or (ii) below, as applicable, as well as one or more of
the other following subparagraphs, as applicable:
(i) Transfer of Beneficial Interests in the Same Global
Note. Beneficial interests in any Class B Global Note may be
transferred to Persons who take delivery thereof in the form of a
beneficial interest in the same Class B Global Note in accordance with
the transfer restrictions set forth in the Private Placement Legend.
Beneficial interests in any Class A Global Note may be transferred to
Persons who take delivery thereof in the form of a beneficial interest
in a Class A Global Note. No written orders or instructions shall be
required to be delivered to the Registrar to effect the transfers
described in this Section 2.06(b)(i).
(ii) All Other Transfers and Exchanges of Beneficial
Interests in Global Notes. In connection with all transfers and
exchanges of beneficial interests that are not subject to Section
2.06(b)(i) above, the transferor of such beneficial interest must
deliver to the Registrar either (A) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
credit or cause to be credited a beneficial interest in another Global
Note in an amount equal to the beneficial interest to be transferred or
exchanged and (2) instructions given in accordance with the Applicable
Procedures containing information regarding the Participant account to
be credited with such increase or (B) (1) a written order from a
Participant or an Indirect Participant given to the Depositary in
accordance with the Applicable Procedures directing the Depositary to
cause to be issued a Definitive Note in an amount equal to the
beneficial interest to be transferred or exchanged and (2) instructions
given by the Depositary to the Registrar containing information
regarding the Person in whose name such Definitive Note shall be
registered to effect the transfer or exchange referred to in (1) above.
Upon consummation of an Exchange Offer by the Company in accordance
with Section 2.06(f) hereof, the requirements of this Section
2.06(b)(ii) shall be deemed to have been satisfied upon receipt by the
Registrar of the instructions contained in the Letter of Transmittal
delivered by the Holder of such beneficial interests in Class B Global
Notes. Upon satisfaction of all of the requirements for transfer or
exchange of beneficial interests in Global Notes contained in this
Agreement and the Notes or otherwise applicable under the Securities
Act, the Trustee shall adjust the principal amount of the relevant
Global Note(s) pursuant to Section 2.06(h) hereof.
33
(iii) Transfer of Beneficial Interests in a Class B Global
Note to Another Restricted Global Note. A beneficial interest in any
Class B Global Note may be transferred to a Person who takes delivery
thereof in the form of a beneficial interest in another Class B Global
Note if the transfer complies with the requirements of Section
2.06(b)(ii) above and the Registrar receives from the holder of such
beneficial interest a certificate if the Registrar so requests or if
the Applicable Procedures so require, an opinion of counsel in form
reasonably acceptable to the Registrar to the effect that such transfer
is in compliance with the Securities Act.
(iv) Transfer and Exchange of Beneficial Interests in a
Class B Global Note for Beneficial Interests in the Class A Global
Note. A beneficial interest in any Class B Global Note may be exchanged
by any holder thereof for a beneficial interest in a Class A Global
Note or transferred to a Person who takes delivery thereof in the form
of a beneficial interest in a Class A Global Note if the exchange or
transfer complies with the requirements of Section 2.06(b)(ii) above
and:
(1) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and the holder of the beneficial interest to be
transferred, in the case of an exchange, or the transferee, in the case
of a transfer, certifies in the applicable Letter of Transmittal that
it is not (1) a broker-dealer, (2) a Person participating in the
distribution of the Exchange Notes or (3) a Person who is an affiliate
(as defined in Rule 144) of the Company;
(2) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement; or
(3) the Registrar receives from the holder of
such beneficial interest in a Class B Global Note; and if the Registrar
so requests or if the Applicable Procedures so require, an opinion of
counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the Class
B Global Note are no longer required in order to maintain compliance
with the Securities Act.
If any such transfer is effected pursuant to subparagraph (B) or (C)
above at a time when a Class A Global Note has not yet been issued, the Company
shall issue and, upon receipt of an Authentication Order in accordance with
Section 2.02 hereof, the Trustee shall authenticate one or more Class A Global
Notes in an aggregate principal amount equal to the aggregate principal amount
of beneficial interests transferred pursuant to subparagraph (B) or (C) above.
Beneficial interests in a Class A Global Note cannot be exchanged for,
or transferred to Persons who take delivery thereof in the form of, a beneficial
interest in a Class B Global Note.
(c) Transfer or Exchange of Beneficial Interest in Global Notes
for Definitive Notes.
(i) Beneficial Interests in Class B Global Notes to Class
B Definitive Notes. If any holder of a beneficial interest in a Class B
Global Note proposes to exchange such beneficial interest for a Class B
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Class B Definitive Note, then,
upon
34
receipt by the Registrar of documentation satisfactory to it, including
without limitation, any legal opinions or certifications, the Trustee
shall cause the aggregate principal amount of the applicable Global
Note to be reduced accordingly pursuant to Section 2.06(h) hereof, and
the Company shall execute and the Trustee shall authenticate and
deliver to the Person designated in the instructions a Definitive Note
in the appropriate principal amount. Any Definitive Note issued in
exchange for a beneficial interest in a Class B Global Note pursuant to
this Section 2.06(c) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such
beneficial interest shall instruct the Registrar through instructions
from the Depositary and the Participant or Indirect Participant. The
Trustee shall deliver such Definitive Notes to the Persons in whose
names such Notes are so registered. Any Definitive Note issued in
exchange for a beneficial interest in a Class B Global Note pursuant to
this Section 2.06(c)(i) shall bear the Private Placement Legend and
shall be subject to all restrictions on transfer contained therein.
(ii) Beneficial Interests in Class B Global Notes to Class
A Definitive Notes. A holder of a beneficial interest in a Class B
Global Note may exchange such beneficial interest for a Class A
Definitive Note or may transfer such beneficial interest to a Person
who takes delivery thereof in the form of a Class A Definitive Note
only if:
(1) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and the holder of such beneficial interest, in the
case of an exchange, or the transferee, in the case of a transfer,
certifies in the applicable Letter of Transmittal that it is not (1) a
broker-dealer, (2) a Person participating in the distribution of the
Exchange Notes or (3) a Person who is an affiliate (as defined in Rule
144) of the Company;
(2) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement; or
(3) the Registrar receives, an opinion of
counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
(iii) Beneficial Interests in Class A Global Notes to Class
A Definitive Notes. If any holder of a beneficial interest in a Class A
Global Note proposes to exchange such beneficial interest for a
Definitive Note or to transfer such beneficial interest to a Person who
takes delivery thereof in the form of a Definitive Note, then, upon
satisfaction of the conditions set forth in Section 2.06(b)(ii) hereof,
the Trustee shall cause the aggregate principal amount of the
applicable Global Note to be reduced accordingly pursuant to Section
2.06(h) hereof, and the Company shall execute and the Trustee shall
authenticate and deliver to the Person designated in the instructions a
Definitive Note in the appropriate principal amount. Any Definitive
Note issued in exchange for a beneficial interest pursuant to this
Section 2.06(c)(iii) shall be registered in such name or names and in
such authorized denomination or denominations as the holder of such
beneficial
35
interest shall instruct the Registrar through instructions from the
Depositary and the Participant or Indirect Participant. The Trustee
shall deliver such Definitive Notes to the Persons in whose names such
Notes are so registered. Any Definitive Note issued in exchange for a
beneficial interest pursuant to this Section 2.06(c)(iii) shall not
bear the Private Placement Legend.
(d) Transfer and Exchange of Definitive Notes for Beneficial
Interests in Global Notes.
(i) Class B Definitive Notes to Beneficial Interests in
Class B Global Notes. If any Holder of a Class B Definitive Note
proposes to exchange such Note for a beneficial interest in a Class B
Global Note or to transfer such Class B Definitive Note to a Person who
takes delivery thereof in the form of a beneficial interest in a Class
B Global Note, then, upon receipt by the Registrar of documentation
satisfactory to it, including, without limitation, any legal opinions
or certifications, the Trustee shall cancel the Class B Definitive
Note, and increase or cause to be increased the aggregate principal
amount of the Class B Global Note.
(ii) Class B Definitive Notes to Beneficial Interests in
Class A Global Notes. A Holder of a Class B Definitive Note may
exchange such Note for a beneficial interest in a Class A Global Note
or transfer such Class B Definitive Note to a Person who takes delivery
thereof in the form of a beneficial interest in a Class A Global Note
only if:
(1) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(2) such transfer is effected pursuant to the
Shelf Registration Statement in accordance with the Registration Rights
Agreement; or
(3) the Registrar receives or if the Registrar
so requests or if the Applicable Procedures so require, an opinion of
counsel in form reasonably acceptable to the Registrar to the effect
that such exchange or transfer is in compliance with the Securities Act
and that the restrictions on transfer contained herein and in the
Private Placement Legend are no longer required in order to maintain
compliance with the Securities Act.
Upon satisfaction of the conditions of any of the subparagraphs in this
Section 2.06(d)(ii), the Trustee shall cancel the Class B Definitive Notes and
increase or cause to be increased the aggregate principal amount of the Class A
Global Note.
(iii) Class A Definitive Notes to Beneficial Interests in
Class A Global Notes. A Holder of a Class A Definitive Note may
exchange such Note for a beneficial interest in a Class A Global Note
or transfer such Definitive Notes to a Person who takes delivery
thereof in the form of a beneficial interest in a Class A Global Note
at any time. Upon receipt of a request for such an exchange or
transfer, the Trustee shall cancel the
36
applicable Class A Definitive Note and increase or cause to be
increased the aggregate principal amount of one of the Class A Global
Notes.
If any such exchange or transfer from a Definitive Note to a beneficial
interest is effected pursuant to subparagraphs (ii)(A), (ii)(B) or (iii) above
at a time when a Global Note has not yet been issued, the Company shall issue
and, upon receipt of an Authentication Order in accordance with Section 2.02
hereof, the Trustee shall authenticate one or more Global Notes in an aggregate
principal amount equal to the principal amount of Definitive Notes so
transferred.
(e) Transfer and Exchange of Definitive Notes for Definitive
Notes. Upon request by a Holder of Definitive Notes and such Holder's compliance
with the provisions of this Section 2.06(e), the Registrar shall register the
transfer or exchange of Definitive Notes. Prior to such registration of transfer
or exchange, the requesting Holder shall present or surrender to the Registrar
the Definitive Notes duly endorsed or accompanied by a written instruction of
transfer in form satisfactory to the Registrar duly executed by such Holder or
by its attorney, duly authorized in writing. In addition, the requesting Holder
shall provide any additional certifications, documents and information, as
applicable, required pursuant to the following provisions of this Section
2.06(e).
(i) Class B Definitive Notes to Class B Definitive Notes.
Any Class B Definitive Note may be transferred to and registered in the
name of Persons who take delivery thereof in the form of a Class B
Definitive Note if the Registrar receives such legal opinions and
certifications as it determines is reasonably necessary to ensure that
such exchange or transfer is in compliance with the Securities Act.
(ii) Class B Definitive Notes to Class A Definitive Notes.
Any Class B Definitive Note may be exchanged by the Holder thereof for
a Class A Definitive Note or transferred to a Person or Persons who
take delivery thereof in the form of a Class A Definitive Note if:
(1) such exchange or transfer is effected
pursuant to the Exchange Offer in accordance with the Registration
Rights Agreement and the Holder, in the case of an exchange, or the
transferee, in the case of a transfer, certifies in the applicable
Letter of Transmittal that it is not (1) a broker-dealer, (2) a Person
participating in the distribution of the Exchange Notes or (3) a Person
who is an affiliate (as defined in Rule 144) of the Company;
(2) any such transfer is effected pursuant to
the Shelf Registration Statement in accordance with the Registration
Rights Agreement; or
(3) the Registrar receives or if the Registrar
so requests, an opinion of counsel in form reasonably acceptable to the
Company to the effect that such exchange or transfer is in compliance
with the Securities Act and that the restrictions on transfer contained
herein and in the Private Placement Legend are no longer required in
order to maintain compliance with the Securities Act.
(iii) Class A Definitive Notes to Class A Definitive Notes.
A Holder of Class A Definitive Notes may transfer such Notes to a
Person who takes delivery thereof in the
37
form of a Class A Definitive Note. Upon receipt of a request to
register such a transfer, the Registrar shall register the Class A
Definitive Notes pursuant to the instructions from the Holder thereof.
(f) Exchange Offer. Upon the occurrence of the Exchange Offer in
accordance with the Registration Rights Agreement, the Company shall issue and,
upon receipt of an Authentication Order in accordance with Section 2.02, the
Trustee shall authenticate (i) one or more Class A Global Notes in an aggregate
principal amount equal to the principal amount of the beneficial interests in
the Class B Global Notes tendered for acceptance by Persons that certify in the
applicable Letters of Transmittal that (x) they are not broker-dealers, (y) they
are not participating in a distribution of the Exchange Notes and (z) they are
not affiliates (as defined in Rule 144) of the Company, and accepted for
exchange in the Exchange Offer and (ii) Class A Definitive Notes in an aggregate
principal amount equal to the principal amount of the Class B Definitive Notes
accepted for exchange in the Exchange Offer. Concurrently with the issuance of
such Notes, the Trustee shall cause the aggregate principal amount of the
applicable Class B Global Notes to be reduced accordingly, and the Company shall
execute and the Trustee shall authenticate and deliver to the Persons designated
by the Holders of Class B Definitive Notes so accepted Class A Definitive Notes
in the appropriate principal amount.
(g) Legends.
(i) The following legend shall appear on the face of all
Global Notes issued under this Agreement:
"THIS GLOBAL NOTE IS HELD BY THE DEPOSITARY (AS DEFINED IN THE
INDENTURE GOVERNING THIS NOTE) OR ITS NOMINEE IN CUSTODY FOR
THE BENEFIT OF THE BENEFICIAL OWNERS HEREOF, AND IS NOT
TRANSFERABLE TO ANY PERSON UNDER ANY CIRCUMSTANCES EXCEPT THAT
(I) THE TRUSTEE MAY MAKE SUCH NOTATIONS HEREON AS MAY BE
REQUIRED PURSUANT TO SECTION 2.07 OF THE INDENTURE, (II) THIS
GLOBAL NOTE MAY BE EXCHANGED IN WHOLE BUT NOT IN PART PURSUANT
TO SECTION 2.06(a) OF THE INDENTURE, (III) THIS GLOBAL NOTE
MAY BE DELIVERED TO THE TRUSTEE FOR CANCELLATION PURSUANT TO
SECTION 2.11 OF THE INDENTURE AND (IV) THIS GLOBAL NOTE MAY BE
TRANSFERRED TO A SUCCESSOR DEPOSITARY WITH THE PRIOR WRITTEN
CONSENT OF THE COMPANY."
(ii) The following legend shall appear on all Class B
Notes:
"THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED, NOR UNDER ANY STATE SECURITIES LAW AND MAY NOT BE PLEDGED,
SOLD, ASSIGNED OR TRANSFERRED UNLESS (I) A REGISTRATION STATEMENT WITH
RESPECT THERETO IS EFFECTIVE UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), AND ANY APPLICABLE STATE SECURITIES LAW
REQUIREMENTS HAVE BEEN MET OR (II)
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EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS UNDER THE SECURITIES ACT
AND THE REGISTRATION OR QUALIFICATION REQUIREMENTS OF APPLICABLE STATE
SECURITIES LAWS ARE AVAILABLE."
(h) Cancellation and/or Adjustment of Global Notes. At such time
as all beneficial interests in a particular Global Note have been exchanged for
Definitive Notes or a particular Global Note has been redeemed, repurchased or
canceled in whole and not in part, each such Global Note shall be returned to or
retained and canceled by the Trustee in accordance with Section 2.11 hereof. At
any time prior to such cancellation, if any beneficial interest in a Global Note
is exchanged for or transferred to a Person who will take delivery thereof in
the form of a beneficial interest in another Global Note or for Definitive
Notes, the principal amount of Notes represented by such Global Note shall be
reduced accordingly and an endorsement shall be made on such Global Note by the
Trustee or by the Depositary at the direction of the Trustee to reflect such
reduction; and if the beneficial interest is being exchanged for or transferred
to a Person who will take delivery thereof in the form of a beneficial interest
in another Global Note, such other Global Note shall be increased accordingly
and an endorsement shall be made on such Global Note by the Trustee or by the
Depositary at the direction of the Trustee to reflect such increase.
(i) General Provisions Relating to Transfers and Exchanges.
(i) To permit registrations of transfers and exchanges,
the Company shall execute and the Trustee shall authenticate Global
Notes and Definitive Notes upon the Company's order or at the
Registrar's request.
(ii) No service charge shall be made to a holder of a
beneficial interest in a Global Note or to a Holder of a Definitive
Note for any registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any transfer tax or
similar governmental charge payable in connection therewith (other than
any such transfer taxes or similar governmental charge payable upon
exchange or transfer pursuant to Sections 2.10, 3.06, 4.15 and 9.05
hereof).
(iii) The Registrar shall not be required to register the
transfer of or exchange any Note selected for redemption in whole or in
part, except the unredeemed portion of any Note being redeemed in part.
(iv) All Global Notes and Definitive Notes issued upon any
registration of transfer or exchange of Global Notes or Definitive
Notes shall be the valid obligations of the Company, evidencing the
same debt, and entitled to the same benefits under this Agreement, as
the Global Notes or Definitive Notes surrendered upon such registration
of transfer or exchange.
(v) The Company shall not be required (A) to issue, to
register the transfer of or to exchange any Notes during a period
beginning at the opening of business 15 days before the day of any
selection of Notes for redemption under Section 3.02 hereof and ending
at the close of business on the day of selection, (B) to register the
transfer of or to exchange any Note so selected for redemption in whole
or in part, except the unredeemed
39
portion of any Note being redeemed in part or (C) to register the
transfer of or to exchange a Note between a record date and the next
succeeding interest payment date.
(vi) Prior to due presentment for the registration of a
transfer of any Note, the Trustee, any Agent and the Company may deem
and treat the Person in whose name any Note is registered as the
absolute owner of such Note for the purpose of receiving payment of
principal of and interest on such Notes and for all other purposes, and
none of the Trustee, any Agent or the Company shall be affected by
notice to the contrary.
(vii) The Trustee shall authenticate Global Notes and
Definitive Notes in accordance with the provisions of Section 2.02
hereof.
(viii) All certifications, certificates and opinions of
counsel required to be submitted to the Registrar pursuant to this
Section 2.06 to effect a registration of transfer or exchange may be
submitted by facsimile.
(ix) Each Holder agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer,
exchange or assignment by such Holder of such Holder's Note in
violation of any provision of this Agreement and/or applicable Unites
States federal or state securities law.
(x) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Agreement or under applicable law with
respect to any transfer of any interest in any Note (including any
transfers between or among Depositary Participants or beneficial owners
of interests in any Global Note) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the terms
of, this Agreement, and to examine the same to determine substantial
compliance as to form with the express requirements hereof.
2.07 Replacement Notes.
If any mutilated Note is surrendered to the Trustee or the Company and
the Trustee receives evidence to its satisfaction of the destruction, loss or
theft of any Note, the Company shall issue and the Trustee, upon receipt of an
Authentication Order, shall authenticate a replacement Note if the requirements
of this Agreement are met. An indemnity bond must be supplied by the Holder that
is sufficient in the judgment of the Trustee and the Company to protect the
Company, the Trustee, any Agent and any authenticating agent from any loss that
any of them may suffer if a Note is replaced. The Company may charge for its
expenses in replacing a Note.
Every replacement Note is an additional obligation of the Company and
shall be entitled to all of the benefits of this Agreement equally and
proportionately with all other Notes duly issued hereunder.
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2.08 Outstanding Notes.
The Notes outstanding at any time are all the Notes authenticated by
the Trustee except for those canceled by it, those delivered to it for
cancellation, those reductions in the interest in a Global Note effected by the
Trustee in accordance with the provisions hereof, and those described in this
Section as not outstanding. Except as set forth in Section 2.09 hereof, a Note
does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
If a Note is replaced pursuant to Section 2.07 hereof, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the principal amount of any Note is considered paid under Section
4.01 hereof, it ceases to be outstanding and interest on it ceases to accrue.
If the Paying Agent (other than the Company, a Subsidiary or an
Affiliate of any thereof) holds, on a redemption date or maturity date, money
sufficient to pay Notes payable on that date, then on and after that date such
Notes shall be deemed to be no longer outstanding and shall cease to accrue
interest.
2.09 Treasury Notes.
In determining whether the Holders of the required principal amount of
Notes have concurred in any direction, waiver or consent, Notes owned by the
Company, or by any Person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Company, shall be considered as
though not outstanding, except that for the purposes of determining whether the
Trustee shall be protected in relying on any such direction, waiver or consent,
only Notes as to which a Responsible Officer of the Trustee has actual knowledge
are so owned shall be so disregarded.
The Company shall notify the Trustee and the Holders in writing
promptly upon the acquisition of any Notes by the Company or any Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with the Company.
2.10 Temporary Notes.
Until certificates representing Notes are ready for delivery, the
Company may prepare and the Trustee, upon receipt of an Authentication Order,
shall authenticate temporary Notes. Temporary Notes shall be substantially in
the form of certificated Notes but may have variations that the Company
considers appropriate for temporary Notes and as shall be reasonably acceptable
to the Trustee. Without unreasonable delay, the Company shall prepare and the
Trustee shall authenticate Definitive Notes in exchange for temporary Notes.
Holders of temporary Notes shall be entitled to all of the benefits of
this Agreement.
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2.11 Cancellation.
The Company at any time may deliver Notes to the Trustee for
cancellation. The Registrar and Paying Agent shall forward to the Trustee any
Notes surrendered to them for registration of transfer, exchange or payment. The
Trustee and no one else shall cancel all Notes surrendered for registration of
transfer, exchange, payment, replacement or cancellation and shall dispose of
canceled Notes in accordance with its procedures for the disposition of canceled
securities in effect as of the date of such disposition (subject to the record
retention requirement of the Exchange Act). Certification of the disposition of
all canceled Notes shall be delivered to the Company. The Company may not issue
new Notes to replace Notes that it has paid or that have been delivered to the
Trustee for cancellation.
2.12 Defaulted Interest.
If the Company defaults in a payment of interest on the Notes, it shall
pay the defaulted interest in any lawful manner plus, to the extent lawful,
interest payable on the defaulted interest, to the Persons who are Holders on a
subsequent special record date, in each case at the rate provided in the Notes
and in Section 4.01 hereof. The Company shall notify the Trustee in writing of
the amount of defaulted interest proposed to be paid on each Note and the date
of the proposed payment. The Company shall fix or cause to be fixed each such
special record date and payment date; provided that no such special record date
shall be less than 10 days prior to the related payment date for such defaulted
interest. At least 15 days before the special record date, the Company (or, upon
the written request of the Company, the Trustee in the name and at the expense
of the Company) shall mail or cause to be mailed to Holders a notice that states
the special record date, the related payment date and the amount of such
interest to be paid.
2.13 CUSIP Numbers.
The Company in issuing the Notes may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall use "CUSIP" numbers in notices
of redemption as a convenience to Holders; provided, however, that any such
notice may state that no representation is made as to the correctness of such
numbers either as printed on the Notes or as contained in any notice of a
redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Company will promptly notify the
Trustee of any change in the "CUSIP" numbers.
2.14 Deposit of Moneys.
Subject to Section 3.05, prior to 11:00 a.m. (New York, New York time)
on each date on which the principal of, premium, fees and Additional Interest,
if any, and interest on the Notes are due, the Company shall deposit with the
Trustee or Paying Agent in immediately available funds money sufficient to make
cash payments, if any, due on such date in a timely manner which permits the
Trustee or such Paying Agent to remit payment to the Holders on such date.
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ARTICLE III
REDEMPTION AND PREPAYMENT
3.01 Notices to the Trustee.
If the Company elects to redeem Notes pursuant to the optional
redemption provisions of Section 3.07 hereof, it shall furnish to the Trustee,
at least 30 days but not more than 60 days before a redemption date, an
Officers' Certificate setting forth (i) the clause of this Agreement pursuant to
which the redemption shall occur, (ii) the redemption date, (iii) the principal
amount of Notes to be redeemed and (iv) the redemption price.
3.02 Selection of Notes to Be Redeemed.
If less than all of the Notes are to be redeemed or purchased in an
offer to purchase at any time, the Trustee shall select the Notes to be redeemed
or purchased among the Holders of the Notes in compliance with the requirements
of the principal national securities exchange, if any, on which the Notes are
listed or, if the Notes are not so listed, on a pro rata basis, by lot or in
accordance with any other method the Trustee considers fair and appropriate. In
the event of partial redemption by lot, the particular Notes to be redeemed
shall be selected, unless otherwise provided herein, not less than 30 nor more
than 60 days prior to the redemption date by the Trustee from the outstanding
Notes not previously called for redemption. Further, in the event of a partial
redemption in accordance with Section 3.07 hereof, selection of the Notes or
portions thereof for redemption shall be made by the Trustee only on a pro rata
basis or on as nearly a pro rata basis as is practicable (subject to the
procedures of the DTC), unless such method is otherwise prohibited.
The Trustee shall promptly notify the Company in writing of the Notes
selected for redemption and, in the case of any Note selected for partial
redemption, the principal amount thereof to be redeemed. Notes and portions of
Notes selected shall be in amounts of $1,000 or whole multiples of $1,000;
except that if all of the Notes of a Holder are to be redeemed, the entire
outstanding amount of Notes held by such Holder, even if not a multiple of
$1,000, shall be redeemed. Except as provided in the preceding sentence,
provisions of this Agreement that apply to Notes called for redemption also
apply to portions of Notes called for redemption.
3.03 Notice of Redemption.
At least 30 days but not more than 60 days before a redemption date,
the Company shall mail or cause to be mailed, by first class mail, a notice of
redemption to each Holder whose Notes are to be redeemed at its registered
address.
The notice shall identify the Notes (including the CUSIP number, if
any) to be redeemed and shall state:
(a) the redemption date;
(b) the redemption price;
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(c) if any Note is being redeemed in part, the portion of the
principal amount of such Note to be redeemed and that, after the redemption date
upon surrender of such Note, a new Note or Notes in principal amount equal to
the unredeemed portion shall be issued upon cancellation of the original Note;
(d) the name and address of the Paying Agent;
(e) that Notes called for redemption must be surrendered to the
Paying Agent to collect the redemption price;
(f) that, unless the Company defaults in making such redemption
payment, interest on Notes called for redemption ceases to accrue on and after
the redemption date;
(g) the paragraph of the Notes and/or Section of this Agreement
pursuant to which the Notes called for redemption are being redeemed; and
(h) that no representation is made as to the correctness or
accuracy of the CUSIP number, if any, listed in such notice or printed on the
Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at its expense; provided that the Company
shall have delivered to the Trustee, at least 15 days prior to the date of the
mailing of such notice, an Officers' Certificate requesting that the Trustee
give such notice and setting forth the information to be stated in such notice
as provided in this Section 3.03.
3.04 Effect of Notice of Redemption.
Once a notice of redemption is mailed in accordance with Section 3.03
hereof, Notes called for redemption become irrevocably due and payable on the
redemption date at the redemption price, including any premium plus accrued and
unpaid interest through the redemption date. A notice of redemption may not be
conditional.
3.05 Deposit of Redemption Price.
One Business Day prior to the redemption date, the Company shall
deposit with the Trustee or with the Paying Agent money sufficient to pay the
redemption price of and accrued interest on all Notes to be redeemed on that
date. The Trustee or the Paying Agent shall promptly return to the Company any
money deposited with the Trustee or the Paying Agent by the Company in excess of
the amounts necessary to pay the redemption price of, and accrued interest on,
all Notes to be redeemed.
If the Company complies with the provisions of the preceding paragraph,
on and after the redemption date, interest shall cease to accrue on the Notes or
the portions of Notes called for redemption. If a Note is redeemed on or after
an interest record date but on or prior to the related interest payment date,
then any accrued and unpaid interest shall be paid to the Person in whose name
such Note was registered at the close of business on such record date. If any
Note called for redemption shall not be so paid upon surrender for redemption
because of the failure of the Company to comply with the preceding paragraph,
interest shall be paid on the unpaid principal,
44
from the redemption date until such principal is paid, and to the extent lawful
on any interest not paid on such unpaid principal, in each case at the rate
provided in the Notes and in Section 4.01 hereof.
3.06 Notes Redeemed in Part.
Upon surrender of a Note that is redeemed in part, the Company shall
issue and, upon the Company's written request, the Trustee shall authenticate
for the Holder at the expense of the Company a new Note equal in principal
amount to the unredeemed portion of the Note surrendered.
3.07 Optional Redemption.
(a) The Company shall not have the option to redeem the Notes
pursuant to this Section 3.07 prior to ____________, 2005. On or after [Date of
Month] 2005, the Company shall have the option to redeem the Notes, in whole or
in part, at the redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued and unpaid interest thereon to the applicable
redemption date, if redeemed during the 12-month period beginning on [Date of
Month plus 1 day], 200__ of the years indicated below:
Year Percentage
---- ----------
2005 105.50%
2006 104.50%
2007 101.00%
2008 and thereafter 100.00%
(b) Any redemption pursuant to this Section 3.07 shall be made
pursuant to the provisions of Sections 3.01 through 3.06 hereof.
3.08 Mandatory Redemption.
Neither the Company nor the Guarantors shall be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
ARTICLE IV
AFFIRMATIVE COVENANTS
Each Note Party covenants and agrees that, until payment in full and
satisfaction or discharge of all Obligations hereunder, it will, and it will
cause each of its Subsidiaries to, do all of the following.
45
4.01 Payment of Notes.
The Company shall pay or cause to be paid the principal of, premium, if
any, fees and Additional Interest, if any, and interest on the Notes on the
dates and in the manner provided in this Agreement and in the Notes. Principal,
premium, fees, Additional Interest, if any, and interest shall be considered
paid on the date due if the Paying Agent, if other than the Company, an
Affiliate or Subsidiary thereof, holds as of 12:00 noon Eastern Time on the due
date money deposited by the Company in immediately available funds and
designated for and sufficient to pay all principal, premium, if any, fees,
Additional Interest, if any, and interest then due and the Paying Agent has not
received instructions from the Company, an Affiliate or Subsidiary thereof, not
to make such payment or is not prohibited from paying such payments to the
Holders of the Notes pursuant to this Agreement and the Notes.
The Company shall pay interest on overdue principal at the rate equal
to 2.0% per annum in excess of the then applicable interest rate on the Notes to
the extent lawful; it shall pay interest on overdue installments of interest
(without regard to any applicable grace period) at the same rate to the extent
lawful.
4.02 Maintenance of Office or Agency.
The Company shall maintain in the Borough of Manhattan, The City of New
York, an office or agency (which may be an office of the Trustee or an affiliate
of the Trustee, Registrar or co-registrar) where Notes may be surrendered for
registration of transfer or for exchange and where notices and demands to or
upon the Company in respect of the Notes and this Agreement may be served. The
Company shall give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee.
The Company may also from time to time designate one or more other
offices or agencies where the Notes may be presented or surrendered for any or
all such purposes and may from time to time rescind such designations; provided
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York for such purposes. The Company shall give prompt written
notice to the Trustee of any such designation or rescission and of any change in
the location of any such other office or agency.
The Company hereby designates the Corporate Trust Office of the Trustee
as one such office or agency of the Company in accordance with Section 2.03.
4.03 Accounting System.
The Company shall maintain, and shall cause each of the other Borrowers
and the Subsidiaries of each Borrower to maintain, a system of accounting that
enables such Persons to produce financial statements in accordance with GAAP and
maintain records pertaining to the Collateral that contain information as from
time to time may be required hereunder.
46
4.04 Financial Statements, Reports, Certificates.
The Company shall deliver to the Trustee:
(a) as soon as available, but in any event within 45 days
after the end of each month during each of the Company's fiscal years,
(i) a Company prepared Consolidated balance
sheet, income statement, and statement of cash flow covering
the Company's and its Subsidiaries' operations during such
month and the fiscal year to date, together with a comparison
of such financial statements to (A) Company's Projections (as
defined in the New Credit Agreement) delivered prior to the
Issue Date or pursuant to Section 4.04(c) and (B) the
Consolidated balance sheet, income statement, and statement of
cash flow covering Company's and its Subsidiaries' operations
for such corresponding period in the immediately preceding
fiscal year,
(ii) a company prepared schedule detailing
Company's Consolidated EBITDA as of the end of each month for
the 13-month period then ended,
(iii) a certificate signed by a chief financial
officer or a principal accounting officer of the Company to
the effect that:
(A) the financial statements and other
financial information delivered hereunder have been
prepared in accordance with GAAP (except for the lack
of footnotes and being subject to year-end audit
adjustments) and fairly present in all material
respects the financial condition of the Company and
its Subsidiaries,
(B) the representations and warranties
of Borrowers contained in the New Credit Agreement
and the other Loan Documents (as defined in the New
Credit Agreement) are true and correct in all
material respects on and as of the date of such
certificate, as though made on and as of such date
(except to the extent that such representations and
warranties relate solely to an earlier date), and
(C) there does not exist any condition
or event that constitutes a Default or Event of
Default (or, to the extent of any non-compliance,
describing such non-compliance as to which he or she
may have knowledge and what action the Note Parties
have taken, are taking, or propose to take with
respect thereto); and
(iv) for each month that is the date on which a
financial covenant in Section 5.19 is to be tested, a
Compliance Certificate (as defined in the New Credit
Agreement) demonstrating, in reasonable detail, compliance at
the end of such period with the applicable financial covenants
contained in Section 5.19, together with a reconciliation of
the company prepared Consolidated balance sheet, income
statement, and statement of cash flow for Company and its
47
Subsidiaries for the 3-month period then ended to the audited
financial statements contained in the 4 most recent Form 10-Q
quarterly reports and the most recent Form 10-K annual report
filed by Company and its Subsidiaries,
(b) as soon as available, but in any event within 120
days after the end of each of Company's fiscal years,
(i) financial statements of the Company and its
Subsidiaries for each such fiscal year, audited by independent
certified public accountants reasonably acceptable to Trustee
and certified, without any qualifications, by such accountants
to have been prepared in accordance with GAAP (such audited
financial statements to include a balance sheet, income
statement, and statement of cash flow and, if prepared, such
accountants' letter to management), and
(ii) a certificate of such accountants addressed
to the Trustee stating that such accountants do not have
knowledge of the existence of any Default or Event of Default
under Section 6.01,
(c) as soon as available, but in any event within 30 days
prior to the start of each of Company's fiscal years, copies of Company's
Projections (as defined in the New Credit Agreement), in form and substance
(including as to scope and underlying assumptions) reasonably satisfactory to
the Bank Lenders, in their Permitted Discretion (as defined in the New Credit
Agreement), for the forthcoming 3 years, year by year, and for the forthcoming
fiscal year, month by month, certified by the chief financial officer of Company
as being such officer's good faith best estimate of the financial performance of
Company and its Subsidiaries on a Consolidated basis during the period covered
thereby,
(d) if, when and to the extent filed by any Note Party
with the SEC or any other Governmental Authority,
(i) Form 10-Q quarterly reports, Form 10-K
annual reports, and Form 8-K current reports,
(ii) any other filings made by any Note Party
with the SEC,
(iii) copies of Borrowers' federal income tax
returns, and any amendments thereto, filed with the IRS, and
(iv) any other information that is provided by
the Company to its shareholders generally,
(e) if and when filed by any Note Party and if requested
by Trustee, reasonably satisfactory evidence of payment of applicable excise and
property taxes in each jurisdictions in which (i) any Note Party conducts
business, owns real property or is required to pay any such excise or real
property tax, (ii) where any Note Party's failure to pay any such applicable
excise or property tax would result in a Lien on the properties or assets of any
Note Party, or (iii) where any Note Party's failure to pay any such applicable
excise tax reasonably could be expected to result in a Material Adverse Change,
48
(f) promptly after the commencement thereof, notice of
all actions, suits or proceedings brought by or against any Note Party before
any Governmental Authority that, if determined adversely to such Note Party,
could reasonably be expected to result in a Material Adverse Change,
(g) as soon as a Borrower has knowledge of any event or
condition that constitutes a Default or an Event of Default, notice thereof and
a statement of the curative action that Borrowers propose to take with respect
thereto and annually a statement regarding compliance with this Agreement,
(h) as soon as a Borrower has actual knowledge of any
event or condition that constitutes a default or an event of default under the
New AMERCO Note Documents, the New Credit Agreement or the Loan Documents (as
defined in the New Credit Agreement), or any Funded Debt (including, without
limitation, any TRAC Lease Transaction, the PMCC Like Kind Exchange Lease or the
PMCC Leveraged Lease) or any notice, call, default of event of default under any
Support Party Agreement, notice thereof and a statement of the curative action
that Borrowers or Guarantors, as applicable, propose to take with respect
thereto,
(i) such information as may, from time to time, be
necessary to comply with any applicable provision of TIA Section 314(a), and
(j) if requested by the Trustee, such information
provided to the Bank Lenders' Agent relating to the Collateral pursuant to
Section 6.2 of the New Credit Agreement.
To satisfy the delivery requirements, the Company and the Guarantors,
if applicable, may file or post electronically such information required to be
delivered to the Trustee and the Holders of the Notes, if applicable, pursuant
to this Section 4.04 and Section 4.05 in a manner and method mutually acceptable
to the Company and provide for the Trustee's access to such information.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable therefrom, including compliance with any of the Company's covenants
hereunder.
The Trustee shall not disclose any material, non-public information
(all information received pursuant to this Section 4.04 or pursuant to other
provisions of this Agreement and identified as such in writing by the Company on
the face thereof, except for information received pursuant to Section
4.04(a)(iii), Section 4.04(b), Section 4.04(d), Section 4.04(g) and Section
4.04(i)) received from any Note Party to a Holder of the Notes unless such
Holder enters into a standstill and confidentiality agreement in a form and
substance satisfactory to the Company and the Trustee, and which shall provide
for indemnification by the recipients of such information of the Trustee against
any misuse or improper disclosure of such information.
4.05 Guarantor Reports.
The Company shall cause each Guarantor to deliver its annual financial
statements at the time when the Company provides its audited financial
statements to the Trustee, but only to the
49
extent such Guarantor's financial statements are not consolidated with the
Company's annual financial statements and copies of all federal income tax
returns as soon as the same are available and in any event no later than 30 days
after the same are required to be filed by law.
4.06 Maintenance of Properties.
The Company shall, and the Company shall cause each of the other
Borrowers and the Subsidiaries of each Borrower to, maintain and preserve all of
its properties which are necessary or useful in the proper conduct to its
business in good working order and condition, ordinary wear and tear excepted,
and comply at all times with the provisions of all leases to which it is a party
as lessee, so as to prevent any loss or forfeiture thereof or thereunder.
4.07 Taxes.
The Borrowers shall, and shall cause each of its Subsidiaries to, pay
in full all assessments and taxes, whether real, personal, or otherwise, due or
payable by, or imposed, levied, or assessed against any Borrower, any Subsidiary
of a Borrower or any of their assets to be paid in full, not less than 30 days
before the earlier of (a) delinquency, or (b) the imposition of any additional
amounts, fines or penalties or (c) before the expiration of any extension
period, except to the extent that the validity of such assessment or tax shall
be the subject of a Permitted Protest. The Company shall, and shall cause each
of the other Borrowers and the Subsidiaries of each Borrower to, make timely
payment or deposit of all tax payments and withholding taxes required of it by
any Borrower (as defined in the New Credit Agreement) or its Subsidiaries under
Applicable Laws, including the Canadian Income Tax Act, Statutory Lien Payments,
those laws concerning F.I.C.A., F.U.T.A., state or provincial disability, and
local, state, provincial and federal income taxes.
4.08 Insurance.
(a) The Company shall, and shall cause each of the other Borrowers
and the Subsidiaries of each Borrower to, at their expense, maintain insurance
respecting their respective assets wherever located, covering loss or damage by
fire, theft, explosion, flood (with respect to any property or assets located in
a flood zone), earthquake (in the event the probable maximum loss with respect
to such property or assets is equal to or greater than 20), and all other
hazards and risks as ordinarily are insured against by other Persons engaged in
the same or similar businesses. The Company also shall (and shall cause the
other Borrowers and the Subsidiaries of each Borrower to) maintain business
interruption, public liability, and product liability insurance, as well as
insurance against larceny, embezzlement, and criminal misappropriation. All such
policies of insurance shall be in such amounts as are reasonably satisfactory to
Bank Lenders' Agent and the Trustee. Borrowers shall deliver copies of all such
policies to Bank Lenders' Agent and the Trustee with a satisfactory lender's
loss payable endorsement naming Bank Lenders' Agent and the Trustee as sole loss
payee or additional insured, as appropriate. Each policy of insurance or
endorsement shall contain a clause requiring the insurer to give not less than
30 days prior written notice to Bank Lenders' Agent and the Trustee in the event
of cancellation of the policy for any reason whatsoever.
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(b) The Company shall give Bank Lenders' Agent and the Trustee
prompt notice of any loss in excess of $100,000 for Vehicles or other personal
property covered by such insurance and any loss in excess of $500,000 for Real
Property covered by insurance. Bank Lenders' Agent shall have the exclusive
right to adjust any losses payable under any such insurance policies in excess
of $500,000 (or in any amount during the existence of an Event of Default),
without any liability to Borrowers whatsoever in respect of such adjustments.
Any monies received as payment for any loss under any insurance policy mentioned
above (other than liability insurance policies) or as payment of any award or
compensation for condemnation or taking by eminent domain, shall be paid over to
Bank Lenders' Agent and shall be applied at the option of the Required Lenders
either to the prepayment of the Obligations (as defined in the New Credit
Agreement) or shall be disbursed to the Company under staged payment terms
reasonably satisfactory to the Required Lenders for application to the cost of
repairs, replacements, or restorations. Any such repairs, replacements, or
restorations shall be effected with reasonable promptness and shall be of a
value at least equal to the value of the items or property destroyed prior to
such damage or destruction.
(c) The Note Parties shall not take out separate insurance
concurrent in form or contributing in the event of loss with that required to be
maintained under this Section 4.08, unless Bank Lenders' Agent and the Trustee
are included thereon as named insureds with the loss payable to Bank Lenders'
Agent and the Trustee under a lender's loss payable endorsement or its
equivalent. The Company immediately shall notify Bank Lenders' Agent and the
Trustee whenever such separate insurance is taken out, specifying the insurer
thereunder and full particulars as to the policies evidencing the same, and
copies of such policies promptly shall be provided to Bank Lenders' Agent and
the Trustee.
(d) The Note Parties shall maintain their insurance program with
respect to the Vehicles as in effect on the Issue Date with RepWest or, upon the
consent of Bank Lenders' Agent, which consent shall not be unreasonably
withheld, with such other insurer as may be agreed upon by Borrowers and Bank
Lenders' Agent so long as the terms of such replacement self-insurance program
are reasonably similar to the insurance program with RepWest as of the Issue
Date.
4.09 Location of Equipment.
The Note Parties shall store the Equipment of Note Parties only at the
Real Property and the locations of the U-Haul Dealers named on the Dealer List,
excluding (a) Vehicles in-transit from one U-Haul Dealer location to another
U-Haul Dealer location, (b) Vehicles that have been leased in the ordinary
course of the Borrowers' and Guarantors' businesses and consistent with their
past practices anywhere in the United States and Canada, and (c) Vehicles
located at new U-Haul Dealers added subsequent to the most recently provided
Dealer List. The Company shall, or shall cause the other Borrowers and the
Guarantors to, update the Reservation Management System on a regular basis
consistent with their past practices and shall grant the Trustee access to such
system upon the Trustee's request.
4.10 Compliance with Laws.
The Company shall, and shall cause each of the other Borrowers and the
Subsidiaries of each Borrower to, comply with the requirements of all Applicable
Laws, rules, regulations, and
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orders of any Governmental Authority, including the Fair Labor Standards Act and
the Americans With Disabilities Act, other than laws, rules, regulations, and
orders the non-compliance with which, individually or in the aggregate, could
not reasonably be expected to result in a Material Adverse Change.
4.11 Leases.
The Company shall pay when due, or shall cause the other Borrowers or
the Guarantors to pay when due, all rents and other amounts payable under any
leases to which any Borrower or any Guarantor is a party or by which the
Borrowers' or Guarantor's properties and assets are bound, unless such payments
are the subject of a Permitted Protest.
4.12 Existence.
Except as provided by Section 5.03, the Company shall, and shall cause
each of the other Borrowers and Guarantors to, at all times preserve and keep in
full force and effect each Borrower's and each Guarantor's valid existence and
good standing and any rights, licenses, permits and franchises material to the
Borrower's and Guarantors' businesses.
4.13 Environmental.
The Note Parties shall keep any property either owned or operated by
any Note Party free of any Environmental Liens or post bonds or other financial
assurances sufficient to satisfy the obligations or liability evidenced by such
Environmental Liens, (b) comply, in all material respects, with Environmental
Laws and provide to the Trustee documentation of such compliance which the
Trustee reasonably requests, (c) promptly notify the Trustee of any known
release of a Hazardous Material of any reportable quantity from or onto property
owned or operated by any Note Party and take any Remedial Actions required to
xxxxx said release or otherwise to come into compliance with applicable
Environmental Law, and (d) promptly, but in any event within 5 days of its
receipt thereof, provide the Trustee with written notice of the receipt of any
of the following: (i) notice that an Environmental Lien has been filed against
any of the real or personal property of any Note Party, (ii) commencement of any
Environmental Action or notice that an Environmental Action will be filed
against any Note Party, and (iii) notice of a violation, citation, or other
administrative order under any Environmental Law which reasonably could be
expected to result in a Material Adverse Change.
4.14 Real Estate.
If at any time after the Issue Date, the Company or any Guarantor
acquires any fee interest in Real Property with a fair market valuation in
excess of $250,000, the Company shall, or shall cause such Guarantor to,
promptly execute, deliver and record, a Mortgage (second only to the first
priority security interests granted to Bank Lenders' Agent pursuant to the New
Credit Agreement) in favor of the Trustee covering such Real Property interest,
in form and substance reasonably satisfactory to the Trustee, and provide: (a)
the Trustee with a Mortgage Policy insuring the Lien (second in priority only to
the first priority security interests granted to Bank Lenders' Agent pursuant to
the New Credit Agreement) of said Mortgage in such Real Property encumbered
thereby, in an amount reasonably acceptable to the Trustee and subject only to
Permitted Liens and to such other exceptions as are reasonably satisfactory to
the Trustee, (b) a
52
satisfactory legal description of such property, (c) an opinion from special
counsel to such Person (in form and substance reasonably acceptable to Trustee)
stating that, in the opinion of such counsel, all action has been taken with
respect to the recording, registering, filing and perfection of the Mortgage
necessary to make effective the Lien (second in priority only to the first
priority security interests granted to Bank Lenders' Agent pursuant to the New
Credit Agreement) intended to be created by the Mortgage, (d) to the extent
necessary under Applicable Laws, provide Uniform Commercial Code financing
statements covering fixtures, in each case appropriately completed and duly
executed, for filing in the appropriate county land office and (e) evidence that
such Person shall have paid to the applicable title insurance company all
expenses of such title insurance company in connection with the issuance of such
reports and in addition shall have paid to such title insurance company an
amount equal to the recording and stamp taxes (including mortgage recording
taxes), if any, payable in connection with recording such Mortgages in the
appropriate county land offices. In addition, upon Trustee's request, such
Person shall deliver to the Trustee copies of all environmental reports and
other documents delivered to Bank Lenders' Agent with respect to such Real
Property.
4.15 Reorganization Plan.
The Note Parties shall and shall cause each of their Subsidiaries to
comply in all material respects with the provisions of the Reorganization Plan
applicable to them.
4.16 Vehicles.
(a) The Company shall, or shall cause the other Borrowers and the
Subsidiaries of each Borrower to, (i) deposit all Certificates of Title into a
segregated, secured location at the Company's chief executive office located at
2727 North Central, Phoenix, Arizona, the access to which shall be limited to
the Bank Lenders' Agent, its representatives and agents, Xxxxxxx Xxxxxx and Xxxx
Xxxxxx and such Certificates of Title and such Persons shall be covered by a
fidelity insurance policy naming the Bank Lenders' Agent and the Trustee as loss
payee or a bond endorsed to the Bank Lenders' Agent and the Trustee, in either
case in form and substance reasonably satisfactory to the Bank Lenders' Agent
(which shall include coverage of at least $5,000,000), and (ii) timely pay all
fees required by the States of Alaska, Arizona and Hawaii, as applicable, with
respect to such Vehicle registrations and the issuances of the corresponding
Certificates of Title.
(b) After the Issue Date, the Company shall, and shall cause the
other Borrowers, the Subsidiaries of each Borrower and the Guarantors to, (i)
follow the procedures set forth in Section 5.25(a), Section 5.25(b) and Section
5.25(c) of the New Credit Agreement, as applicable, and Section 4.16(a) hereof
with respect to any Vehicle (excluding any trailer) acquired by any Borrower or
a Guarantor after the Issue Date that is not intended to be transferred into a
TRAC Lease Transaction within 130 days of the acquisition of such Vehicle, and
(ii) pursuant to the laws of the States of Alaska, Arizona and Hawaii, as
applicable, timely renew all registrations and Certificates of Title held by the
Borrowers with respect to the Vehicles.
(c) The Note Parties hereby acknowledge and agree that (i) they
shall hold and maintain all Certificates of Title solely on behalf of, and as an
attorney-in-fact and agent for, the Bank Lenders' Agent and the Trustee, (ii)
the Bank Lenders' Agent's and the Trustee's security
53
interest in, Liens on, and all rights and remedies with respect to the Vehicles
and the Certificates of Title shall remain valid and enforceable at all times,
and (iii) during the existence of an Event of Default, and the Bank Lenders'
Agent is not satisfied with the results of any inspection under Section 4.6(b)
of the New Credit Agreement, the Company shall, or shall cause the other
Borrowers and the Guarantors to, promptly comply with any request or direction
by Bank Lenders' Agent to deliver the Certificates of Title to Bank Lenders'
Agent or such other Person or location as Bank Lenders' Agent may direct in its
Permitted Discretion (as defined in the New Credit Agreement).
Execution of this Agreement shall be evidence of the Company's and each
Guarantor's consent for the Lien of the Bank Lenders' Agent and the Trustee on
the Vehicles indicated on the Certificates of Title.
4.17 Cash Management Agreements.
The Company shall, and shall cause the other Borrowers and the
Guarantors, to comply with Section 2.7 of the New Credit Agreement and any Cash
Management Agreements entered into pursuant to such provision, and if the New
Credit Agreement is ever terminated, extinguished or otherwise not in force,
then Section 2.7 thereof shall be incorporated herein with the term "Agent"
replaced with the term "Trustee" mutatis mutandis.
4.18 Credit Card Agreements.
The Company shall, and shall cause the other Borrowers and Guarantors,
to comply with the Credit Card Agreements (as defined in the New Credit
Agreement), and if the New Credit Agreement is ever terminated, extinguished or
otherwise not in force, then the Company shall, and shall cause the other
Borrowers and Guarantors, to use their best efforts to effect new credit card
agreements between the Trustee and the credit card processors of Borrowers and
Guarantors in substantially similar form and substance as the Credit Card
Agreements required under the New Credit Agreement.
4.19 Disclosure Updates.
Promptly and in no event later than 5 Business Days after obtaining
knowledge thereof, notify the Trustee if any written information, exhibit, or
report furnished to the Trustee contained any untrue statement of a material
fact or omitted to state any material fact necessary to make the statements
contained therein not misleading in light of the circumstances in which made.
The foregoing notwithstanding, any notification pursuant to the foregoing
provision will not cure or remedy the effect of the prior untrue statement of a
material fact or omission of any fact nor shall any such notification have the
effect of amending or modifying this Agreement.
4.20 Material Contracts; Affiliate Contracts.
In the event any Borrower or Guarantor shall enter into any Material
Contract or, subject to Section 5.14, any new Affiliate Contract, after the
Issue Date, deliver to the Trustee, within 30 days of entering into such
Material Contract or Affiliate Contract, an updated Schedule M-1 or Schedule A-1
to the New Credit Agreement, as applicable, reflecting the addition of such
Material Contract or Affiliate Contract, together with a copy of such executed
Material Contract
54
or Affiliate Contract. Each Borrower and Guarantor shall also provide the
Trustee with an executed copy of any contract with any of SAC Holding, SSI, PMSR
or PM Preferred executed after the Issue Date.
4.21 Employee Benefits.
(a) (i) Promptly, and in any event within 10 Business Days after
any Borrower or any Subsidiary of a Borrower knows or should know that an ERISA
Event (as defined in the New Credit Agreement) has occurred that reasonably
could be expected to result in a Material Adverse Change, deliver to the Trustee
a written statement of the chief financial officer of the Company describing
such ERISA Event (as defined in the New Credit Agreement) and any action that is
being taking with respect thereto by any such Borrower, any such Subsidiary or
ERISA Affiliate, and any action taken or threatened by the IRS, Department of
Labor, or PBGC, and such Borrower or such Subsidiary, as applicable, shall be
deemed to know all facts known by the administrator of any Benefit Plan of which
it is the plan sponsor, (ii) promptly, and in any event within 3 Business Days
after the filing thereof with the IRS, deliver to the Trustee a copy of each
funding waiver request filed with respect to any Benefit Plan and all
communications received by any Borrower, any Subsidiary of a Borrower or, to the
knowledge of such Borrower, any ERISA Affiliate with respect to such request,
and (iii) promptly, and in any event within 3 Business Days after receipt by any
Borrower, deliver to the Trustee any Subsidiary of a Borrower or, to the
knowledge of any Borrower, any Subsidiary, any ERISA Affiliate, of the PBGC's
intention to terminate a Benefit Plan or to have a trustee appointed to
administer a Benefit Plan, copies of each such notice.
(b) Cause to be delivered to the Trustee, upon the Trustee's
request, each of the following: (i) a copy of each Benefit Plan (or, where any
such plan is not in writing, complete description thereof) (and if applicable,
related trust agreements or other funding instruments) and all amendments
thereto, all written interpretations thereof and written descriptions thereof
that have been distributed to employees or former employees of any Borrower or
its Subsidiaries; (ii) the most recent determination letter issued by the IRS
with respect to each Benefit Plan; (iii) for the 3 most recent plan years,
annual reports on Form 5500 Series required to be filed with any governmental
agency for each Benefit Plan; (iv) all actuarial reports prepared for the last 3
plan years for each Benefit Plan; (v) a listing of all Multiemployer Plans, with
the aggregate amount of the most recent annual contributions required to be made
by any Borrower, any Subsidiary of a Borrower, or any ERISA Affiliate to each
such plan and copies of the collective bargaining agreements requiring such
contributions; (vi) any information that has been provided to any Borrower, any
Subsidiary of a Borrower or any ERISA Affiliate regarding withdrawal liability
under any Multiemployer Plan; and (vii) the aggregate amount of the most recent
annual payments made to former employees of any Borrower or its Subsidiaries
under any Retiree Health Plan (as defined in the New Credit Agreement).
55
ARTICLE V
NEGATIVE COVENANTS
Each Note Party covenants and agrees that, until payment in full and
satisfaction or discharge of all Obligations hereunder, it will not, and will
not permit any of its Subsidiaries to, do any of the following:
5.01 Indebtedness, Etc.
Create, incur, assume, suffer to exist, guarantee, or otherwise become
or remain, directly or indirectly, liable with respect to any Indebtedness,
except:
(a) Indebtedness evidenced by this Agreement and the Notes;
(b) Indebtedness under the New Credit Agreement;
(c) Indebtedness in existence as of the Issue Date and obligations
to make payments required under the Reorganization Plan;
(d) (i) Purchase Money Indebtedness and Capitalized Lease
Obligations (other than Capital Leases of the type set forth in clause (ii) of
this Section 5.01(d)) incurred after the Issue Date in an aggregate amount not
to exceed $30,000,000; and (ii) Capital Leases, to the extent such Capital
Leases arise out of the treatment of any of the Synthetic Leases (including any
refinancings, in whole or in part, thereof) as Capital Leases in accordance with
the requirements of GAAP;
(e) Indebtedness under the New AMERCO Notes;
(f) guarantees permitted under Section 5.06;
(g) Indebtedness comprising Permitted Investments;
(h) Indebtedness with respect to letters of credit issued by a
party other than the Issuing Lender (as defined in the New Credit Agreement) and
secured by cash collateral in an aggregate amount not to exceed $3,000,000 at
any time; and
(i) refinancings, renewals, or extensions of Indebtedness
permitted under clauses (c) and (d) of this Section 5.01 (and continuance or
renewal of any Permitted Liens associated therewith) (specifically excluding the
New AMERCO Notes), so long as: (i) the terms and conditions of such
refinancings, renewals, or extensions do not materially impair the prospects of
repayment of the Obligations by the Borrowers or materially impair the
Borrower's creditworthiness, (ii) such refinancings, renewals, or extensions do
not result in an increase in the principal amount (other than capitalized fees
and, with respect to any refinancing of the Synthetic Leases, to the extent they
are treated as Capital Leases in accordance with GAAP, any increases directly
attributable to improvements on or to the Real Property covered by such
Synthetic Leases) of, or interest rate beyond a prevailing market rate with
respect to, the Indebtedness so refinanced, renewed, or extended, (iii) such
refinancings, renewals, or extensions do not result in a shortening
56
of the average weighted maturity of the Indebtedness so refinanced, renewed, or
extended, (other than such changes in the average weighted maturity of the
Synthetic Leases, to the extent they are treated as Capital Leases in accordance
with GAAP, resulting from the refinancing, in whole or in part, of the Synthetic
Leases pursuant to the WPCarey Transaction or other refinancing transaction in
form and substance reasonably satisfactory to Bank Lenders' Agent), nor are they
on terms or conditions, that, taken as a whole, are materially more burdensome
or restrictive to the applicable Borrower, and (iv) if the Indebtedness that is
refinanced, renewed, or extended was subordinated in right of payment to the
Obligations, then the terms and conditions of the refinancing, renewal, or
extension Indebtedness must include subordination terms and conditions that are
at least as favorable to the Holders of the Notes as those that were applicable
to the refinanced, renewed, or extended Indebtedness.
5.02 Liens.
Create, incur, assume, or permit to exist, directly or indirectly, any
Lien on or with respect to any of its assets, of any kind, whether now owned or
hereafter acquired, or any income or profits therefrom, except for Permitted
Liens.
5.03 Restrictions on Fundamental Changes.
(a) Enter into any merger, consolidation, reorganization, or
recapitalization, or reclassify its Stock (other than in connection with the
Reorganization Plan), except that, so long as no Default or Event of Default
then exists hereunder or would be caused thereby and the Trustee receives
written notice of any such merger at least 30 days prior to the effectiveness
thereof (provided that the Trustee shall have no duty to act upon receipt of
such notice except as expressly provided in clause (y) below) if such merger
involves a Note Party: (i) any Subsidiary that is not a Note Party may merge
into any other Subsidiary that is not a Note Party, and (ii) any Note Party
(other than the Company, U-Haul or AREC) may merge into any other Note Party
(other than the Company, U-Haul or AREC); provided, however, (x) the Person
surviving such merger shall be a Note Party, and (y) the Trustee shall have
received, upon the effectiveness of such merger, such Note Documents, title
insurance and opinions of counsel as the Trustee may reasonably request to
continue or insure the priority and perfection of the Trustee's Liens on the
Collateral or the obligations of any such Note Party under any of the Note
Documents, including, without limitation, the documents required by Section
5.13(b) hereof. Notwithstanding the foregoing, a Subsidiary that is not an
Insurance Subsidiary shall not merge with any Insurance Subsidiary.
(b) Liquidate, wind up, or dissolve any Borrower or any Borrower's
Subsidiaries (or suffer any liquidation or dissolution), except that the Company
may liquidate, dissolve or wind up any Subsidiary (other than AREC and U-Haul or
any Insurance Subsidiary) so long as (i) no Default or Event of Default then
exists hereunder or would be caused thereby and the Trustee receives written
notice of any such action at least 30 days prior to the effectiveness thereof
(provided that the Trustee shall have no duty to act upon receipt of such notice
except as expressly provided in clause (iii) below), (ii) the assets of such
Subsidiary are transferred to another Subsidiary of the Company or, if such
Subsidiary is a Note Party, to another Note Party and such assets remain subject
to a perfected Lien (second in priority only to the first priority security
interests granted to Bank Lenders' Agent pursuant to the New Credit Agreement
and
57
subject to Permitted Liens) under a Note Document after such transfer, and (iii)
the Trustee shall have received such Note Documents, title insurance and
opinions of counsel as the Trustee may request to continue or insure the
priority and perfection of the Trustee's Liens on such assets or the obligations
of any such Subsidiary under any of the Note Documents, including, without
limitation, the documents required by Section 5.13(b) hereof. Notwithstanding
the foregoing, a dissolving or liquidating Subsidiary that is not an Insurance
Subsidiary shall not transfer assets to any Insurance Subsidiary.
5.04 Disposal of Assets.
Other than Permitted Dispositions, convey, sell, lease, license,
assign, transfer, or otherwise dispose of, in one transaction or a series of
transactions, any of the assets of any Borrower or any Guarantor. To the extent
a sale or other disposition is permitted by clause (k) of the definition of
Permitted Dispositions and if an Authorized Officer of Company certifies in
writing to the Trustee that (a) the sale is permitted under this Section 5.04,
(b) the Vehicles identified (by vehicle identification number, make and model)
in such certification are to be sold in connection with a TRAC Lease Transaction
and (c) such Vehicles are to be sold on a date (each such date, a "Sale Date")
no later than 130 days from the date of such certification, Trustee's Lien on
such Vehicles shall be deemed to be released 1 Business Day prior to such sale;
provided, however, that in the event one or more of such Vehicles are not sold
in connection with a TRAC Lease Transaction within 5 Business Days of the Sale
Date indicated in such certification, the Vehicles that are not so sold shall
become subject to a Lien (second in priority only to the first priority security
interests granted to the Bank Lenders' Agent pursuant to the New Credit
Agreement) in favor of the Trustee on the fifth Business Day following such Sale
Date and the Company shall, or shall cause the other Borrowers or Guarantors, as
applicable, to comply immediately with the requirements of this Agreement with
respect to such Vehicles, including, without limitation, Section 4.16(a) hereof.
The Note Parties shall not, without the prior written consent of the Holders as
required by Article IX hereof, (x) transfer, sell or otherwise dispose of any of
the Vehicles or the Certificates of Title except in conjunction with a Permitted
Disposition hereunder, or (y) relocate the Certificates of Title.
5.05 Change Name.
Change the Company's or any Guarantor's name, FEIN, Organizational ID
Number, corporate structure, or identity, or add any new fictitious name, or
reincorporate or reorganize itself under the laws of any other jurisdiction;
provided, however, that any Borrower or any Guarantor may change its name upon
at least 30 days' prior written notice by the Company to the Trustee of such
change and so long as, at the time of such written notification, the Company
and/or such Guarantor provides or authorizes the filing of any Uniform
Commercial Code financing statements or fixture filings necessary to perfect and
continue perfected the Trustee's Liens.
58
5.06 Guarantee.
Guarantee or otherwise become in any way liable with respect to the
obligations of any third Person (including the Insurance Subsidiaries) except by
endorsement of instruments or items of payment for deposit to the account of
Company or Guarantors or which are transmitted or turned over to the Trustee,
except for (a) guarantee obligations of the Company existing as of Issue Date,
(b) guarantee obligations of the Company in connection with the Reorganization
Plan, (c) guarantee obligations of the Company with respect to the Support Party
Agreements, (d) guarantee obligations with respect to TRAC Lease Transactions in
the ordinary course of business, to the extent the obligations thereunder are
permitted by Section 5.01 hereof and are consistent with past practices, (e)
guarantee obligations of a Note Party pursuant to any refinancing, renewal or
extension of Indebtedness permitted pursuant to Section 5.01(h) hereof, and (f)
guarantee obligations of a Note Party with respect to the obligations of any
other Note Party incurred in the ordinary course of business, to the extent such
guaranteed obligation is permitted to be incured by such guaranteed Note Party
hereunder and is consistent with past practices.
5.07 Nature of Business.
Make any change in the principal nature of any Borrower's (as defined
in the New Credit Agreement) or any Subsidiary's business.
5.08 Prepayments and Amendments.
(a) Prepay, redeem, defease, purchase, or otherwise acquire any
Indebtedness of any Note Party, other than (i) the DIP Obligations; (ii) as
required by the Confirmation Order; (iii) Obligations (as defined in the New
Credit Agreement) and the other Loan Documents (as defined in the New Credit
Agreement) in accordance with the terms thereof; (iv) Obligations in accordance
with this Agreement; (v) in connection with a refinancing permitted by Section
5.01(i); (vi) prepayments of the Indebtedness under the New AMERCO Notes so long
as no Event of Default has occurred and is continuing or would result therefrom,
(1) from the Net Proceeds from the monetization or sale of the Excluded Assets
or (2) in all other circumstances, so long as (A) the aggregate amount of such
prepayments in any fiscal year, together with the aggregate amount of dividends
paid in arrears in such fiscal year by the Borrowers pursuant to clause (c) of
Section 5.11, shall not, in the aggregate, exceed the ECF Carry Forward Amount,
if any, then in existence, and (B) on the date of such prepayment Borrowers are
in compliance with the Excess Availability Test; (vii) the scheduled payments of
principal and interest due under the Synthetic Leases as such principal payments
are set forth on Schedule 7.8 of the New Credit Agreement (including any
refinancings, in whole or in part, thereof); or (viii) other Indebtedness with
the consent of the Required Lenders; or
(b) Except in connection with a refinancing permitted by Section
5.01(i), directly or indirectly, amend, modify, alter, increase, or change any
of the terms or conditions of any agreement, instrument, document, indenture, or
other writing evidencing or concerning Indebtedness permitted under Section
5.01.
59
(c) Amend, modify or otherwise change its Governing Documents,
including, without limitation, by the filing or modification of any certificate
of designation, or any agreement or arrangement entered into by it with respect
to any of its capital Stock (including any shareholders' agreement), or enter
into any new agreement with respect to any of its capital Stock, except as
appropriate to accomplish a transaction permitted pursuant to Section 5.03(a) or
Section 5.03(b), or (ii) amend, modify or otherwise change any Material Contract
(other than a Material Contract, the amendment of which is governed by clause
(b) above) except any such amendments, modifications or changes or any such new
agreements or arrangements pursuant to this paragraph (c) that, either
individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Change, or (iii) amend, modify or otherwise change any
Affiliate Contract or any contract with SAC Holding, SSI, PMSR or PM Preferred
except in compliance with Section 5.14 hereof.
5.09 Change of Control.
Cause, permit, or suffer, directly or indirectly, any Change of
Control, other than in connection with the consummation of the Reorganization
Plan on the Effective Date.
5.10 Ownership of Certain Assets.
Cause, permit, or suffer any Subsidiary, other than Borrowers and
U-Haul (Canada), to own any parcel of Real Property Collateral or any Vehicle
included in the Collateral unless (a) Company provides Bank Lenders' Agent and
the Trustee with 10 days' prior written notice of such intended ownership, and
(b) such Subsidiary becomes a borrower under the New Credit Agreement and
delivers to Bank Lenders' Agent and the Trustee any additional documents
requested by Bank Lenders' Agent and the Trustee in their Permitted Discretion
(as defined in the New Credit Agreement) to perfect the Bank Lenders' Agents'
first priority Lien and Trustee's Lien (second in priority only to the first
priority security interests granted to the Bank Lenders' Agent pursuant to the
New Credit Agreement), respectively, on such assets.
5.11 Distributions.
Make any distribution or declare or pay any dividends (in cash or other
property, other than common Stock) on, or purchase, acquire, redeem, or retire
any of any Note Party's Stock, of any class, whether now or hereafter
outstanding, except, so long as no Event of Default has occurred and is
continuing hereunder or would result therefrom, distributions or declarations
and payments of dividends: (a) by a Note Party to another Note Party, (b) on the
preferred stock of the Company, based on the accrual of dividends subsequent to
the Issue Date (including, without limitation, the payment of dividends in an
aggregate amount not to exceed $3,335,000 paid on account of dividends on the
preferred stock of the Company accrued for the period ended February 29, 2004),
in an aggregate amount not to exceed $13,000,000 in any fiscal year, so long as
at the time of payment of any such dividend, Borrowers are in compliance with
the Excess Availability Test, and (c) on the preferred stock of the Company
based on the accrual of dividends prior to the Issue Date (including, without
limitation, the payment of dividends in an aggregate amount not to exceed
$3,335,000 paid on account of dividends on the preferred stock of the Company
accrued prior to or for the period ended November 30, 2003), so long as (i) the
aggregate amount of such dividends in arrears shall not exceed the greater of
(x) $19,600,000
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paid in the aggregate on or after the Issue Date or (y) together with the
aggregate amount of any prepayments paid by Borrowers in such fiscal year
pursuant to clause (2) of Section 5.08(a)(v), the ECF Carry Forward Amount, if
any, then in existence, and (ii) at the time of payment of any such dividend in
arrears, Borrowers are in compliance with the Excess Availability Test.
5.12 Accounting Methods.
Modify or change their fiscal year from a year ending March 31 or their
method of accounting (other than as may be required to conform to GAAP) or enter
into, modify, or terminate any agreement currently existing, or at any time
hereafter entered into with any third party accounting firm or service bureau
for the preparation or storage of the Note Parties' accounting records without
said accounting firm or service bureau agreeing to provide Trustee information
regarding the Collateral or Borrowers' and their Subsidiaries' financial
condition.
5.13 Formation of Subsidiaries; Investments.
(a) Except for Permitted Investments, directly or indirectly, make
or acquire any Investment, or incur any liabilities (including contingent
obligations) for or in connection with any Investment; provided, however, that
the Company and its Subsidiaries shall not have Permitted Investments (other
than in the Cash Management Accounts (as defined in the New Credit Agreement))
in Deposit Accounts or Securities Accounts in excess of $3,000,000 in the
aggregate outstanding at any one time (excluding (i) Deposit Accounts or
Securities Accounts containing only the cash proceeds received from the WP Xxxxx
Transaction (to the extent such proceeds will be fully utilized in such
transaction), and any proceeds of the monetization of Excluded Assets, and (ii)
any Deposit Accounts maintained by U-Haul solely in its capacity as manager of
properties owned by SAC Holding or SSI under a Management Agreement provided
U-Haul has no rights to or interest in the funds deposited therein) unless the
Company or any of its Subsidiaries, as applicable, and the applicable securities
intermediary or bank have entered into Control Agreements or similar
arrangements governing such Permitted Investments as to perfect (and further
establish) the Trustee's secondary Liens in such Permitted Investments.
(b) Form any new Subsidiary or acquire any direct or indirect
Subsidiary after the Issue Date, unless (i) such Subsidiary is a wholly-owned
Subsidiary of a Note Party, and such Note Party shall (x) cause such new
Subsidiary to enter into a supplemental indenture in the form of Exhibit D
attached hereto and provide to the Trustee a Note Guarantee and a joinder to the
Guaranty Agreement, the Guarantor Security Agreement, the Copyright Security
Agreement, and the Patent and Trademark Security Agreement, together with such
other security documents (including Mortgages with respect to any Real Property
of such new Subsidiary), as well as appropriate Uniform Commercial Code
financing statements (and with respect to all property subject to a Mortgage,
fixture filings) sufficient to grant the Trustee a Lien (second in priority only
to the first priority security interests granted to Bank Lenders' Agent pursuant
to the New Credit Agreement and subject to Permitted Liens) in and to the assets
of such newly formed or acquired Subsidiary), and (y) provide to the Trustee a
pledge agreement and appropriate certificates and powers or Uniform Commercial
Code financing statements, hypothecating all of the direct or beneficial
ownership interest in such new Subsidiary, in form and substance satisfactory to
Trustee, and (z) provide to Trustee all other documentation, including one or
more opinions of counsel satisfactory to Trustee, which in its opinion is
appropriate with respect to the
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execution and delivery of the applicable documentation referred to above
(including policies of title insurance or other documentation with respect to
all property subject to a Mortgage), and (ii) the Trustee receives 30 days'
prior written notice of such formation or acquisition. Any document, agreement,
or instrument executed or issued subject to this Section 5.13(b) shall be a Note
Document.
5.14 Transactions with Affiliates.
Except as otherwise set forth in the Reorganization Plan or as
consented to by Bank Lenders' Agent and the Required Lenders, directly or
indirectly enter into or permit to exist any transaction with any Affiliate of
any Borrower, SAC Holding, SSI, PMSR or PM Preferred except for transactions
that are in the ordinary course of the business of the Note Parties, upon fair
and reasonable terms that are no less favorable to the Note Parties than would
be obtained in an arm's length transaction with a non-Affiliate. Other than as
permitted above, no Note Party shall transfer any cash or assets to the
Insurance Subsidiaries, the Dormant Subsidiaries or INW under any circumstances
whatsoever or guarantee or otherwise incur any Indebtedness on behalf of such
Insurance Subsidiaries, Dormant Subsidiaries or INW.
5.15 Suspension.
Except as permitted by Section 5.03, suspend or go out of a substantial
portion of its business.
5.16 Use of Proceeds.
Use the proceeds from the sale of the Notes for any purpose other than
(a) on the Issue Date, to pay transactional fees, costs, and expenses incurred
in connection with this Agreement, the other Note Documents, and the
transactions contemplated hereby and thereby, and (b) thereafter, for working
capital and other general corporate purposes of the Borrowers, in each case
consistent with the terms and conditions hereof, for its lawful and permitted
purposes.
5.17 Change in Location of Chief Executive Office; Equipment with
Bailees.
Relocate its chief executive office to a new location without the
Company providing 30 days' prior written notification thereof to the Trustee and
so long as, at the time of such written notification, the applicable Note Party
provides or authorizes, at the request of the Trustee, the filing of any Uniform
Commercial Code financing statements or fixture filings necessary to perfect and
continue perfected the Trustee's Liens and also provide to the Trustee a
Collateral Access Agreement, a form of which the Trustee shall provide to the
Company, with respect to such new location. The Equipment of the Note Parties
shall not at any time now or hereafter be stored with a bailee, warehouseman, or
similar party (other than a U-Haul Dealer) without Bank Lenders' Agent's prior
written consent.
5.18 Securities Accounts.
Establish or maintain any Securities Account unless the Trustee shall
have received a Control Agreement in respect of such Securities Account. The
Note Parties are not to transfer assets out of any Securities Account; provided,
however, that, so long as no Event of Default has
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occurred and is continuing or would result therefrom, the Company or the other
Borrowers may use such assets (and the proceeds thereof) to the extent not
prohibited by this Agreement.
5.19 Financial Covenants.
(a) EBITDA/Capital Expenditures. Allow Consolidated EBITDA minus
Capital Expenditures, each as measured on a fiscal quarter-end basis for the
applicable period set forth below, to be less than the required amount set forth
in the following table as of the applicable date set forth opposite thereto:
Applicable Amount Applicable Date
----------------- ---------------
($17,000,000) For the 3-month period
ending March 31, 2004
$15,000,000 For the 3-month period
ending June 30, 2004
$65,000,000 For the 6-month period
ending September 30, 2004
$65,000,000 For the 9-month period
ending December 31, 2004
$60,000,000 For the 12-month period
ending March 31, 2005
$48,000,000 For the 12-month period
ending June 30, 2005
$25,000,000 For the 12-month period
ending September 30, 2005
$25,000,000 For the 12-month period
ending December 31, 2005
$30,000,000 For the 12-month period
ending March 31, 2006
$80,000,000 For the 12-month period
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Applicable Amount Applicable Date
----------------- ---------------
ending June 30, 2006
$115,000,000 For the 12-month period
ending September 30, 2006
$110,000,000 For the 12-month period
ending December 31, 2006
$105,000,000 For the 12-month period
ending March 31, 2007
; provided, however, that based upon Borrowers' Projections (as defined in
the New Credit Agreement) delivered to Bank Lenders' Agent pursuant to
Section 6.3(c) of the New Credit Agreement, the Required Lenders shall
establish quarterly EBITDA minus Capital Expenditure covenants for each
fiscal quarter after March 2007, using the same methodology as utilized for
2004, 2005 and 2006, and the covenants shall be presented to the Company for
its approval, which approval shall not be unreasonably withheld. In the
event the Company does not approve the proposed covenants, Required Lenders
shall establish such covenants, in their Permitted Discretion, based upon
Borrowers' Projections (as defined in the New Credit Agreement) for the
applicable fiscal year.
(b) Capital Expenditures. Make Capital Expenditures in any fiscal
year in excess of the amount set forth in the following table for the applicable
period:
Fiscal Year 2005 Fiscal Year 2006 Fiscal Year 2007
---------------- ---------------- ----------------
$185,000,000 $245,000,00 $195,000,000
; provided, however, that based upon Borrowers' Projections (as defined in
the New Credit Agreement) delivered to Bank Lenders' Agent pursuant to
Section 6.3(c) of the New Credit Agreement, the Required Lenders shall
establish quarterly Capital Expenditure covenants for each fiscal year after
2007, using the same methodology as utilized for 2005, 2006 and 2007, and
the covenants shall be presented to the Company for its approval, which
approval shall not be unreasonably withheld. In the event the Company does
not approve the proposed covenants, Required Lenders shall establish such
covenants, in their Permitted Discretion, based upon Borrowers' Projections
(as defined in the New Credit Agreement) for the applicable fiscal year.
5.20 Employee Benefits.
Directly or indirectly:
(a) engage in any prohibited transaction which is reasonably
likely to result in a civil penalty or excise tax described in Sections 502(i)
of ERISA or 4975 of the IRC for which a
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statutory or class exemption is not available or a private exemption has not
been previously obtained from the Department of Labor;
(b) with respect to any Benefit Plan, permit to exist an
accumulated funding deficiency (as defined in Sections 302 of ERISA and 412 of
the IRC) for a period longer than 30 days, whether or not waived;
(c) fail to pay timely required contributions or annual
installments due with respect to any waived funding deficiency to any Benefit
Plan;
(d) terminate any Benefit Plan where such event would result in
any liability of any Borrower, any Subsidiary of any Borrower or any ERISA
Affiliate under Title IV of ERISA;
(e) fail to make any required contribution or payment to any
Multiemployer Plan;
(f) fail to pay any required installment or any other payment
required under Section 412 of the IRC on or before the due date for such
installment or other payment;
(g) amend a Benefit Plan resulting in an increase in current
liability for the plan year such that any Borrower, any Subsidiary of any
Borrower or any ERISA Affiliate is required to provide security to such Plan
under Section 401(a)(29) of the IRC; or
(h) withdraw from any Multiemployer Plan where such withdrawal is
reasonably likely to result in any liability of any such entity under Title IV
of ERISA;
that, individually or in the aggregate, results in or reasonably would be
expected to result in a claim against or liability of any Borrower, any
Subsidiary of any Borrower or any ERISA Affiliate in excess of $25,000.
5.21 Sales and Leasebacks.
Except for Permitted Dispositions, enter into any arrangement, directly
or indirectly, with any third party whereby any Note Party shall sell or
transfer any property, real or personal, whether now owned or hereafter
acquired, and whereby such Note Party shall then or thereafter rent or lease as
lessee of such property or any part thereof or other property that such Note
Party intends to use for substantially the same purpose or purposes as the
property sold or transferred.
5.22 Anti-Terrorism Laws.
(a) Conduct any business or engage in any transaction or dealing
with any Blocked Person, including the making or receiving any contribution of
funds, goods or services to or for the benefit of any Blocked Person; (b) deal
in, or otherwise engage in any transaction relating to, any property or
interests in property blocked pursuant to Executive Order No. 13224; (c) engage
in or conspire to engage in any transaction that evades or avoids, or has the
purpose of evading or avoiding, or attempts to violate, (i) any of the
prohibitions set forth in Executive Order No. 13224 or the USA Patriot Act, or
(ii) any prohibitions set forth in the rules or regulations issued by OFAC or
any sanctions against targeted foreign countries, terrorism sponsoring
organizations, and international narcotics traffickers based on U.S. foreign
policy. Each Note Party shall
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deliver to the Trustee any certification or other evidence requested from time
to time by the Trustee, in its discretion, confirming such Note Party's
compliance with this Section 5.22.
5.23 Speculative Transactions.
Engage in any transaction involving commodity options or futures
contracts or any similar speculative transactions except for Hedge Agreements
that are used solely as part of normal business operations as a risk management
strategy and/or hedge against charges resulting from market operations in
accordance with the Company's customary policies and not as a means to speculate
for investment purposes or trends and shifts in financial or commodities
markets.
5.24 Amendment to Certain Agreements.
Neither the Company nor any Subsidiary shall (a) enter into or consent
to any amendment, supplement or other modification of this Agreement or the
Security Documents except as permitted under Article IX hereof, and (b) amend,
restate, supplement, modify, waive or otherwise change or consent or agree to
any amendment, modification, waiver or other change to, any of the terms of the
New Credit Agreement in any manner prohibited by the Intercreditor Agreement.
5.25 Waiver of Stay, Extension or Usury Laws.
The Company and each Guarantor covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any
manner whatsoever claim, and will resist any and all efforts to be compelled to
take the benefit or advantage of, any stay or extension law or any usury law or
other law that would prohibit or forgive the Company from paying all or any
portion of the principal of, or interest on the Notes as contemplated herein,
wherever enacted, now or at any time hereafter in force, or which may affect the
covenants or the performance of this Agreement and the Security Documents; and
(to the extent that it may lawfully do so) the Company and each Subsidiary
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power granted to
the Trustee herein and in the Security Documents, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VI
DEFAULTS AND REMEDIES
6.01 Events of Default.
Each of the following shall constitute an "Event of Default" under this
Agreement, the Security Documents and the Note Documents:
(a) failure by the Company to pay interest on any of the Notes
when it becomes due and payable and the continuance of any such failure for 5
days;
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(b) failure by the Company to pay the principal of any of the
Notes when it becomes due and payable, whether at stated maturity, upon
redemption, upon purchase, upon acceleration or otherwise;
(c) failure to perform, keep, or observe any term, provision,
covenant, or agreement contained in Sections 4.08, 4.12, 4.16, 4.17 and Article
V of this Agreement;
(d) failure to perform, keep, or observe any term, provision,
covenant, or agreement contained in Sections 4.04, 4.06, 4.07, 4.09, 4.10, 4.11,
4.13 and 4.15 of this Agreement and such failure continues for a period of 20
Business Days;
(e) failure by a Note Party to perform, keep, or observe any other
term, provision, covenant, or agreement contained in this Agreement or in any of
the other Note Documents (giving effect to any grace periods, cure periods, or
required notices, if any, expressly provided for in such Note Documents); in
each case, other than any such term, provision, covenant, or agreement that is
the subject to another provision of this Section 6.01 (in which event such other
provision of this Section 6.01 shall govern), and such failure continues for a
period of 20 Business Days;
(f) if any material portion of any Note Party's assets is
attached, seized, subjected to a writ or distress warrant, levied upon, or comes
into the possession of any third Person;
(g) if any Note Party is enjoined, restrained, or in any way
prevented by court order from continuing to conduct all or any material part of
its business affairs;
(h) if a notice of Lien, levy, or assessment, individually or in
the aggregate in an amount of $500,000 or greater, is filed of record with
respect to any Note Party's assets by the United States or Canada, or any
department, agency, or instrumentality thereof, or by any state, province,
territory, county, municipal, or governmental agency, or if any taxes or debts
owing at any time hereafter to any one or more of such entities becomes a Lien,
whether xxxxxx or otherwise, upon any Borrower's or any of its Subsidiaries'
assets and the same is not paid on the payment date thereof;
(i) if a judgment or other claim becomes a Lien or encumbrance
upon any material portion of any Note Party's properties or assets;
(j) if there is a default in any material agreement to which any
Guarantor is a party including, without limitation, any Material Contract,
Affiliate Contract or any material contract with any of SAC Holding, SSI, PMSR
or PM Preferred (other than the New AMERCO Notes) or any other Indebtedness in
excess of $1,000,000, and such default (a) occurs at the final maturity of the
obligations thereunder, or (b) results in the acceleration of the maturity of
the applicable Guarantor's obligations thereunder;
(k) except as otherwise set forth in the Reorganization Plan or as
otherwise permitted by this Agreement, if any Note Party makes any payment on
account of Indebtedness that has been contractually subordinated in right of
payment to the payment of the Obligations;
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(l) if the obligation of any Guarantor under the Guaranty
Agreement or the Note Guarantee is limited or terminated by operation of law or
by such Guarantor thereunder;
(m) if this Agreement or any other Note Document that purports to
create a Lien, shall, for any reason, fail or cease to create a valid and
perfected, except to the extent permitted by the terms hereof or thereof, Lien
on or security interest (each, second in priority only to the first priority
security interests granted to Bank Lenders' Agent pursuant to the New Credit
Agreement) in the Collateral covered hereby or thereby;
(n) if any provision of any Note Document shall at any time for
any reason be declared to be null and void, or the validity or enforceability
thereof shall be contested by any Note Party, or a proceeding shall be commenced
by any Note Party, or by any Governmental Authority having jurisdiction over any
Note Party, seeking to establish the invalidity or unenforceability thereof, or
any Note Party shall deny that any Note Party has any liability or obligation
purported to be created under any Note Document;
(o) if suit or action is commenced against the Trustee and/or any
Note Holder and, as to any suit or action brought by any Person other than the
Note Parties or an officer or employee of the Note Parties, is continued without
dismissal for 30 days after service thereof on the Trustee, that asserts, by or
on behalf of the Note Parties, any claim or legal or equitable remedy which
seeks subordination of the claim or Lien of the Trustee and/or any Note Holder
hereunder or under any other Note Document;
(p) if any Note Party shall file any application in support of, or
shall otherwise fail to contest in good faith, a suit or action of the type set
forth in clause (o) of this Section 6.01 filed by any Person other than a
Borrower or an officer or employee of Borrowers;
(q) if an Insolvency Proceeding is commenced by or against any
Note Party, or any of its Subsidiaries (other than INW), and any of the
following events occur: (a) the applicable Note Party or the Subsidiary consents
to the institution of the Insolvency Proceeding against it, (b) the petition
commencing the Insolvency Proceeding is not timely controverted, (c) the
petition commencing the Insolvency Proceeding is not dismissed within 45
calendar days of the date of the filing thereof, (d) an interim trustee is
appointed to take possession of all or any substantial portion of the properties
or assets of, or to operate all or any substantial portion of the business of,
any Note Party or any of its Subsidiaries, or (e) an order for relief shall have
been entered therein;
(r) (i) if any event of default occurs under any New AMERCO Note
Document; or (ii) if any holder of New AMERCO Notes contests that the
Obligations hereunder constitute "Senior Indebtedness" under the New AMERCO
Notes Indenture; or
(s) failure by the Note Parties to register at least ninety
percent (90%) of the Certificates of Title pursuant to Section 11.01(c) within
180 days after the Issue Date; or
(t) if any material misstatement or material misrepresentation
exists now or hereafter in any warranty, representation, statement, or Record
made to the Holders by any Borrower, its Subsidiaries, or any officer, employee,
agent, or director of any Borrower or any of its Subsidiaries.
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6.02 Acceleration.
(a) If an Event of Default (other than an Event of Default
specified in clause (q) of Section 6.01 hereof with respect to the Company)
shall have occurred and be continuing, then the Trustee or the Holders of at
least 25% in aggregate principal amount of the Notes then outstanding, may
declare all amounts owing under the Notes to be due and payable immediately, by
notice in writing to the Company (and to the Trustee if given by Holders). Upon
such declaration of acceleration, the aggregate principal of and accrued and
unpaid interest on the outstanding Notes shall immediately become due and
payable; provided, however, that after such acceleration, but before a judgment
or decree based on acceleration, the Required Holders may rescind and annul such
acceleration, by notice in writing to the Company and the Trustee, if all Events
of Default, other than the nonpayment of accelerated principal and interest,
have been cured or waived as provided in this Agreement. If an Event of Default
specified in clause (q) of Section 6.01 hereof occurs with respect to the
Company, all outstanding Notes shall become due and payable without any further
action or notice.
(b) In the case of an Event of Default occurring by reason of any
willful action (or inaction) taken (or not taken) by or on behalf of the Company
with the intention of avoiding payment of the premium that the Company would
have had to pay if the Company then had elected to redeem the Notes, an
equivalent premium shall also become and be immediately due and payable, to the
extent permitted by law, upon the acceleration of the Notes. If an Event of
Default occurs prior to _____________, 2005 by reason of any willful action (or
inaction) taken (or not taken) by or on behalf of the Company with the intention
of avoiding the prohibition on redemption of the Notes prior to ___________,
2005, then, upon acceleration of the notes, an additional premium shall also
become and be immediately due and payable, to the extent permitted by law, in an
amount equal to 9%.
6.03 Other Remedies.
(a) If an Event of Default occurs and is continuing, the Trustee
may pursue any available remedy to collect the payment of principal, premium,
fees and Additional Interest, if any, and interest on the Notes or to enforce
the performance of any provision of the Notes or this Agreement or the Security
Documents.
(b) The Trustee may maintain a proceeding even if it does not
possess any of the Notes or does not produce any of them in the proceeding. A
delay or omission by the Trustee or any Holder of a Note in exercising any right
or remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of or acquiescence in the Event of Default. All remedies
are cumulative to the extent permitted by law; and shall be in addition to every
other remedy given hereunder or under the Security Documents or existing at law
or in equity or by statute on or after the date hereof.
6.04 Waiver of Past Defaults.
The Required Holders, by notice to the Trustee, may on behalf of the
Holders of all of the Notes waive an existing Default or Event of Default and
its consequences hereunder, except a continuing Default or Event of Default in
the payment of the principal of, premium, fees and
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Additional Interest, if any, or interest on, the Notes (including in connection
with an offer to purchase) (provided that the Required Holders may rescind an
acceleration and its consequences if the rescission would not conflict with any
judgment or decree and if all existing Events of Default (except nonpayment of
principal or interest that has become due solely because of the acceleration)
have been cured or waived). Upon any such waiver, such Default shall cease to
exist, and any Event of Default arising therefrom shall be deemed to have been
cured for every purpose of this Agreement; but no such waiver shall extend to
any subsequent or other Default or impair any right consequent thereon.
6.05 Control by Majority.
The Required Holders may direct the time, method and place of
conducting any proceeding for exercising any remedy available to the Trustee or
exercising any trust or power conferred on it. However, the Trustee may refuse
to follow any direction that conflicts with law or this Agreement, the
Intercreditor Agreement, or any Security Document, that the Trustee determines
may be unduly prejudicial to the rights of other Holders of Notes or that may
involve the Trustee in personal liability.
6.06 Limitation on Suits.
A Holder of a Note may institute a proceeding with respect to this
Agreement, any of the Security Documents, the Notes or for any remedy hereunder
or thereunder only if:
(a) the Holder of a Note gives to the Trustee written notice of a
continuing Event of Default;
(b) the Holders of at least 25% in aggregate principal amount of
the then outstanding Notes make a written request to the Trustee to pursue the
remedy;
(c) such Holder of a Note or Holders of Notes offer and, if
requested, provide to the Trustee indemnity satisfactory to the Trustee against
any loss, liability or expense which might be incurred in compliance with such
request or direction;
(d) the Trustee does not comply with the request within 60 days
after receipt of the request; and
(e) during such 60-day period the Required Holders do not give the
Trustee a direction inconsistent with the request.
A Holder of a Note may not use this Agreement or any Security Document
to prejudice the rights of another Holder of a Note or to obtain a preference or
priority over another Holder of a Note.
However, such limitations do not apply to a suit instituted by a Holder
of any Note for enforcement of payment of the principal of or interest on such
Note on or after the due date therefor (after giving effect to the grace period
specified in Section 6.01(a) hereof).
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6.07 Rights of Holders of Notes to Receive Payment.
Notwithstanding any other provision of this Agreement, the right of any
Holder of a Note to receive payment of principal, premium, fees and Additional
Interest, if any, and interest on the Note, on or after the respective due dates
expressed in the Note (including in connection with an offer to purchase), or to
bring suit for the enforcement of any such payment on or after such respective
dates, shall not be impaired or affected without the consent of such Holder,
including the amounts provided for in Section 7.07 hereof.
6.08 Collection Suit by the Trustee.
If an Event of Default specified in Section 6.01(a) or (b) occurs and
is continuing, the Trustee is authorized to recover judgment in its own name and
as trustee of an express trust against the Company for the whole amount of
principal of, premium, fees and Additional Interest, if any, and interest
remaining unpaid on the Notes and interest on overdue principal and, to the
extent lawful, interest and such further amount as shall be sufficient to cover
the costs and expenses of collection, including the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel.
6.09 The Trustee May File Proofs of Claim.
The Trustee is authorized to file such proofs of claim and other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, including the
amounts provided for in Section 7.07 hereof) and the Holders of the Notes
allowed in any judicial proceedings relative to the Company (or any other
obligor under the Notes), its creditors or its property and shall be entitled
and empowered to collect, receive and distribute any money or other property
payable or deliverable on any such claims and any Custodian in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee, and in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due to it for
the reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07 hereof. To the extent that the payment of any such compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 7.07 hereof out of the estate in
any such proceeding, shall be denied for any reason, payment of the same shall
be secured by a Lien on, and shall be paid out of, any and all distributions,
dividends, money, securities and other properties that the Holders may be
entitled to receive in connection with any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Notes or the property of the Company or of such other obligor or their creditors
or the Trustee (irrespective of whether the principal of the Notes shall then be
due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company
for the payment of overdue principal, Additional Interest, premium of, fees or
interest on the Notes). Nothing herein contained shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization,
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arrangement, adjustment or composition affecting the Notes or the rights of any
Holder, or to authorize the Trustee to vote in respect of the claim of any
Holder in any such proceeding.
6.10 Priorities.
If the Trustee collects any money pursuant to this Article VI, it shall
pay out the money in the following order:
First: to the Trustee, its agents and attorneys for amounts
due under Section 7.07 hereof, including payment of all compensation,
expense and liabilities incurred, and all advances made, by the Trustee
and the costs and expenses of collection;
Second: to Holders of Notes for amounts due and unpaid on the
Notes for principal, premium, fees and Additional Interest, if any, and
interest, ratably, without preference or priority of any kind,
according to the amounts due and payable on the Notes for principal,
premium, fees and Additional Interest, if any and interest,
respectively;
Third: without duplication, to Holders for any other
Obligations owing to the Holders under the Notes, this Agreement or the
other Note Documents; and
Fourth: to the Company or to such party as a court of
competent jurisdiction shall direct.
The Trustee may fix a record date and payment date for any payment to
Holders of Notes pursuant to this Section 6.10.
6.11 Undertaking for Costs.
In any suit for the enforcement of any right or remedy under this
Agreement or any Security Document or in any suit against the Trustee for any
action taken or omitted by it as a the Trustee, a court in its discretion may
require the filing by any party litigant in the suit of an undertaking to pay
the costs of the suit, and the court in its discretion may assess reasonable
costs, including reasonable attorneys' fees, against any party litigant in the
suit, having due regard to the merits and good faith of the claims or defenses
made by the party litigant. This Section does not apply to a suit by the Trustee
or a suit by a Holder of a Note pursuant to Section 6.07 hereof.
6.12 The Trustee May Enforce Claims Without Possession of Notes.
All rights of action and claims under this Agreement, the Notes or any
other Note Document may be prosecuted and enforced by the Trustee without the
possession of any of the Notes or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name and as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee or its agents and counsel,
be for the ratable benefit of the Holders in respect of which such judgment has
been recovered.
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6.13 Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to enforce
any right or remedy under this Agreement, any Security Document or any other
Note Document and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and under such Security
Document or any other Note Document and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had been
instituted.
6.14 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Notes in the last paragraph of Section
2.07, no right or remedy herein conferred or conferred under any Security
Document or other Note Document upon or reserved to the Trustee or to the
Holders is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
6.15 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder to exercise any
right or remedy accruing upon any Event of Default shall impair any such right
or remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article VI or by law to the
Trustee or to the Holders may be exercised from time to time, and as often as
may be deemed expedient, by the Trustee or by the Holders, as the case may be.
ARTICLE VII
TRUSTEE
7.01 Duties of the Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Agreement and the Security Documents, and use the same degree of care and skill
in its exercise, as a prudent person would exercise or use under the
circumstances in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the duties of the Trustee shall be determined solely
by the express provisions of this Agreement or any Security Document
and the Trustee need perform only those duties that are specifically
set forth in this Agreement and the Security Documents and no others,
and no implied covenants or obligations shall be read into this
Agreement or any Security Document against the Trustee; and
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(ii) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Agreement and the Security Documents. However, the Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Agreement and the Security
Documents, but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein.
(c) The Trustee may not be relieved from liabilities for its own
negligent action, its own negligent failure to act, or its own willful
misconduct, except that:
(i) this paragraph (c) does not limit the effect of
paragraph (b) of this Section 7.01;
(ii) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(iii) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05 hereof.
(d) No provision of this Agreement or any Security Document shall
require the Trustee to expend or risk its own funds or incur any liability. The
Trustee shall be under no obligation to exercise any of its rights and powers
under this Agreement or any Security Document at the request or direction of any
Holders, unless such Holder shall have offered to the Trustee security and/or
indemnity satisfactory to it against the cost, loss, liability or expense that
might be incurred by it in compliance with such request or direction.
(e) Whether or not therein expressly so provided, every provision
of this Agreement that in any way relates to the Trustee is subject to Sections
7.01(a), (b), (c) and (d).
(f) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
Money held in trust by the Trustee need not be segregated from other funds
except to the extent required by law.
(g) Each Holder of Notes, by its acceptance thereof, consents and
agrees to the terms of the Security Documents and Intercreditor Agreement as the
same may be in effect or may be amended from time to time in accordance with
their respective terms and the terms hereof and authorizes and directs the
Trustee (in its capacities as trustee and Collateral Trustee for the Holders) to
enter into the Security Documents and Intercreditor Agreement upon the execution
thereof by the other parties thereto and to perform its obligations and exercise
its rights thereunder in accordance therewith.
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7.02 Rights of the Trustee.
(a) The Trustee may conclusively rely upon any document believed
by it to be genuine and to have been signed or presented by the proper Person.
The Trustee need not investigate any fact or matter stated in the document.
(b) Before the Trustee authenticates Notes, takes any other act or
refrains from acting, it may require an Officers' Certificate or an opinion of
counsel or both. The Trustee shall not be liable for any action it takes or
omits to take in good faith in reliance on such Officers' Certificate or opinion
of counsel or both. The Trustee may consult with counsel of its selection and
the advice of such counsel or any opinion of counsel shall be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon.
(c) The Trustee may act through its attorneys and agents and shall
not be responsible for the misconduct or negligence of any such attorneys or
agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or
omits to take in good faith that it believes to be authorized or within the
rights or powers conferred upon it by this Agreement, the Security Documents and
the other Note Documents.
(e) Unless otherwise specifically provided in this Agreement or
any Security Document, any demand, request, direction or notice from the Company
shall be sufficient if signed by an Officer of the Company.
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it sees fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to examine
the books, records and premises of the Company, personally or by agent or
attorney, and shall incur no liability or additional liability of any kind by
reason of such inquiry or investigation.
(g) The Trustee shall not be deemed to have notice of any Default
or Event of Default except (i) any Event of Default occurring pursuant to
Section 6.01(a) or Section 6.01(b), or (ii) any Default or Event of Default of
which the Trustee shall have received written notification at the Corporate
Trust Office of the Trustee or a Responsible Officer of the Trustee has actual
knowledge thereof.
(h) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, whether as the Trustee, Collateral Trustee, Paying
Agent, Registrar or otherwise, and to each agent, Depositary Custodian,
Co-Collateral Trustee and other Person employed to act hereunder, and to Xxxxx
Fargo Bank, N.A. or any successor when acting in its capacity as the Trustee,
Collateral Trustee or any other capacity under the Intercreditor Agreement, the
Security Documents and other Note Documents
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to the same extent as if explicitly set forth in the Intercreditor Agreement,
the Security Documents and other Note Documents.
(i) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Agreement,
which Officers' Certificate may be signed by any Person authorized to sign an
Officers' Certificate, including any Person specified as so authorized in any
such certificate previously delivered and not superseded.
(j) The Trustee shall not be deemed to have notice of or determine
whether any information that it may receive with respect to the Company or any
other Note Party, or that it or any Note Holder may provide to the Holders, is
material, nonpublic information of a type that should not be used by the
recipient to trade in securities of the Company, except for such information
identified by the Company in writing on the face thereof as material, non-public
information. Except with respect to the Trustee's obligation to require Holders
to enter into a standstill and confidentiality agreement as set forth in Section
4.04, the Trustee shall not be responsible for how such information is used or
for obtaining any agreement from the recipient of such information with respect
to the use thereof.
7.03 Individual Rights of the Trustee.
The Trustee in its individual or any other capacity may become the
owner or pledgee of Notes and may otherwise deal with the Company or any
Affiliate of the Company with the same rights it would have if it were not the
Trustee. However, in the event that the Trustee acquires any conflicting
interest it must eliminate such conflict within 90 days, apply to the SEC for
permission to continue as the trustee or resign. Any Agent may do the same with
like rights and duties. The Trustee is also subject to Sections 7.10 and 7.11
hereof.
7.04 The Trustee's Disclaimer.
The Trustee shall not be responsible for and makes no representation as
to the validity or adequacy of this Agreement, the Notes or the Note Guarantees,
it shall not be accountable for the Company's use of the proceeds from the Notes
or any money paid to the Company or upon the Company's direction under any
provision of this Agreement, it shall not be responsible for the use or
application of any money received by any Paying Agent other than the Trustee,
and it shall not be responsible for any statement or recital herein or any
statement in the Notes or any other document in connection with the sale of the
Notes or pursuant to this Agreement other than its certificate of
authentication.
7.05 Notice of Defaults.
If a Default or Event of Default occurs and is continuing and if it is
actually known to a Responsible Officer of the Trustee, the Trustee shall mail
to Holders of Notes a notice of the Default or Event of Default within 30 days
after it becomes actually known to such Responsible Officer of the Trustee.
Except in the case of a Default or Event of Default (a) in payment of principal
of, premium, fees, Additional Interest, if any, or interest on any Note or (b)
in compliance with Section 5.01 hereof, the Trustee may withhold the notice if
and so long as a committee of its Responsible Officers in good faith determines
that withholding the notice is in
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the interests of the Holders of the Notes. The Trustee shall not be required to
take notice or be deemed to have notice or knowledge of any Default or Event of
Default hereunder (expect failure by the Company to make any payments to the
Trustee required to be made hereunder) unless a Responsible Officer of the
Trustee is specifically notified in writing of such Default or Event of Default
by the Company or by a Holder in accordance with Section 13.02 hereof and, in
the absence of such notice, the Trustee may conclusively assume that no Default
or Event of Default has occurred and is continuing.
7.06 Reports by the Trustee to Holders of the Notes.
Within 60 days after each September 1 beginning with the September 1
following the date of this Agreement, and for so long as Notes remain
outstanding, the Trustee shall mail to the Holders of the Notes a brief report
dated as of such reporting date that complies with TIA Section 313(a) (but if no
event described in TIA Section 313(a) has occurred within the twelve months
preceding the reporting date, no report need be transmitted). The Trustee also
shall comply with TIA Section 313(b)(2). The Trustee shall also transmit by mail
all reports as required by TIA Section 313(c).
A copy of each report at the time of its mailing to the Holders of
Notes shall be mailed to the Company and filed with the SEC and each stock
exchange on which the Notes are listed in accordance with TIA Section 313(d).
The Company shall promptly notify the Trustee when the Notes are listed on any
stock exchange or of any delisting thereof.
Upon the written request of a Holder, the Trustee shall deliver as soon
as reasonably practicable to such Holder any financial statements, reports or
certificates delivered to Trustee by the Company pursuant to Section 4.04;
provided that upon the request of Trustee, such Holder shall first enter into a
standstill and confidentiality agreement in form and substance satisfactory to
the Trustee and the Company, which shall provide for, among other things,
indemnification by such Holder of the Trustee of any misuse or improper
disclosure of such information.
7.07 Compensation and Indemnity.
The Company shall pay to the Trustee from time to time such
compensation for its acceptance of this Agreement, the Security Documents and
other Note Documents and services hereunder and thereunder as the Company and
the Trustee shall agree to in writing from time to time. The Trustee's
compensation shall not be limited by any law on compensation of the trustee of
an express trust. The Company shall reimburse the Trustee promptly upon request
for all reasonable disbursements, advances and expenses incurred or made by it
in addition to the compensation for its services. Such expenses shall include
the reasonable compensation, disbursements and expenses of the Trustee's agents
and counsel.
The Company shall indemnify the Trustee and any predecessor the Trustee
(and each of their respective officers, directors, employees and agents) against
any and all losses, liabilities or expenses (including reasonable attorneys'
fees and expenses) incurred by it including taxes (other than taxes based upon
the income of the Trustee) arising out of or in connection with the acceptance
or administration of its duties under this Agreement and the other Note
Documents, including the costs and expenses of enforcing this Agreement and the
other Note Documents against the Company (including this Section 7.07) and
defending itself against any claim
77
(whether asserted by the Company or any Holder or any other person) or liability
in connection with the exercise or performance of any of its powers or duties
hereunder, except to the extent any such loss, liability or expense may be
attributable to its negligence or bad faith. The Trustee shall notify the
Company promptly of any claim for which it may seek indemnity. Failure by the
Trustee to so notify the Company shall not relieve the Company of its
obligations hereunder. The Company shall defend the claim and the Trustee shall
cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel. The Company need not
pay for any settlement made without its consent, which shall not be unreasonably
withheld. The Company shall not, without the prior written consent of the
Trustee, settle or compromise or consent to the entry of any judgment with
respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in
respect of which indemnification has been sought under this Section unless such
settlement, compromise or consent (i) includes an unconditional release of the
Trustee from all liability arising out of such litigation, investigation,
proceeding or claim, and (ii) does not include a statement as to, or an
admission or, fault, culpability or a failure to act by or on behalf of the
Trustee.
The obligations of the Company under this Section 7.07 shall survive
the satisfaction and discharge of this Agreement or any other Note Document, any
rejection or termination of this Agreement or any Note Document under any
bankruptcy law or the resignation or removal of the Trustee.
To secure the Company's payment obligations in this Section, the
Trustee shall have a Lien prior to the Notes on all money or property held or
collected by the Trustee, except that held in trust to pay principal and
interest on particular Notes. Such Lien shall survive the satisfaction and
discharge of this Agreement and the other Note Documents.
Without prejudice to any other rights available to the Trustee under
applicable law, when the Trustee incurs expenses or renders services after an
Event of Default specified in Section 6.01(q) hereof occurs, the expenses and
the compensation for the services (including the fees and expenses of its agents
and counsel) are intended to constitute expenses of administration under any
Bankruptcy Law.
The Trustee shall comply with the provisions of TIA Section 313(b)(2)
to the extent applicable.
7.08 Replacement of the Trustee.
A resignation or removal of the Trustee and appointment of a successor
the Trustee shall become effective only upon the successor Trustee's acceptance
of appointment as provided in this Section.
The Trustee may resign in writing at any time and be discharged from
the trust hereby created by so notifying the Company. The Required Holders may
remove the Trustee by so notifying the Trustee and the Company in writing. The
Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10 hereof;
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(b) the Trustee is adjudged a bankrupt or an insolvent or an order
for relief is entered with respect to the Trustee under any Bankruptcy Law;
(c) a Custodian or public officer takes charge of the Trustee or
its property; or
(d) the Trustee becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of the Trustee for any reason, the Company shall promptly appoint a
successor the Trustee. Within one year after the successor the Trustee takes
office, the Required Holders may appoint a successor the Trustee to replace the
successor the Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring the Trustee resigns or is removed, the retiring Trustee, the Company,
or the Holders of at least 10% in principal amount of the then outstanding Notes
may, at the expense of the Company, petition any court of competent jurisdiction
for the appointment of a successor Trustee.
If the Trustee, after written request by any Holder who has been a
Holder for at least six months, fails to comply with Section 7.10, such Holder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon, the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Agreement and the Security Documents. The successor Trustee shall
mail a notice of its succession to Holders. The retiring Trustee shall promptly
transfer all property held by it as Trustee to the successor Trustee; provided
all sums owing to the Trustee hereunder have been paid and subject to the Lien
provided for in Section 7.07 hereof. Notwithstanding replacement of the Trustee
pursuant to this Section 7.08, the Company's obligations under Section 7.07
hereof shall continue for the benefit of the retiring the Trustee and the
Company shall pay to any such replaced or removed Trustee all amounts owed under
Section 7.07 upon such replacement or removal.
If an instrument of acceptance by a successor Trustee shall not have
been delivered to the Trustee within 60 days after the giving of such notice of
resignation or removal, the resigning or removed Trustee, as the case may be,
may petition, at the expense of the Company, any court of competent jurisdiction
for the appointment of a successor Trustee with respect to the Notes.
7.09 Successor Trustee by Merger, etc.
If the Trustee consolidates, merges or converts into, or transfers all
or substantially all of its corporate trust business to, another corporation,
the successor corporation without any further act shall be the successor
Trustee.
7.10 Eligibility; Disqualification.
There shall at all times be a Trustee hereunder that is a corporation
organized and doing business under the laws of the United States of America or
of any state thereof that is authorized
79
under such laws to exercise corporate trustee power, that is subject to
supervision or examination by federal or state authorities and that has a
combined capital and surplus of at least $100 million as set forth in its most
recent published annual report of condition.
This Agreement shall always have a Trustee who satisfies the
requirements of TIA Section 310(a)(1), (2) and (5). The Trustee is subject to
TIA Section 310(b).
7.11 Preferential Collection of Claims Against Company.
The Trustee is subject to TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
The provisions of TIA Section 311 shall apply to the Company, as obligor on the
Notes.
7.12 Additional Co-Collateral Trustees; Separate Collateral
Trustees.
(a) If at any time or times it shall be necessary or prudent in
order to conform to any law of any jurisdiction in which any of the Collateral
shall be located or deemed located, or the Trustee shall be advised by counsel,
satisfactory to it, that it is necessary or prudent in the interest of the
Holders, or the Required Holders shall in writing so request, or the Trustee
shall deem it desirable, the Trustee and the Company shall, and shall cause each
Guarantor to, execute and deliver all instruments and agreements necessary or
proper to constitute another bank or trust company, or one or more persons
approved by the Trustee and reasonably satisfactory to the Company either (i) to
act as Co-Collateral Trustee or Co-Collateral Trustees of all or any of the
Collateral, jointly with the Trustee originally named herein or any successor or
successors, or (ii) to act as separate or a replacement Collateral Trustee or
Collateral Trustees of any such property or (iii) to replace Collateral Trustee
as a successor Collateral Trustee. In the event the Company and Guarantors shall
not have joined in the execution of such instruments and agreements within 10
days after the receipt of a written request from the Trustee so to do, or in
case an Event of Default shall have occurred and be continuing, the Trustee may
act under the foregoing provisions of this Section 7.12 without the concurrence
of the Company and Guarantors, and the Company and the Guarantors hereby
irrevocably appoint the Trustee as their agent and attorney to act for them
under the foregoing provisions of this Section 7.12 in either of such
contingencies.
(b) Every separate Collateral Trustee and every Co-Collateral
Trustee appointed in accordance with Section 7.12(a)(i) or (ii) hereof, shall,
to the extent permitted by law, be appointed and act and be such, subject to the
following provisions and conditions, namely:
(i) all rights, powers, duties and obligations conferred
upon the Collateral Trustee in respect of the custody, control and
management of moneys, papers, instruments or securities shall be
exercised solely by the Trustee, or its successors as the Trustee
hereunder;
(ii) all rights, powers, duties and obligations (including
the obligations contained in the Intercreditor Agreement) conferred or
imposed upon the Collateral Trustee hereunder shall be conferred or
imposed and exercised or performed by the Collateral Trustee and such
separate Collateral Trustee or separate Collateral Trustees or
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Co-Collateral Trustee or Co-Collateral Trustees, jointly, as shall be
provided in the instrument appointing such separate Collateral Trustee
or separate Collateral Trustees or Co-Collateral Trustee or
Co-Collateral Trustees, except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Collateral Trustee shall be incompetent or unqualified to perform
such act or acts, in which event such rights, powers, duties and
obligations shall be exercised and performed by such separate
Collateral Trustee or separate Collateral Trustees or Co-Collateral
Trustee or Co-Collateral Trustees;
(iii) no power given hereby to, or which it is provided
hereby may be exercised by, any such Co-Collateral Trustee or
Co-Collateral Trustees or separate Collateral Trustee or separate
Collateral Trustees, shall be exercised hereunder by such Co-Collateral
Trustee or Co-Collateral Trustees or separate Collateral Trustee or
separate Collateral Trustees, except jointly with, or with the consent
in writing of, the Collateral Trustee, anything herein contained to the
contrary notwithstanding;
(iv) no Collateral Trustee hereunder shall be personally
liable by reason of any act or omission of any other Collateral Trustee
hereunder; and
(v) the Company, Guarantors and the Trustee, at any time
by an instrument in writing, executed by them jointly, may accept the
resignation of or remove any such separate Collateral Trustee or
Co-Collateral Trustee, and in that case, by an instrument in writing
executed by the Guarantors and the Trustee jointly, may appoint a
successor to such separate Collateral Trustee or Co-Collateral Trustee,
as the case may be, anything herein contained to the contrary
notwithstanding. In the event that the Company and the Guarantors shall
not have joined in the execution of any instrument within 10 days after
the receipt of a written request from the Trustee so to do, or in case
an Event of Default shall have occurred and be continuing, the Trustee
shall have the power to accept the resignation of or remove any such
separate Collateral Trustee or Co-Collateral Trustee and to appoint a
successor without the concurrence of the Company and the Guarantors,
the Company and the Guarantors hereby irrevocably appointing the
Trustee their agent and attorney to act for them in such connection in
either of such contingencies.
(c) Every successor Collateral Trustee appointed in accordance
with Section 7.12(a)(iii) hereof shall, upon the acceptance of any appointment
as Collateral Trustee, thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Collateral Trustee, and
the retiring Collateral Trustee shall be discharged from its duties and
obligations hereunder applicable to it as Collateral Trustee, and this Agreement
and the Security Documents shall be modified as advisable and mutually agreeable
by the Company and the Trustee to delineate the rights, powers and duties of the
Trustee and Collateral Trustee. The replacement of Collateral Trustee by a
successor Collateral Trustee shall not be deemed as a resignation or removal of
the Trustee as the Trustee under this Agreement unless the Trustee expressly
resigns as the Trustee or is removed in accordance with Section 7.08 hereof.
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ARTICLE VIII
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
8.01 Option to Effect Legal Defeasance or Covenant Defeasance.
The Company may at any time elect to have either Section 8.02 or 8.03
hereof be applied to all outstanding Notes upon compliance with the conditions
set forth below in this Article VIII.
8.02 Legal Defeasance and Discharge.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.02, the Company shall, subject to the satisfaction
of the conditions set forth in Section 8.04 hereof, be deemed to have been
discharged from its obligations with respect to all outstanding Notes and all
obligations of the Guarantors discharged with respect to the Note Guarantees on
the date the conditions set forth below are satisfied (hereinafter, "Legal
Defeasance"). For this purpose, Legal Defeasance means that the Company and the
Guarantors shall be deemed to have paid and discharged the entire Indebtedness
represented by the outstanding Notes and the Note Guarantees, respectively,
which shall thereafter be deemed to be "outstanding" only for the purposes of
Section 8.05 hereof and the other Sections of this Agreement referred to in (a)
and (b) below, and to have satisfied all its other obligations under such Notes
and this Agreement (and the Trustee, on demand of and at the expense of the
Company, shall execute proper instruments acknowledging the same), except for
the following provisions which shall survive until otherwise terminated or
discharged hereunder: (a) the rights of Holders of outstanding Notes to receive
solely from the trust fund described in Section 8.04 hereof, and as more fully
set forth in such Section, payments in respect of the principal of, premium,
fees and Additional Interest, if any, and interest on such Notes when such
payments are due, (b) the Company's obligations with respect to such Notes under
Article II and Sections 4.02, 4.12, 8.05, 8.06 and 8.07 hereof, (c) the rights,
powers, trusts, duties and immunities of the Trustee hereunder and the under the
Security Documents and the Company's and Guarantor's obligations in connection
therewith and (d) this Article VIII. Subject to compliance with this Article
VIII, the Company may exercise its option under this Section 8.02
notwithstanding the prior exercise of its option under Section 8.03 hereof.
8.03 Covenant Defeasance.
Upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03, the Company and the Guarantors shall, subject
to the satisfaction of the conditions set forth in Section 8.04 hereof, be
released from their obligations under the covenants contained in Article IV
except Section 4.01 and Section 4.02 and Article V hereof with respect to the
outstanding Notes on and after the date the conditions set forth in Section 8.04
are satisfied (hereinafter, "Covenant Defeasance"), and the Notes shall
thereafter be deemed not "outstanding" for the purposes of any direction,
waiver, consent or declaration or act of Holders (and the consequences of any
thereof) in connection with such covenants, but shall continue to be deemed
"outstanding" for all other purposes hereunder (it being understood that such
Notes shall not be deemed outstanding for accounting purposes). For this
purpose, Covenant Defeasance means that, with respect to the outstanding Notes,
the Company may omit to comply
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with and shall have no liability in respect of any term, condition or limitation
set forth in any such covenant, whether directly or indirectly, by reason of any
reference elsewhere herein to any such covenant or by reason of any reference in
any such covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 6.01 hereof, but, except as specified above, the remainder of this
Agreement, the Security Documents and such Notes shall be unaffected thereby. In
addition, upon the Company's exercise under Section 8.01 hereof of the option
applicable to this Section 8.03 hereof, subject to the satisfaction of the
conditions set forth in Section 8.04 hereof, Sections 6.01(c) through 6.01(m),
Sections 6.01(o) through 6.01(p), and Section 6.01(r) through Section 6.01(t)
hereof shall not constitute Events of Default.
8.04 Conditions to Legal or Covenant Defeasance.
The following shall be the conditions to the application of either
Section 8.02 or 8.03 hereof to the outstanding Notes:
In order to exercise either Legal Defeasance or Covenant Defeasance:
(a) the Company must irrevocably deposit with the Trustee, in
trust, for the benefit of the Holders, U.S. legal tender, U.S. Government
Obligations or a combination thereof, in such amounts as will be sufficient
(without reinvestment) in the opinion of a nationally recognized firm of
independent public accountants selected and paid for by the Company and
reasonably satisfactory to the Trustee, to pay the principal of and interest on
the Notes on the stated date for payment or on the redemption date of the
principal or installment of principal of or interest on the Notes, and the
Holders must have a valid, perfected, exclusive security interest in such trust;
(b) in the case of an election under Section 8.02 hereof, the
Company shall have delivered to the Trustee an opinion of counsel in the United
States reasonably acceptable to the Trustee confirming that (i) the Company has
received from, or there has been published by, the Internal Revenue Service a
ruling or (ii) since the date of this Agreement, there has been a change in the
applicable U.S. federal income tax law, in either case to the effect that, and
based thereon such opinion of counsel shall confirm that, the Holders of the
outstanding Notes will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Legal Defeasance and will be subject to
U.S. federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such Legal Defeasance had not occurred;
(c) in the case of an election under Section 8.03 hereof, the
Company shall have delivered to the Trustee an opinion of counsel in the United
States reasonably acceptable to the Trustee confirming that the Holders of the
outstanding Notes will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such Covenant Defeasance and will be subject
to U.S. federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such Covenant Defeasance had not
occurred;
(d) no Default or Event of Default shall have occurred and be
continuing on the date of such deposit (other than a Default or Event of Default
resulting from the borrowing of funds to be applied to such deposit and the
grant of any Lien securing such borrowing);
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(e) such Legal Defeasance or Covenant Defeasance shall not result
in a breach or violation of, or constitute a default under this Agreement or any
other material agreement or instrument to which the Company or any of its
Subsidiaries is a party or by which the Company or any of its Subsidiaries is
bound;
(f) the Company shall have delivered to the Trustee an Officers'
Certificate stating that the deposit was not made by the Company with the intent
of preferring the Holders over any other creditors of the Company or with the
intent of defeating, hindering, delaying or defrauding any other creditors of
the Company;
(g) the Company shall have delivered to the Trustee an Officers'
Certificate and an opinion of counsel, each stating that the conditions provided
for in, in the case of the Officers' Certificate, clauses (a) through (f) and,
in the case of the opinion of counsel, clauses (a) (with respect to the validity
and perfection of the security interest), (b) and/or (c), (e) and (h) of this
Section 8.04 have been complied with;
(h) the Company shall have granted a first priority perfected
security interest in the deposit described in Section 8.04(a) for the benefit of
the Trustee on behalf of the Holders, and the Bank Lenders' Agent shall have
released all Liens with respect thereto and consented to such defeasance on
behalf of the Bank Lenders; and
(i) in the event all or any portion of the Notes are to be
redeemed through such irrevocable trust, the Company must make arrangements
reasonably satisfactory to the Trustee, at the time of such deposit, for the
giving of notice of such redemption or redemptions by the Trustee in the name
and at the expense of the Company.
8.05 Deposited Money and U.S. Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions.
Subject to Section 8.06 hereof, all money and U.S. Government
Obligations (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 8.05, the
"Trustee") pursuant to Section 8.04 hereof in respect of the outstanding Notes
shall be held in trust and applied by the Trustee, in accordance with the
provisions of such Notes and this Agreement, to the payment, either directly or
through any Paying Agent (including the Company acting as Paying Agent) as the
Trustee may determine, to the Holders of such Notes of all sums due and to
become due thereon in respect of principal, premium and Additional Interest, if
any, and interest, but such money need not be segregated from other funds except
to the extent required by law.
The Company shall pay and indemnify the Trustee against any tax, fee or
other charge imposed on or assessed against the cash or U.S. Government
Obligations deposited pursuant to Section 8.04 hereof or the principal and
interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of the outstanding Notes.
Anything in this Article VIII to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the request
of the Company any money or U.S. Government Obligations held by it as provided
in Section 8.04 hereof which, in the opinion of a nationally recognized firm of
independent public accountants selected and paid for by the
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Company and reasonably satisfactory to the Trustee, expressed in a written
certification thereof delivered to the Trustee (which may be the opinion
delivered under Section 8.04(a) hereof), are in excess of the amount thereof
that would then be required to be deposited to effect an equivalent Legal
Defeasance or Covenant Defeasance.
8.06 Repayment to Company.
Any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of, premium, fees,
Additional Interest, if any, or interest on any Note and remaining unclaimed for
two years after such principal, and premium and fees, if any, or interest has
become due and payable shall be paid to the Company on its request or (if then
held by the Company) shall be discharged from such trust; and the Holder of such
Note shall thereafter look only to the Company for payment thereof, and all
liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease;
provided, however, that the Trustee or such Paying Agent, before being required
to make any such repayment, shall at the expense of the Company cause to be
published once, in The New York Times and The Wall Street Journal (national
edition), notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
notification or publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
8.07 Reinstatement.
If the Trustee or Paying Agent is unable to apply any cash or U.S.
Government Obligations in accordance with Section 8.02 or 8.03 hereof by reason
of any order or judgment of any court or governmental authority enjoining,
restraining or otherwise prohibiting such application or such cash or U.S.
Government Obligations are insufficient to pay the principal of and interest on
the Notes when due, then the Company's obligations under this Agreement and the
Notes shall be revived and reinstated as though no deposit had occurred pursuant
to Section 8.02 or 8.03 hereof until such time as the Trustee or Paying Agent is
permitted to apply all such money in accordance with Section 8.02 or 8.03
hereof; provided, however, that, if the Company makes any payment of principal
of, premium, fees and Additional Interest, if any, or interest on any Note
following the reinstatement of its obligations, the Company shall be subrogated
to the rights of the Holders of such Notes to receive such payment from the
money held by the Trustee or Paying Agent.
ARTICLE IX
AMENDMENT, SUPPLEMENT AND WAIVER
9.01 Without Consent of Holders of Notes.
Notwithstanding Section 9.02 of this Agreement, the Company and the
Trustee may amend or supplement this Agreement, the Note Guarantees or the Notes
without the consent of any Holder of a Note:
(a) to cure any ambiguity, defect or inconsistency;
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(b) to provide for uncertificated Notes in addition to or in place
of certificated Notes;
(c) to release any Guarantor from any of its obligations under its
Note Guarantee or this Agreement (to the extent permitted by this Agreement);
(d) to make any change that does not materially adversely affect
the legal rights hereunder of any Holder of the Notes; or
(e) to comply with requirements of the SEC in order to effect or
maintain the qualification of this Agreement under the TIA.
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon receipt by the Trustee of the documents described in Section
9.06 hereof, the Trustee shall join with the Company and the Guarantors in the
execution of any amended or supplemental indenture authorized or permitted by
the terms of this Agreement and to make any further appropriate agreements and
stipulations that may be therein contained, but the Trustee shall not be
obligated to enter into such amended or supplemental indenture that affects its
own rights, duties or immunities under this Agreement or under the Security
Documents or otherwise.
9.02 With Consent of Holders of Notes.
Except as provided below in this Section 9.02, the Company and the
Trustee may amend or supplement this Agreement (including Section 4.15 hereof),
the Note Guarantees and the Notes with the consent of the Required Holders
(including consents obtained in connection with a tender offer or exchange offer
for, or purchase of, the Notes), and, subject to Sections 6.04 and 6.07 hereof,
any existing Default (other than a Default in the payment of the principal of,
premium, fees and Additional Interest, if any, or interest on the Notes) under,
or compliance with any provision of, this Agreement, the Note Guarantees or the
Notes may be waived with the consent of the Required Holders (including consents
obtained in connection with a tender offer or exchange offer for, or purchase
of, the Notes).
Upon the request of the Company accompanied by a resolution of its
Board of Directors authorizing the execution of any such amended or supplemental
indenture, and upon the filing with the Trustee of evidence satisfactory to the
Trustee of the consent of the Holders of Notes as aforesaid, and upon receipt by
the Trustee of the documents described in Section 9.06 hereof, the Trustee shall
join with the Company in the execution of such amended or supplemental indenture
unless such amended or supplemental indenture directly affects the Trustee's own
rights, duties or immunities under this Agreement or under any Security Document
or otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such amended or supplemental indenture.
It shall not be necessary for the consent of the Holders of Notes under
this Section 9.02 to approve the particular form of any proposed amendment or
waiver, but it shall be sufficient if such consent approves the substance
thereof.
After an amendment, supplement or waiver under this Section becomes
effective, the Company shall mail to the Holders of Notes affected thereby a
notice briefly describing the
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amendment, supplement or waiver. Any failure of the Company to mail such notice,
or any defect therein, shall not, however, in any way impair or affect the
validity of any such amended or supplemental indenture or waiver. Subject to
Sections 6.04 and 6.07 hereof, the Required Holders may waive compliance in a
particular instance by the Company with any provision of this Agreement or the
Notes. However, without the consent of each Holder affected, an amendment or
waiver under this Section 9.02 may not (with respect to any Notes held by a
non-consenting Holder):
(a) change the maturity of any Note;
(b) reduce the amount, extend the due date or otherwise affect the
terms of any scheduled payment of premium, fees or Additional Interest on, if
any, or interest on or principal of the Notes;
(c) change the date on which any Notes are subject to redemption
or otherwise alter the provisions with respect to the redemption of the Notes or
waive a redemption payment with respect to any Note;
(d) make any Note payable in money or currency other than that
stated in the Notes;
(e) modify or change any provision of this Agreement or its
related definitions to affect the ranking of the Notes or any Note Guarantee in
a manner that adversely affects the Holders;
(f) reduce the percentage of Holders necessary to consent to an
amendment or waiver to this Agreement or the Notes;
(g) impair the rights of Holders to receive payments of principal
of or interest on the Notes;
(h) release any Guarantor from any of its obligations under its
Note Guarantee or this Agreement, other than as permitted by this Agreement;
(i) make any change in these amendment and waiver provisions;
(j) release Collateral other than in accordance with the
procedures set forth in the Security Documents, or amend, waive or otherwise
modify any provisions in the Note Documents with respect to the release of
Collateral;
(k) except as permitted by this Agreement and the Security
Documents, create any Lien on the Collateral ranking prior to, or on parity
with, the security interest created by this Agreement and the Security Documents
or deprive any Holder of the benefit of the Lien of this Agreement and the
Security Documents; or
(l) waive a Default or Event of Default in the payment of
principal of or premium or Additional Interest, if any, interest on, or
redemption payment with respect to, any Note (other than a Default in the
payment of an amount due as a result of an acceleration if the Holders rescind
such acceleration pursuant to Section 6.2).
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Any amendment to Section 4.15 or the related definitions that could
adversely affect the rights of any Holder shall require the consent of the
Holders of at least 66 2/3% in aggregate principal amount of the Notes then
outstanding.
In connection with any amendment, supplement or waiver, the Company
may, but shall not be obligated to, offer any Holder who consents to such
amendment, supplement or waiver, or to all Holders, consideration for such
Holder's consent to such amendment, supplement or waiver.
9.03 Compliance with Trust Indenture Act.
Every amendment or supplement to this Agreement or the Notes shall be
set forth in an amended or supplemental indenture that complies with the TIA as
then in effect.
9.04 Revocation and Effect of Consents.
Until an amendment, supplement or waiver becomes effective, a consent
to it by a Holder of a Note is a continuing consent by the Holder of a Note and
every subsequent Holder of a Note or portion of a Note that evidences the same
debt as the consenting Holder's Note, even if notation of the consent is not
made on any Note. However, any such Holder of a Note or subsequent Holder of a
Note may revoke the consent as to its Note if the Trustee receives written
notice of revocation before the date the waiver, supplement or amendment becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Holder.
9.05 Notation on or Exchange of Notes.
The Trustee may place an appropriate notation about an amendment,
supplement or waiver on any Note thereafter authenticated. The Company may issue
and the Trustee shall, upon receipt of an Authentication Order, authenticate new
Notes that reflect the amendment, supplement or waiver.
Failure to make the appropriate notation or issue a new Note shall not
affect the validity and effect of such amendment, supplement or waiver.
9.06 The Trustee to Sign Amendments, etc.
The Trustee shall sign any amended or supplemental indenture authorized
pursuant to this Article IX if the amendment or supplement does not adversely
affect the rights, duties, liabilities or immunities of the Trustee under this
Agreement, any Security Document or other Note Document or otherwise. If it
does, the Trustee may but need not sign it. The Company may not sign an
amendment or supplemental indenture until the Board of Directors approves it. In
executing any amended or supplemental indenture, the Trustee shall be entitled
to receive and (subject to Section 7.01 hereof) shall be fully protected in
relying upon, in addition to the documents required by Section 12.04 hereof, an
Officers' Certificate and an opinion of counsel.
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9.07 Effect of Amendment of, Refinancing of or Termination of New Credit
Agreement.
(a) Notice; Effectiveness. If the New Credit Agreement is waived,
amended, modified, supplemented or terminated, the Company shall deliver a copy
of such waiver, amendment, modification, supplement or notice of such
termination, as the case may be, to the Trustee. In the case of a waiver,
amendment, modification or supplement of the New Credit Agreement that shall
result in the waiver, amendment, modification or supplement of this Agreement
pursuant to this Section 9.07, such notice shall also detail the waiver,
amendment, modification or supplement to this Agreement. Any such waiver,
amendment, modification or supplement to this Agreement shall be effective only
upon receipt of such notice by the Trustee and the granting of any consent of
Holders required hereby. The provisions of this Section 9.07 shall control over
anything to the contrary in this Agreement. In no event shall any amendment
pursuant to this Section 9.07: (i) be used to cure or avoid an imminent
potential Default and/or Event of Default in this Agreement or an imminent
potential default and/ or event of default in the New Credit Agreement, except
as provided in subsection (d) below relating to waivers of Events of Default,
(ii) amend, modify or supersede anything in this Agreement or the other Note
Documents other than Articles IV or V (and/or defined terms used therein) of
this Agreement, or (iii) amend, modify or supersede anything else that the
Trustee deems fundamental to the transactions contemplated by this Agreement,
such as the interest rate and maturity date of the Notes and the rights of the
Holders to transfer or exchange their Notes. Notwithstanding anything to the
contrary in this Section 9.07, no amendment, modification or supplement of any
provision of this Agreement, any Security Document or other Note Document shall
adversely affect the rights, duties, liabilities or immunities of the Trustee
under this Agreement, any Security Document or otherwise without the prior
written consent of the Trustee.
(b) Change in Accounting Principles. If any change in accounting
principles from those used in the preparation of the audited financial
statements referred to in Section 4.04 hereafter occasioned by the promulgation
of any rule, regulation, pronouncement or opinion by or required by the
Financial Accounting Standards Board (or successors thereto or agencies with
similar functions) result in a change in the method of calculation of financial
covenants, standards or terms found in the covenants contained in the New Credit
Agreement that correspond to Article IV or Article V of this Agreement, then the
method of calculation of financial covenants, standards or terms found in
Article IV and Article V hereof shall be automatically changed in the same
manner and to the same extent as provided in the New Credit Agreement.
(c) Amendment. If there are any amendments, modifications or
supplements to the covenants contained in Articles 6 and 7 (and/or defined terms
used therein) of the New Credit Agreement after the Issue Date, then the
corresponding covenants contained in Articles IV and V (and/or defined terms
used therein) of this Agreement shall be automatically amended, modified or
supplemented in the same manner and to the same extent as provided in the New
Credit Agreement; provided, however, that before this Agreement shall be so
amended, modified or supplemented, the Required Holders must consent to any such
amendments, modifications or supplements of the New Credit Agreement that if
applied to this Agreement would have the effect of:
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(i) modifying or superseding Section 5.01
(and/or defined terms used therein) or otherwise allowing (whether
through an amendment, modification or supplement of the covenant
contained in the New Credit Agreement, as of the Issue Date, that
corresponds to Section 5.01 of this Agreement or an amendment,
modification, or supplement of some other provision or definition of
the New Credit Agreement that has a corresponding provision or
definition herein) the Company and/or the relevant Note Parties to
incur, assume, suffer to exist, guarantee, refinance or otherwise
become or remain, directly or indirectly, liable with respect to any
additional Indebtedness (other than Capital Leases), except
subordinated Indebtedness (other than Capital Leases) which (A) (1) is
in an aggregate amount less than or equal to $50,000,000 in excess of
the amount of subordinated Indebtedness permitted under this Agreement,
(2) matures later than one year after the maturity date of the Notes,
(3) has an original issue discount less than 10%, and (4) has a rate of
interest at the prevailing market interest rate applicable for similar
Indebtedness measured at the time such additional subordinated
Indebtedness is incurred, or (B) (1) is incurred to refinance the New
AMERCO Notes, (2) is in an aggregate amount less than or equal to
$200,000,000, (3) matures later than one year after the maturity date
of the Notes, (4) has an original issue discount less than 10%, and (5)
has a rate of interest at the prevailing market interest rate
applicable for similar Indebtedness measured at the time such
additional subordinated Indebtedness is incurred,
(ii) modifying or superseding Sections 5.04 or
5.21 (and/or defined terms used therein) or otherwise allowing (whether
through an amendment, modification or supplement of the covenant
contained in the New Credit Agreement that corresponds to Sections 5.04
or 5.21, the definition in the New Credit Agreement that corresponds to
clause (o) of the definition of "Permitted Dispositions" in Section
1.01 or some other provision or definition of the New Credit Agreement
that has a corresponding provision or definition herein) any additional
disposal of assets except Permitted Dispositions of Real Property
Collateral of the type described in clause (o) of the definition of
"Permitted Dispositions" provided that the aggregate proceeds of such
Permitted Disposition of Real Property Collateral in excess of
$75,000,000 in total after the Issue Date shall be used only to
permanently reduce the first priority Indebtedness incurred by the Note
Parties under the New Credit Agreement,
(iii) amending or superseding the definition of
"ECF Carry Forward Amount" or "Excess Availability Test" in Section
1.01 or the provisions in which such definitions are used,
(iv) modifying or superseding Section 5.08
(and/or defined terms used therein) or otherwise amending (whether
through an amendment, modification or supplement of the covenant
contained in the New Credit Agreement that corresponds to Section 5.08
or some other provision or definition of the New Credit Agreement that
has a corresponding provision or definition herein) the amounts allowed
for any prepayment or amendment in accordance with Section 5.08 as of
the Issue Date,
(v) modifying or superseding Section 5.11
(and/or defined terms used therein) or otherwise amending (whether
through an amendment, modification or supplement of the covenant
contained in the New Credit Agreement that corresponds to
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Section 5.11 or some other provision or definition of the New Credit
Agreement that has a corresponding provision or definition herein) the
amounts allowed for any distribution in accordance with Section 5.11 as
of the Issue Date, other than as currently provided for in this
Agreement,
(vi) modifying or superseding Section 5.09 or
otherwise amending (whether through an amendment, modification or
supplement of the covenant contained in the New Credit Agreement, as of
the Issue Date, that corresponds to Section 5.09 of this Agreement, the
definition in the New Credit Agreement that corresponds to the
definition of "Change of Control" in Section 1.01 or some other
provision or definition of the New Credit Agreement that has a
corresponding provision or definition herein) the change of control
restrictions contained in Section 5.09 as of the Issue Date,
(vii) modifying or superseding Section 5.14 or
otherwise amending (whether through an amendment, modification or
supplement of the covenant contained in the New Credit Agreement, as of
the Issue Date, that corresponds to Section 5.14 of this Agreement, the
definition in the New Credit Agreement that corresponds to the
definition of "Affiliate" in Section 1.01 or some other provision or
definition of the New Credit Agreement that has a corresponding
provision or definition herein) the restrictions on transactions with
Affiliates contained in Section 5.14 as of the Issue Date,
(viii) modifying or superseding clause (k) of the
definition of "Permitted Investment" in Section 1.01 or otherwise
amending (whether through an amendment, modification or supplement of
the definition contained in the New Credit Agreement, as of the Issue
Date, that corresponds to clause (k) of the definition of "Permitted
Investment" in Section 1.01 or some other provision or definition of
the New Credit Agreement that has a corresponding provision or
definition herein) the ability of the Note Parties to make Investments
(other than those contained in (a) through (j) of the definition of
"Permitted Investments" contained in Section 1.01) in the aggregate
amount in excess of $10,000,000,
(ix) modifying or superseding Section 5.02 or
otherwise allowing (whether through an amendment, modification or
supplement of the covenant contained in the New Credit Agreement, as of
the Issue Date, that corresponds to Section 5.02 of this Agreement, the
definition in the New Credit Agreement that corresponds to the
definition of "Permitted Liens" in Section 1.01 or some other provision
or definition of the New Credit Agreement that has a corresponding
provision or definition herein) additional Liens,
(x) permitting the Applicable Amounts for any
consecutive twelve month period contained in Section 5.19(a) of this
Agreement to be less than 85% of the Applicable Amounts stated therein
as of the Issue Date or permitting the quarterly EBITDA minus Capital
Expenditure covenant established for each fiscal quarter after March
2007 pursuant to Section 5.19(a) of this Agreement to be less than 85%
of such amount after being established by the Required Lenders,
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(xi) permitting the Capital Expenditures to
increase in any one fiscal year more than $50,000,000 above the
scheduled amounts permitted and those amounts established for any
fiscal year after 2007 pursuant to the provisions in Section 5.19(b),
or
(xii) if the Class B Notes are outstanding,
amending or superseding any financial covenant or any part thereof in
this Agreement (including, without limitation, as of the Issue Date,
Sections 5.01, 5.02, 5.04, 5.06, 5.08, 5.09, 5.11, 5.13, 5.14, 5.19 and
5.21).
(d) Waiver of Default. If the Class B Notes are not outstanding,
and the Bank Lenders' Agent or Required Lenders, as the case may be, waives or
partially waives any event of default or any part thereof contained in the New
Credit Agreement that corresponds, as of the Issue Date, to an Event of Default
under Section 6.01(d) of this Agreement or an Event of Default under Section
6.01(e) that relates to a Default under Sections 4.03 or 4.05 of this Agreement,
the corresponding Event of Default or part thereof shall be automatically deemed
waived by the Trustee or the Required Holders, as the case may be, in the same
manner and to the same extent waived under the New Credit Agreement.
(e) Refinancing. If the New Credit Agreement is refinanced, the
covenants contained in this Agreement shall remain in the same form as they
exist on the date of the refinancing. Thereafter, if there is an amendment,
modification or supplement to any covenants in the refinanced New Credit
Agreement, subsections (b), (c) and (d) above shall not apply, and the Trustee,
the Holders of the Notes and the Note Parties agree to negotiate in good faith
on replacement provisions for such subsections.
(f) Termination. If the New Credit Agreement is terminated,
extinguished or otherwise not in force while the Notes are outstanding and this
Agreement is still in effect, references to provisions, sections, articles,
exhibits and schedules of the New Credit Agreement shall be incorporated herein
and the following terms shall be replaced mutatis mutandis:
(i) "Required Lenders" shall be replaced with
the term "Required Holders"; and
(ii) "Bank Lenders' Agent" shall be replaced with
the term "Trustee".
The parties agree that if the New Credit Agreement is terminated, extinguished
or otherwise not in force, the affected provisions of this Agreement shall be
interpreted in such a manner as to minimize any change in the application of
such provisions from the application of such provisions when the New Credit
Agreement was in effect.
ARTICLE X
NOTE GUARANTEES
10.01 Guarantee.
For good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, subject to this Article X, each of the Guarantors
hereby, jointly and severally,
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fully and unconditionally guarantees to each Holder of a Note authenticated and
delivered by the Trustee and to the Trustee and its successors and assigns,
irrespective of the validity and enforceability of this Agreement, the Notes or
the obligations of the Company hereunder or thereunder, that: (a) the principal
of and interest on, and premium and fees on, if any, the Notes will be promptly
paid in full when due, whether at maturity, by acceleration, redemption or
otherwise, and interest on the overdue principal of and interest on the Notes,
if any, if lawful, and all other obligations of the Company to the Holders or
the Trustee hereunder or under the Notes, the Security Documents or other Note
Documents will be promptly paid in full or performed, all in accordance with the
terms hereof and thereof; and (b) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise
(all such obligations guaranteed hereby being the "Guaranteed Obligations").
Failing payment when due of any amount so guaranteed or any performance so
guaranteed for whatever reason, the Guarantors shall be jointly and severally
obligated to pay the same immediately. Each Guarantor agrees that this is a
guarantee of payment and not a guarantee of collection.
This guarantee is irrevocable, absolute, present and unconditional.
Each Guarantor guarantees that the Guaranteed Obligations will be paid strictly
in accordance with the terms of this Agreement, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Trustee or the Holders with respect thereto.
The liability of each Guarantor under its Guarantee herein shall be absolute and
unconditional irrespective of:
(iii) the validity, assignment, enforceability,
avoidance, novation or subordination of, in whole or in part, any of
the Guaranteed Obligations, this Agreement or the other Note Documents
with respect to the Company or any agreement or instrument relating
thereto;
(iv) any change in the time, manner or place of
payment of, or in any other term of, all or any of the Guaranteed
Obligations, or any other amendment or waiver of or any consent to
departure from this Agreement, including any increase in the Guaranteed
Obligations resulting from the extension of additional credit to the
Company or otherwise;
(v) the failure to give notice to such Guarantor
of the occurrence of a Default or Event of Default under the provisions
of this Agreement or the other Note Documents;
(vi) any taking, exchange, release or
nonperfection of any collateral, or any taking, release or amendment or
waiver of or consent to departure from any other guaranty, for all or
any of the Guaranteed Obligations;
(vii) any manner of application of Collateral, or
proceeds thereof, or payments and credits hereunder, to all or any of
the Guaranteed Obligations, or any manner of sale or other disposition
of any collateral or any other assets of the Company;
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(viii) any failure, omission, delay by or inability
on the part of the Trustee or the Holders to assert or exercise any
right, power or remedy conferred on the Trustee or the Holders in this
Agreement or the other Note Documents;
(ix) any change in the corporate structure, or
termination, dissolution, consolidation or merger of the Company or any
guarantor (including any other Guarantor) with or into any other
entity, the voluntary or involuntary liquidation, dissolution, sale or
other disposition of all or substantially all the assets of the Company
or any guarantor (including any other Guarantor), the marshaling of the
assets and liabilities of the Company or any guarantor (including any
other Guarantor), the receivership, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition
with creditors, or readjustment of, or other similar proceedings
affecting the Company or any guarantor (including any other Subsidiary
Guarantor), or any of the assets of any of them, or except as set forth
herein, any change in the ownership of such Guarantor;
(x) the assignment of any right, title or
interest of the Trustee or any Holder in this Agreement or the other
Note Documents to any other Person;
(xi) any extension or renewal of any of the
Guaranteed Obligations;
(xii) any exchange, surrender, substitution,
modification of any collateral security for the Guaranteed Obligations
of any Guarantor or the release of any security held by any Holder or
the Trustee for the Guaranteed Obligations of any Guarantor, or the
failure of the Trustee or any other Person to take any steps to perfect
and maintain its security interest in, or to preserve its rights to,
any security or collateral for the Guaranteed Obligations;
(xiii) the election by, or on behalf of, any one or
more of Holders and the Trustee, in any proceeding instituted under
Chapter 11 of the Bankruptcy Law;
(xiv) any borrowing or grant of a security
interest by the Company, as debtor-in-possession, under Section 364 of
the Bankruptcy Law;
(xv) the disallowance, under Section 502 of the
Bankruptcy Law, of all or any portion of the claims of any of Holders
or the Trustee for repayment of all or any part of the Guaranteed
Obligations or any expenses described in this Section;
(xvi) any refusal of payment by the Trustee or any
Holder, in whole or in part, from any obligor or guarantor in
connection with any of the Guaranteed Obligations, whether or not with
notice to, or further assent by, or any reservation of rights against,
Company or any Guarantor;
(xvii) any defense, setoff, cross claim or
counterclaim which may at any time be available to or asserted by or
against any Guarantor or Company; or
(xviii) any other event or circumstance (including
any statute of limitations), whether foreseen or unforeseen and whether
similar or dissimilar to any of
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the foregoing, that might otherwise constitute a defense available to,
or a discharge of, the Company or a guarantor (including any other
Guarantor), other than payment in full of the Guaranteed Obligations;
it being the intent of such Guarantor that its obligations hereunder
shall not be discharged except by payment of all amounts owing pursuant
to this Agreement or the Notes and except as otherwise provided in
Section 10.07 or Article VIII.
Each Guarantor hereby waives: (i) promptness, diligence, presentment, demand of
payment, (ii) filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any Guarantor, any other Subsidiary of the Company or
any other obligor under the Notes, (iii) any right to require a proceeding first
against the Company, any Guarantor, any other Subsidiary of the Company or any
other obligor under the Notes, (iv) protest, notice and all demands whatsoever,
(v) any requirement that the Trustee, any Holder or any other Person protect,
secure and perfect or insure any Lien or any property subject thereto or exhaust
any right to take any action against the Company or any other Person or any
Collateral, or obtain any relief pursuant to this Agreement or pursue any other
available remedy, (vi) ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS INDENTURE OR THE NOTES, (vii)
any defense arising by reason of any claim or defense based upon an election of
remedies by the Trustee or any Holder which in any manner impairs, reduces,
releases or otherwise affects its subrogation, contribution or reimbursement
rights or other rights to proceed against the Company or any other Person or any
Collateral; (viii) any duty on the part of the Trustee or any Holder to disclose
to such Guarantor any matter, fact or thing relating to the business, operation
or condition of the Company and its assets now or hereafter known by the Trustee
or such Holder; (ix) all notices of the existence, creation or incurring of new
or additional indebtedness, arising either from additional financial
accommodations extended to the Company or otherwise; and (x) any defense based
upon any requirement of law which provides that the obligation of a surety must
be neither large in amount nor in other respects more burdensome than that of
the principal.
Each Guarantor covenants that this Note Guarantee shall not be
discharged except by complete performance of the obligations contained in the
Notes and this Agreement.
If any Holder or the Trustee is required by any court or otherwise to
return to the Company, the Guarantors, any other Subsidiary of the Company, any
other obligor under the Notes, or any Custodian, trustee, liquidator or other
similar official acting in relation to either the Company or the Guarantors, any
amount paid by either to the Trustee or such Holder, this Note Guarantee, to the
extent theretofore discharged, shall be reinstated in full force and effect.
Each Guarantor agrees that it shall not be entitled to any right of
subrogation in relation to the Holders in respect of any obligations guaranteed
hereby until payment in full of all obligations guaranteed hereby. Each
Guarantor further agrees that, as between the Guarantors, on the one hand, and
the Holders and the Trustee, on the other hand, (x) the maturity of the
obligations guaranteed hereby may be accelerated as provided in Article VI
hereof for the purposes of this Note Guarantee, notwithstanding any stay,
injunction or other prohibition preventing such acceleration in respect of the
obligations guaranteed hereby, and (y) in the event of any declaration of
acceleration of such obligations as provided in Article VI hereof, such
obligations (whether or not due and payable) shall forthwith become due and
payable by the
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Guarantors for the purpose of this Note Guarantee. Each Guarantor that makes
payments under its Note Guarantee is entitled to a contribution from each other
Guarantor in a pro rata amount based on the net assets of each Guarantor.
Each Guarantor agrees that the obligations under this Agreement and the
Note Documents may be extended or renewed, in whole or in part, without notice
or further assent from such Guarantor and that such Guarantor will remain bound
under this Article X notwithstanding the extension or renewal of any such
obligation.
10.02 Limitation on Guarantor Liability.
Each Guarantor, and by its acceptance of Notes, each Holder, hereby
confirms that it is the intention of all such parties that the Note Guarantee of
such Guarantor not constitute a fraudulent transfer or conveyance for purposes
of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar federal or state law to the extent applicable to any
Note Guarantee. To effectuate the foregoing intention, the Trustee, the Holders
and the Guarantors hereby irrevocably agree that the obligations of each
Guarantor under its Note Guarantee will be limited to the maximum amount as
will, after giving effect to all other contingent and fixed liabilities of such
Guarantor (including, without limitation, any guarantees under the New Credit
Agreement) and after giving effect to any collections from or payments made by
or on behalf of any other Guarantor in respect of the obligations of such other
Guarantor under its Note Guarantee or pursuant to its contribution obligations
under this Agreement, result in the obligations of such Guarantor under its Note
Guarantee not constituting a fraudulent conveyance or fraudulent transfer under
federal or state law.
10.03 Execution and Delivery of Note Guarantee.
To evidence its Note Guarantee set forth in Section 10.01, each
Guarantor hereby agrees that a notation of such Note Guarantee substantially in
the form included in Exhibit C shall be endorsed by an Officer of such Guarantor
on each Note authenticated and delivered by the Trustee and that this Agreement
shall be executed on behalf of such Guarantor by an Officer.
Each Guarantor hereby agrees that its Note Guarantee set forth in
Section 10.01 shall remain in full force and effect notwithstanding any failure
to endorse on each Note a notation of such Note Guarantee.
If an Officer whose signature is on this Agreement or on the Note
Guarantee no longer holds that office at the time the Trustee authenticates the
Note on which a Note Guarantee is endorsed, the Note Guarantee shall be valid
nevertheless.
The delivery of any Note by the Trustee, after the authentication
thereof hereunder, shall constitute due delivery of the Note Guarantee set forth
in this Agreement on behalf of the Guarantors.
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10.04 Guarantors May Consolidate, etc., on Certain Terms.
Except as otherwise provided in Section 5.03, no Guarantor may
consolidate with or merge with or into (whether or not such Guarantor is the
surviving Person) another Person, whether or not affiliated with such Guarantor.
In case of any such permitted consolidation, merger, sale or conveyance
and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee in form substantially similar to Exhibit D
hereof, of the Note Guarantee endorsed upon the Notes and the due and punctual
performance of all of the covenants and conditions of this Agreement to be
performed by the Guarantor, such successor Person shall succeed to and be
substituted for the Guarantor with the same effect as if it had been named
herein as a Guarantor. Such successor Person thereupon may cause to be signed
any or all of the Note Guarantees to be endorsed upon all of the Notes issuable
hereunder which theretofore shall not have been signed by the Company and
delivered to the Trustee. All the Note Guarantees so issued shall in all
respects have the same legal rank and benefit under this Agreement as the Note
Guarantees theretofore and thereafter issued in accordance with the terms of
this Agreement as though all of such Note Guarantees had been issued at the date
of the execution hereof.
10.05 Rights under the Note Guarantees.
No payment by any Guarantor pursuant to the provisions hereof shall
entitle such Guarantor to any payment out of any Collateral or give rise to any
claim of the Guarantors against the Trustee or any Holder.
Each Guarantor waives notice of the issuance, sale and purchase of the
Notes and notice from the Trustee or the Holders from time to time of any of the
Notes of their acceptance and reliance on its Note Guarantee.
No set-off, counterclaim, reduction or diminution of any obligation or
any defense of any kind or nature (other than performance by the Guarantors of
their obligations hereunder) that any Guarantor may have or assert against the
Trustee or any Holder shall be available hereunder to such Guarantor.
10.06 Primary Obligations.
The Obligations of each Guarantor hereunder shall constitute a guaranty
of payment and not of collection. Each Guarantor agrees that it is directly
liable to each Holder hereunder, that the obligations of each Guarantor
hereunder are independent of the Obligations of the Company or any other
Guarantor, and that a separate action may be brought against each Guarantor,
whether such action is brought against the Company or any other Guarantor or
whether the Company or any other Guarantor is joined in such action. Each
Guarantor agrees that its liability hereunder shall be immediate and shall not
be contingent upon the exercise or enforcement by the Trustee or the Holders of
whatever remedies they may have against the Company or any other Guarantor or
the enforcement of any lien or realization upon any security the Trustee may at
any time possess. Each Guarantor agrees that any release that may be given by
the Trustee or the Holders to the Company or any other Guarantor shall not
release such Guarantor.
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10.07 Waiver of Subrogation and Contribution.
Until this Agreement has been discharged, each Guarantor hereby
irrevocably waives any claim or other right which it may now or hereafter
acquire against the Company or any guarantor (including any other Guarantor)
that arise from the existence, payment, performance or enforcement of such
Guarantor's obligations under its Note Guarantee herein, including any right of
subrogation, reimbursement, exoneration, contribution, indemnification, any
right to participate in any claim or remedy of the Trustee or any Holder against
the Company or any guarantor or any Collateral which the Trustee or any Holder
now has or hereafter acquires, whether or not such claim, remedy or right arises
in equity, or under contract, statute or common law, including the right to take
or receive from the Company, directly or indirectly, in cash or other property
or by setoff or in any other manner, payment or security on account of such
claim or other rights. If any amount shall be paid to such Guarantor in
violation of the preceding sentence and the Guaranteed Obligations shall not
have been paid in full, such amount shall be deemed to have been paid to such
Guarantor for the benefit of, and held in trust for the benefit of, the Trustee
and the Holders, and shall forthwith be paid to the Trustee for the benefit of
the Holders to be credited and applied to the Guaranteed Obligations, whether
matured or unmatured, in accordance with the terms of this Agreement. Each
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by this Agreement and that the waivers
set forth in this Section 10.07 are knowingly made in contemplation of such
benefits.
10.08 Cumulative Remedies.
The remedies herein provided are cumulative and not exclusive of any
remedies provided by law. The Trustee and the Holders shall have all the rights
and remedies granted in this Agreement and the other Note Documents and
available at law or in equity, and these same rights and remedies may be pursued
separately, successively or concurrently against the Company or any Guarantor,
or any Collateral.
10.09 Successors and Assigns. This Article X shall be binding upon each
Guarantor and its successors and assigns and shall inure to the benefit of the
successors and assigns of the Trustee and the Holders and, in the event of any
transfer or assignment of rights by any Holder or the Trustee, the rights and
privileges conferred upon that party in this Agreement and in the other Note
Documents shall automatically extend to and be vested in such transferee or
assignee, all subject to the terms and conditions of this Agreement.
10.10 Guarantee by Future Subsidiaries.
Pursuant to Section 5.13 of this Agreement, any new Subsidiary formed
or acquired after the Issue Date shall become a Guarantor under this Agreement
and shall deliver all such Note Documents required pursuant to Section 5.13.
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ARTICLE XI
COLLATERAL
11.01 Delivery of Security Documents.
(a) Not later than the Issue Date, the Company and the Guarantors
party thereto shall have executed and delivered to the Trustee for the benefit
of the Holders:
(i) One or more Uniform Commercial Code filing
authorization letters, duly executed by each Note Party or its
representative, together with appropriate financing statements on Form
UCC-1 duly filed in such office or offices as may be necessary to
perfect the Trustee's Liens in and to the Collateral of such Note
Party, and the Trustee shall have received confirmation of the filing
of all such financing statements;
(ii) Each of the following documents, duly executed, and
each such document shall be in full force and effect:
(1) The Collateral Access Agreements with
respect to the locations set forth on Schedule 3.1(d) of the New Credit
Agreement,
(2) the Control Agreement,
(3) the Copyright Security Agreement,
(4) the Environmental Indemnity Agreements,
(5) the Guarantor Security Agreement, which
shall, among other things, grant the Trustee a Lien on the Reservation
Management System,
(6) the Guaranty Agreement,
(7) the Note Guarantees,
(8) the Intercreditor Agreement,
(9) the Patent and Trademark Security Agreement,
(10) the Quebec Security Documents, and
(11) the Stock Pledge Agreement.
The items set forth in this Section 11.01(b), together with
the Mortgages and related fixture filings and the Mortgage Policies,
are collectively referred to as the "Security Documents".
(iii) The Trustee shall have received Uniform Commercial
Code, tax and judgment lien searches confirming the absence of, and
mortgage releases, termination
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statements and other release documents from JPMorgan and any other
Person necessary to release any Liens on the Collateral, other than the
Permitted Liens;
(b) Within 60 days after the Issue Date, the Note Parties shall
have delivered to the Trustee the Mortgages, related fixture filings and the
Mortgage Policies;
(c) Within 150 days after the Issue Date, the Company shall, or
shall cause the other Note Parties to:
(i) (1) register, or cause to be registered, with the
State of Arizona each Vehicle (excluding any trailer) owned by any
Borrower or any Guarantor (other than U-Haul Co. of Alaska or U-Haul of
Hawaii, Inc.) and (2) obtain a new Certificate of Title for each such
Vehicle registered pursuant to clause (1) naming (A) (x) U-Haul
(Canada) as the registered owner of such Vehicles operated primarily in
Canada, or (y) U-Haul Co. of Arizona, an Arizona corporation, as the
registered owner of all other such Vehicles, (B) on new Certificates of
Title obtained prior to May 21, 2003, "FOOTHILL CAPITAL CORP.", as the
first priority lienholder and (C) on new Certificates of Title obtained
on or after May 21, 2003, "XXXXX FARGO FOOTHILL, INC., AS AGENT" or, if
space does or did not permit, "XXXXX FARGO FOOTHILL AGENT", as the
first priority lienholder thereon and "XXXXX FARGO BANK, N.A.,
TRUSTEE," as the second priority lienholder to the Bank Lenders' Agent;
(ii) (1) register, or cause to be registered, with the
State of Alaska each Vehicle (excluding any trailer) owned by U-Haul
Co. of Alaska, and (2) obtain a new Certificate of Title for each such
Vehicle registered pursuant to clause (1) naming (A) U-Haul Co. of
Alaska, an Alaskan corporation, as the registered owner and (B) "XXXXX
FARGO FOOTHILL, INC., AS AGENT" or, if space does or did not permit,
"XXXXX FARGO FOOTHILL AGENT", as the first priority lienholder thereon
and "XXXXX FARGO BANK, N.A., TRUSTEE," as the second priority
lienholder to the Bank Lenders' Agent;
(iii) (1) register, or cause to be registered, with the
State of Hawaii each Vehicle (excluding any trailer) owned by U-Haul of
Hawaii, Inc. and (2) obtain a new Certificate of Title for each such
Vehicle registered pursuant to clause (1) naming (A) U-Haul of Hawaii,
Inc., a Hawaiian corporation, as the registered owner and (B) "XXXXX
FARGO FOOTHILL, INC., AS AGENT" or, if space does or did not permit,
"XXXXX FARGO FOOTHILL AGENT", as the first priority lienholder thereon
and "XXXXX FARGO BANK, N.A., TRUSTEE," as the second priority
lienholder to the Bank Lenders' Agent; and
(iv) (1) deliver such original Certificates of Title after
registration thereof to Xxxxxxx Xxxxxx or Xxxx Xxxxxx at the Company's
location at 0000 Xxxxx Xxxxxxx, Xxxxxxx, Xxxxxxx 00000, (2) deliver to
the Trustee evidence of approval from the State of Arizona for
Borrowers to process and register the Certificates of Title, in form
and substance reasonably satisfactory to Bank Lenders' Agent, and (3)
deliver to the Trustee a fidelity insurance policy naming the Trustee
as loss payee or bond endorsed to the
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Trustee, in each case in form and substance reasonably satisfactory to
Bank Lenders' Agent;
If ninety percent (90%) of the Certificates of Title are not registered
pursuant to this Section 11.01(c) within 150 days after the Issue Date, an
Officer of the Company shall promptly notify in writing the Trustee of such and
the applicable interest rate on the Notes shall increase by twenty-five (25)
basis points each fiscal quarter, applied cumulatively, up to a maximum increase
of one percent (1%) on the interest rate on the Notes applicable as of the Issue
Date, such increase in the interest rate on the Notes to commence from the Issue
Date until such time as ninety percent (90%) of the Certificates of Title are
registered pursuant to this Agreement (an Officer of the Company shall promptly
notify in writing the Trustee when ninety percent (90%) of the Certificates of
Title are registered pursuant to this Agreement);
(d) Within 60 days of the Issue Date, Borrowers shall have
received and delivered to the Trustee zoning letters, in form and substance
acceptable to Bank Lenders' Agent, duly executed by the appropriate Governmental
Authorities, for the Real Property Collateral located at the locations on
Schedule 3.2(d) of the New Credit Agreement;
(e) Within 60 days of the Issue Date, the Trustee shall have
received subordination, non-disturbance and attornment agreements duly executed
by the applicable Note Party and tenant in favor of the Trustee with respect to
the properties set forth on Schedule 3.2(e) of the New Credit Agreement, the
form and substance of which are reasonably satisfactory to Bank Lenders' Agent;
and
(f) Promptly after delivering the Credit Card Agreements to the
Bank Lenders' Agent, Borrowers shall deliver copies of such agreements to the
Trustee.
11.02 Recording and Opinions.
(a) Not later than the Issue Date (or the date 60 days after the
Issue Date with respect to the Mortgage, related fixture filings and the
Mortgage Policies), the Company and the Guarantors, at their sole expense, will
cause the Security Documents to be recorded, registered and filed in such manner
and in such places as may be necessary or as may be reasonably requested by the
Trustee to create or perfect the Liens in the Collateral intended to be created
by the Security Documents. Thereafter, until the release of the Collateral as
provided in Section 11.04 or in the Security Documents, the Company and the
Guarantors, at their sole expense, will cause the Security Documents to be
re-recorded, re-registered or refiled in such manner and in such places as may
be necessary or as may be reasonably requested by the Trustee in order to fully
preserve and protect the Liens in the Collateral created by the Security
Documents.
(b) The Company shall furnish to the Trustee within three months
after the execution and delivery of this Agreement, an opinion or opinions of
counsel required under Section 314(b)(1) of the TIA, and within five Business
Days after each anniversary of the Issue Date, an opinion of counsel required
under Section 314(b)(2) of the TIA.
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11.03 Possession and Use of Collateral.
So long as no Event of Default has occurred and is continuing, the
Company and the Guarantors will have the right to remain in possession of and
exercise complete control over the Collateral, except for such of the Collateral
as is required to be in the possession of the Bank Lenders' Agent, the Trustee
or the Bank Lenders' Collateral Agent in order to perfect the Liens in such
Collateral granted by the Security Documents.
11.04 Release and Disposition of Collateral.
The Collateral shall be released from the Lien of the Security
Documents as expressly provided therein and the Trustee shall release any Lien
on any Collateral:
(a) upon satisfaction and discharge of this Agreement as provided
in Article XII hereof;
(b) upon Legal Defeasance or Covenant Defeasance as provided in
Article VIII hereof; provided, however, that any and all funds deposited for the
benefit of the Trustee on behalf of the Holders in connection with any Legal or
Covenant Defeasance shall remain subject to a Lien in favor of the Trustee, for
the benefit of the Holders,
(c) constituting property being sold or disposed of if a release
is required or desirable in connection therewith and if the Company certifies to
the Trustee that the sale or disposition is permitted under Section 5.04 of this
Agreement or the other Note Documents (and the Trustee may rely conclusively on
any such certificate, without further inquiry),
(d) constituting property in which no Note Party owned any
interest at the time the Trustee's Lien was granted or at any time thereafter,
(e) constituting property leased to a Note Party under a lease
that has expired or is terminated in a transaction permitted under this
Agreement, or
(f) as required by the Intercreditor Agreement.
Except as provided above, the Trustee will not execute and deliver a
release of any Lien on any Collateral without the prior written authorization of
(i) if the release is of all or any substantial portion of the Collateral (which
shall be deemed to include sales or other dispositions of Collateral with a Fair
Market Valuation in excess of $35,000,000 over the Fair Market Valuation of the
Collateral that may be sold or otherwise disposed of under Section 5.04 hereof),
all of the Holders of the Notes, or (ii) otherwise, the Required Holders. Upon
request by the Trustee or the Company at any time, the Holders of the Notes will
confirm in writing Trustee's authority to release any such Liens on particular
types or items of Collateral pursuant to this Section 11.04; provided, however,
that (1) the Trustee shall not be required to execute any document necessary to
evidence such release on terms that, in Trustee's opinion, would expose the
Trustee to liability or create any obligation or entail any consequence other
than the release of such Lien without recourse, representation, or warranty, and
(2) such release shall not in any manner discharge, affect, or impair the
Obligations or any Liens (other than those expressly being released) upon (or
obligations of Note Parties in respect of) all interests retained by Note
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Parties, including, the proceeds of any sale, all of which shall continue to
constitute part of the Collateral.
The Trustee shall have no obligation whatsoever to any of the Holders
of the Notes to assure that the Collateral exists or is owned by Borrowers or
Guarantors or is cared for, protected, or insured or has been encumbered, or
that the Trustee's Liens have been properly or sufficiently or lawfully created,
perfected, protected, or enforced or are entitled to any particular priority, or
to exercise at all or in any particular manner or under any duty of care,
disclosure or fidelity, or to continue exercising, any of the rights,
authorities and powers granted or available to the Trustee pursuant to any of
the Note Documents, it being understood and agreed that in respect of the
Collateral, or any act, omission, or event related thereto, subject to the terms
and conditions contained herein, the Trustee may act in any manner it may deem
appropriate, in its sole discretion given Trustee's own interest in the
Collateral in its capacity as one of the Holders of the Notes and that the
Trustee shall have no other duty or liability whatsoever to any Holder of a Note
as to any of the foregoing, except as otherwise provided herein.
Notwithstanding any provision in the Note Documents to the contrary,
the Holders of the Notes hereby irrevocably authorize the Trustee, and the
Trustee hereby agrees that it shall, upon the written request of Company,
execute, have acknowledged as appropriate, and deliver to Company such release
documents as are reasonably necessary or appropriate under the circumstances to
effect the release of any Collateral to the extent the sale of such Collateral
is permitted under this Agreement. The Trustee shall deliver any such release
documents to Company (or, if applicable, any closing attorney) to hold in escrow
pending the closing of the related transaction. In the event the closing of such
transaction does not occur, Company shall promptly return to the Trustee the
release documents executed and delivered by the Trustee.
To the extent applicable, the Company shall cause TIA Section 314(d) to
be complied with in connection with any release of Collateral from the Liens of
the Security Documents. Any certificate or opinion required by TIA Section
314(d) may be made by means of an Officer's Certificate, except in cases in
which TIA Section 314(d) requires that such certificate or opinion be made by an
independent Person.
11.05 Intercreditor Agreement.
Not later than the Issue Date, the Trustee and the Bank Lenders'
Collateral Agent, shall have entered into the Intercreditor Agreement. Each
Holder agrees to be bound by the terms of the Intercreditor Agreement. The Note
Parties are not a party to, nor beneficiary of, such Intercreditor Agreement,
and nothing in this paragraph nor the Intercreditor Agreement shall impair,
limit or otherwise affect the grant of security interest herein or any of the
Note Parties duties or obligations under the Note Documents.
11.06 Grant of Security Interest.
Each Note Party hereby grants to the Trustee, for the benefit of the
Holders, a continuing security interest (second only to the first priority
security interests granted to Bank Lenders' Agent pursuant to the New Credit
Agreement) in all of its right, title, and interest in all of its currently
existing and hereafter acquired or arising Personal Property Collateral, in
order to
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secure prompt repayment of any and all of the Obligations hereunder in
accordance with the terms and conditions of the Note Documents and in order to
secure prompt performance by the Note Parties of each of their covenants and
duties under the Note Documents. The Trustee's Liens in and to the Personal
Property Collateral, shall attach to all Personal Property Collateral without
further act on the part of the Trustee or the Note Parties. Anything contained
in this Agreement or any of the Note Document to the contrary notwithstanding,
except for Permitted Dispositions, the Note Parties have no authority, express
or implied, to dispose of any item or portion of such assets.
11.07 Negotiable Collateral and Chattel Paper.
Each Note Party covenants and agrees with Agent that from and after the
Closing Date and until the date of release of the Collateral in accordance with
Section 11.04 hereof:
(a) In the event that any Collateral, including proceeds, is
evidenced by or consists of Negotiable Collateral of any Note Party, and if and
to the extent that perfection of priority of the Trustee's security interest
with respect to such Collateral is dependent on or enhanced by possession, the
applicable Note Party, immediately upon the request of the Trustee, shall
endorse and deliver physical possession of such Negotiable Collateral to the
Trustee;
(b) Upon request by the Trustee, each Note Party shall take all
steps reasonably necessary to grant the Trustee control of all electronic
Chattel Paper of such Note Party in accordance with the Code and all
"transferable records as defined in each of the Uniform Electronic Transactions
Act and the Electronic Signatures in Global and National Commerce Act to the
extent that such steps do not conflict with the terms and provisions of the New
Credit Agreement;
(c) In the event any Note Party, with Trustee's consent, retains
possession of any Chattel Paper or instruments otherwise required to be endorsed
and delivered to the Trustee pursuant to Section 11.07(a), all of such Chattel
Paper and instruments shall be marked with the following legend: "This writing
and the obligations evidenced or secured thereby are subject to the security
interest (second in priority only to the first priority security interests
granted to Xxxxx Fargo Foothill, Inc., as agent, pursuant to that Loan and
Security Agreement dated as of March __, 2004) of Xxxxx Fargo Bank, N.A., as the
Trustee under the Indenture, dated as of March __, 2004, for the 9% Second Lien
Senior Secured Notes Due 2009", if such requirement does not conflict with the
terms and provisions of the New Credit Agreement.
11.08 Collection of Accounts, General Intangibles, and Negotiable
Collateral.
At any time after the occurrence and during the continuation of an
Event of Default, the Trustee or the Trustee's designee may (a) notify Account
Debtors of Note Parties that the Note Parties' Accounts, Chattel Paper, or
General Intangibles (other than the Excluded Assets) have been assigned to the
Trustee or that the Trustee has a security interest therein, or (b) collect the
Note Parties' Accounts, Chattel Paper, or General Intangibles (other than the
Excluded Assets) directly and charge the collection costs and expenses to the
Note Parties. Each Note Party agrees that it will hold in trust for the Trustee,
for the benefit of the Holders, any Collections that it
104
receives and immediately will deliver said Collections to the Trustee in their
original form as received by the applicable Note Party.
11.09 Delivery of Additional Documentation Required.
Each Note Party hereby authorizes the Trustee to file, transmit, or
communicate, as applicable, Uniform Commercial Code financing statements and
amendments describing the Collateral as "all personal property of debtor" or
"all assets of debtor" or words of similar effect in order to perfect the
Trustee's Liens on the Collateral without any Note Party's signature, to the
extent permitted by Applicable Law; provided, however, the Trustee shall clearly
identify Excluded Assets as excepted items. Notwithstanding the foregoing, at
any time upon the request of the Trustee, the Note Parties shall execute and
deliver to the Trustee any and all financing statements, original financing
statements in lieu of continuation statements, fixture filings, security
agreements, pledges, assignments, endorsements of certificates of title,
supplements, and all other documents (the "Additional Documents") upon which
Note Party's signature may be required to perfect and continue perfection of or
better perfect the Trustee Liens in the Collateral (whether now owned or
hereafter arising or acquired), to create and perfect Liens in favor of the
Trustee in any Real Property (whether now owned or hereafter arising or
acquired), and in order to fully consummate all of the transactions contemplated
hereby and under the other Note Documents. To the maximum extent permitted by
Applicable Law, each Note Party authorizes the Trustee to execute any such
Additional Documents in the applicable Note Party's name and authorizes the
Trustee to file such executed Additional Documents in any appropriate filing
office; provided, however, that the failure by the Trustee to so provide such
filings shall not affect the authorizations herein. Each Note Party also hereby
ratifies its authorization for the Trustee to have filed in any jurisdiction any
Uniform Commercial Code financing statements or amendments thereto if filed
prior to the Issue Date. No Note Party shall terminate, amend or file a
correction statement with respect to any Uniform Commercial Code financing
statement filed pursuant to this Section 11.09 without the Trustee's prior
written consent. In addition, on a quarterly basis as the Trustee shall require,
the Note Parties shall (a) cause all patents, copyrights, and trademarks
acquired or generated by the Note Parties that are not already the subject of a
registration with the appropriate filing office (or an application therefor
diligently prosecuted) to be registered with such appropriate filing office in a
manner sufficient to impart constructive notice of the Note Parties' ownership
thereof, and (b) cause to be prepared, executed, and delivered to the Trustee
supplemental schedules to the applicable Note Documents to identify such
patents, copyrights, and trademarks as being subject to the security interests
created thereunder. The Company shall provide the Trustee with notice that any
Note Party has made a Permitted Investment of the type described in clause (e),
(g) or (k) of the definition of "Permitted Investment" promptly, but in any
event within 5 Business Days, following the consummation thereof and, upon the
request of the Trustee, the relevant Note Party shall execute and deliver (or
cause to be executed and delivered to the Trustee) any and all Additional
Documents requested by the Trustee to perfect the Trustee's Liens in such
Permitted Investment.
11.10 Power of Attorney.
Each Note Party hereby irrevocably makes, constitutes, and appoints the
Trustee (and any of the Trustee's officers, employees, or agents designated by
the Trustee) as such Note Party's true and lawful attorney, with power to (a) if
such Note Party refuses to execute and deliver, or
105
fails timely to execute and deliver any of the documents described in Section
11.09, (b) at any time that an Event of Default has occurred and is continuing,
sign such Note Party's name on any invoice or xxxx of lading relating to the
Collateral, drafts against Account Debtors of such Note Party, or notices to
such Account Debtors, (c) send requests for verification of such Note Party's
Accounts, (d) endorse such Note Party's name on any Collection item that may
come into the Trustee' possession, (e) at any time that an Event of Default has
occurred and is continuing, make, settle, and adjust all claims under such Note
Party's policies of insurance and make all determinations and decisions with
respect to such policies of insurance, and (f) at any time that an Event of
Default has occurred and is continuing, settle and adjust disputes and claims
respecting such Note Party's Accounts, Chattel Paper, or General Intangibles
other than the Excluded Assets directly with Account Debtors of such Note Party,
for amounts and upon terms that the Trustee determines to be reasonable, and the
Trustee may cause to be executed and delivered any documents and releases that
the Trustee determines to be necessary. The appointment of the Trustee as each
Note Party's attorney, and each and every one of its rights and powers, being
coupled with an interest, is irrevocable until all of the Obligations under the
Note Documents have been fully and finally repaid and performed.
11.11 Control Agreements.
Each Note Party agrees that it will not transfer assets out of any
Securities Accounts other than as permitted under Section 5.18 and, if to
another securities intermediary, unless each of the applicable Note Party, the
Trustee, and the substitute securities intermediary have entered into a Control
Agreement. No arrangement contemplated hereby or by any Control Agreement in
respect of any Securities Accounts or other Investment Property of the Note
Parties shall be modified by the Note Parties without the prior written consent
of the Trustee. Upon the occurrence and during the continuance of a Default or
Event of Default, the Trustee may notify any securities intermediary to
liquidate the applicable Securities Account or any related Investment Property
maintained or held thereby and remit the proceeds thereof to the Trustee.
11.12 Commercial Tort Claims.
Borrowers shall promptly notify the Trustee in writing in the event any
Note Party shall incur or otherwise obtain a Commercial Tort Claim in excess of
$100,000 after the Issue Date against any third party and, upon the request of
the Trustee, shall promptly authorize the filing of additional Uniform
Commercial financing statements or amendments to existing Uniform Commercial
Code financing statements, and do such other acts or things deemed necessary or
desirable by the Trustee to grant the Trustee a perfected security interest
(second in priority only to the first priority security interests granted to
Bank Lenders' Agent pursuant to the New Credit Agreement) in any such Commercial
Tort Claim, including, without limitation executing an assignment of such
Commercial Tort Claim.
11.13 Grants, Rights and Remedies.
The Liens and security interests granted by each Note Party to the
Trustee by and pursuant to Section 11.06 hereof may be independently granted by
the Note Documents hereafter entered into. This Agreement and such other Note
Documents supplement each other, and the grants, priorities, rights and remedies
of the Trustee hereunder and thereunder are cumulative.
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11.14 Survival.
The Liens and security interests granted to the Trustee (for the
benefit of the Holders), the priority of such Liens and security interest, and
the administrative priorities and other rights and remedies granted to the
Trustee pursuant to this Agreement and the other Note Documents (specifically
including but not limited to the existence, perfection and priority of the Liens
and security interest provided herein and therein) shall not be modified,
altered or impaired in any manner by any other financing or extension of credit
or incurrence of debt by any Note Party or by any other act or omission
whatsoever.
11.15 Authorization of Actions to be Taken by the Trustee Under the
Collateral Documents.
The Trustee may, in its sole discretion and without the consent of the
Holders, take all actions or direct, on behalf of the Holders, the Collateral
Trustee or any Co-Collateral Trustee or separate Collateral Trustee to take all
actions it deems necessary or appropriate to (a) enforce any of the terms of the
Security Documents and (b) collect and receive any and all amounts payable in
respect of the obligations of the company under this Article XI. Subject to the
provisions of this Agreement and the other Security Documents, the Trustee shall
have power to institute and to maintain such suits and proceedings as it may
deem expedient to prevent any impairment of the Collateral by any acts which may
be unlawful or in violation of the Security Documents or this Agreement, and
such suits and proceedings as it may deem expedient to preserve or protect its
interest and the interests of the Holders in the Collateral (including power to
institute and maintain suits or proceedings to restrain the enforcement of or
compliance with any legislative or other governmental enactment, rule or order
that may be unconstitutional or otherwise invalid if the enforcement of or
compliance with, such enactment, rule or order would impair the security
interest hereunder or be prejudicial to the interests of the Holders or of the
Collateral Trustee in any such capacity).
11.16 Quebec Security.
For greater certainty, and without limiting the powers of the Trustee
or any other Person acting as trustee or agent for the Holders hereunder or
under any of the Note Documents, each Note Party hereby acknowledges that, for
purposes of holding any Liens, including hypothecs, granted or to be granted by
any Note Party on movable or immovable property pursuant to the laws of the
Province of Quebec to secure obligations of any Note Party under any bond issued
by any Note Party, the Trustee shall be the holder of an irrevocable power of
attorney (fonde de pouvoir within the meaning of Article 2692 of the Civil Code
of Quebec) (the "Fonde de pouvoir") for and on behalf of all present and future
Holders. Each Holder hereby (i) irrevocably constitutes, to the extent
necessary, the Trustee as the Fonde de pouvoir in order to hold Liens, including
hypothecs, granted or to be granted by any Note Party on movable and immovable
property pursuant to the laws of the Province of Quebec to secure obligations of
any Note Party under any bond issued by any Note Party; and (ii) appoints and
agrees that the Trustee, acting as trustee for the Holders, may act as the
bondholder and mandatory with respect to any bond that may be issued and pledged
from time to time for the benefit of the Holders. Without limitation to the
foregoing, to the extent that any Person becomes a Holder by accepting,
purchasing or
107
acquiring a Note, such Person shall be automatically deemed to have ratified and
consented to the power of attorney and appointment constituted in this Section
11.16.
Notwithstanding the provisions of Section 32 of the An Act respecting
the special powers of legal persons (Quebec), the Trustee may purchase, acquire
and be the holder of any bond issued by any Note Party (i.e. the Fonde de
pouvoir may acquire and hold the first bond issued under any deed of hypothec
granted by any Note Party). Each Note Party hereby acknowledges that any such
bond shall constitute a title of indebtedness, as such term is used in Article
2692 of the Civil Code of Quebec.
For greater certainty, the trustee herein appointed as Fonde de
pouvoir, bondholder and mandatary shall have the same rights, powers and
immunities as the Trustee as stipulated in Article VII, which shall apply
mutatis mutandis. Without limitation, the provisions of section 7.08 hereunder
shall apply mutatis mutandis to the resignation and appointment of a successor
to the Trustee acting as Fonde de pouvoir, bondholder and mandatary.
ARTICLE XII
SATISFACTION AND DISCHARGE
12.01 Satisfaction and Discharge.
This Agreement shall be discharged and will cease to be of further
effect (except as to rights of registration of transfer or exchange of Notes
which shall survive until all Notes have been canceled) as to all outstanding
Notes issued hereunder, when either:
(a) all the Notes that have been authenticated and delivered
(except lost, stolen or destroyed Notes which have been replaced or paid and
Notes for whose payment money has been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or discharged from
this trust) have been delivered to the Trustee for cancellation, or
(b) (i) all Notes not delivered to the Trustee for cancellation
otherwise have become due and payable or have been called for redemption
pursuant to Section 3.07 hereof, and the Company has irrevocably deposited or
caused to be deposited with the Trustee trust funds in trust in an amount of
money sufficient, in the opinion of a nationally recognized firm of independent
public accountants selected and paid for by the Company and reasonably
satisfactory to the Trustee, to pay and discharge the entire Indebtedness
(including all principal and accrued interest, premiums, fees and Additional
Interest) on the Notes not theretofore delivered to the Trustee for
cancellation,
(ii) the Company has paid all sums payable by it under
this Agreement,
(iii) the Company has delivered irrevocable instructions to
the Trustee to apply the deposited money toward the payment of the
Notes at maturity or on the date of redemption, as the case may be,
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(iv) the Holders have a valid, perfected, exclusive first
priority security interest in such deposited money,
(v) the Trustee or Paying Agent has not received
instructions from the Company or an Affiliate or subsidiary thereof,
not to make such payment or is not prohibited from paying such payments
to the Holders of the Notes pursuant to this Agreement and the Notes,
and
(vi) the Company shall have delivered an Officers'
Certificate and an opinion of counsel to the Trustee stating that all
such obligations of the Company and the Guarantors have been performed
or satisfied and that all of the conditions precedent to satisfaction
and discharge have been satisfied.
12.02 Application of Trust Money.
Subject to the provisions of Section 8.06, all money deposited with the
Trustee pursuant to Section 12.01 shall be held in trust and applied by it, in
accordance with the provisions of the Notes and this Agreement, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own Paying Agent) as the Trustee may determine, to the Persons entitled thereto,
of the principal (and premium, fees or Additional Interest, if any) and interest
for whose payment such money has been deposited with the Trustee; but such money
need not be segregated from other funds except to the extent required by law.
If the Trustee or Paying Agent is unable to apply any money or U.S.
Government Obligations in accordance with this Section 12.02 by reason of any
legal proceeding or by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
application, the Company's and any Guarantor's obligations under this Agreement
and the Notes shall be revived and reinstated as though no deposit had occurred
pursuant to Section 12.01; provided, however, that if the Company has made any
payment of principal of, premium, fees or interest on any Notes because of the
reinstatement of its obligations, the Company shall be subrogated to the rights
of the Holders of such Notes to receive such payment from the money or U.S.
Government Obligations held by the Trustee or Paying Agent.
ARTICLE XIII
MISCELLANEOUS
13.01 Trust Indenture Act Controls.
If any provision of this Agreement limits, qualifies or conflicts with
the duties imposed by TIA Section 318(c), the imposed duties shall control.
13.02 Notices.
Any notice or communication by the Company, any Guarantor or the
Trustee to the others is duly given if in writing and delivered in Person or
mailed by first class mail (registered
109
or certified, return receipt requested), telex, telecopier or overnight air
courier guaranteeing next day delivery, to the others' address:
If to the Company and/or any Guarantor:
AMERCO
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxx, Xxxxxx 00000-0000
Telecopier No.: (000) 000-0000
Attention: Assistant Treasurer
With a copy to:
Squire, Xxxxxxx & Xxxxxxx L.L.P.
Two Renaissance Square
00 Xxxxx Xxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Telecopier No.: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxxxx, Esq.
If to the Trustee:
Xxxxx Fargo Bank, N.A.
Corporate Trust Services
Sixth & Marquette; X0000-000
Xxxxxxxxxxx, XX 00000
Telecopier: (000) 000-0000
Attention: Corporate Trust Administration: AMERCO Notes
The Company, any Guarantor or the Trustee, by notice to the others may
designate additional or different addresses for subsequent notices or
communications.
All notices and communications (other than those sent to Holders) shall
be deemed to have been duly given: at the time delivered by hand, if personally
delivered; five Business Days after being deposited in the mail, postage
prepaid, if mailed; when receipt acknowledged, if telecopied; and the next
Business Day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next day delivery.
Any notice or communication to a Holder shall be mailed by first class
mail, certified or registered, return receipt requested, or by overnight air
courier guaranteeing next day delivery to its address shown on the register kept
by the Registrar. Any notice or communication shall also be so mailed to any
Person described in TIA Section 313(c), to the extent required by the TIA.
Failure to mail a notice or communication to a Holder or any defect in it shall
not affect its sufficiency with respect to other Holders.
110
If a notice or communication is mailed in the manner provided above
within the time prescribed, it is duly given, whether or not the addressee
receives it.
If the Company mails a notice or communication to Holders, it shall
mail a copy to the Trustee and each Agent at the same time.
13.03 Communication by Holders of Notes with Other Holders of Notes.
Holders may communicate pursuant to TIA Section 312(b) with other
Holders with respect to their rights under this Agreement or the Notes. The
Company, the Trustee, the Registrar and anyone else shall have the protection of
TIA Section 312(c).
13.04 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take
any action under this Agreement, the Company shall furnish to the Trustee:
(a) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.05 hereof) stating that among other things in the opinion of the
signers, all conditions precedent and covenants, if any, provided for in this
Agreement relating to the proposed action have been satisfied; and
(b) an opinion of counsel in form and substance reasonably
satisfactory to the Trustee (which shall include the statements set forth in
Section 13.05 hereof) stating that among other things, in the opinion of such
counsel, all such conditions precedent and covenants have been satisfied.
13.05 Statements Required in Certificate or Opinion.
Each certificate or opinion with respect to compliance with a condition
or covenant provided for in this Agreement (other than a certificate provided
pursuant to TIA Section 314(a)(4)) shall comply with the provisions of TIA
Section 314(e) and shall include:
(a) a statement that the Person making such certificate or opinion
has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions contained in
such certificate or opinion are based;
(c) a statement that, in the opinion of such Person, he or she has
made such examination or investigation as is necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
satisfied; and
(d) a statement as to whether or not, in the opinion of such
Person, such condition or covenant has been satisfied.
111
13.06 Rules by the Trustee and Agents.
The Trustee may make reasonable rules for action by or at a meeting of
Holders. The Registrar or Paying Agent may make reasonable rules and set
reasonable requirements for its functions.
13.07 No Personal Liability of Directors, Officers, Employees and
Stockholders.
No past, present or future director, officer, employee, incorporator or
stockholder of the Company or any Guarantor, as such, shall have any liability
for any obligations of the Company or any Guarantor under the Notes, the Note
Guarantees, this Agreement or for any claim based on, in respect of, or by
reason of, such obligations or their creation. Each Holder by accepting a Note
waives and releases all such liability. The waiver and release are part of the
consideration for issuance of the Notes and the Note Guarantees. Notwithstanding
the foregoing nothing in this provision shall be construed as a waiver or
release of any claims under the federal securities laws.
13.08 Confidentiality.
The Trustee, Collateral Trustee and any Co-Collateral Trustee (and not
jointly or jointly and severally) agree that non-public information regarding
the Note Parties, their operations, assets, and existing and contemplated
business plans (clearly marked and identified as such in writing by the Company
on the face of such information) shall be treated by the Trustee, Collateral
Trustee and any Co-Collateral Trustee in a confidential manner, and shall not be
disclosed by the Trustee, Collateral Trustee and any Co-Collateral Trustee to
Persons who are not parties to this Agreement, except: (a) to attorneys for and
other advisors, accountants, auditors, and consultants to any of the Trustee,
Collateral Trustee and any Co-Collateral Trustee, (b) to Subsidiaries and
Affiliates of any of the Trustee, Collateral Trustee and any Co-Collateral
Trustee, provided that any such Subsidiary or Affiliate shall have agreed to
receive such information hereunder subject to the terms of this Section 13.08,
(c) as may be required by statute, decision, or the Court (as defined in the New
Credit Agreement) or other judicial or administrative order, rule, or
regulation, or to the extent requested by any regulatory authority purporting to
have jurisdiction over any of the Trustee, Collateral Trustee and any
Co-Collateral Trustee (including any self-regulatory authority, such as the
National Association of Insurance Commissioners), (d) as may be agreed to in
advance by the Company or as requested or required by any Governmental Authority
pursuant to any subpoena or other legal process, (e) as to any such information
that is or becomes generally available to the public (other than as a result of
prohibited disclosure by the Trustee, Collateral Trustee and any Co-Collateral
Trustee), (f) in connection with any litigation or other adversary proceeding
involving parties hereto which such litigation or adversary proceeding involves
claims related to the rights or duties of such parties under this Agreement, the
Notes or the other Security Documents, and (g) to Holders of Notes as provided
in this Agreement and the Security Documents. The provisions of this Section
13.08 shall survive for 2 years after the payment in full of the Obligations.
13.09 Governing Law.
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THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK BUT WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF
ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.
THE COMPANY AND EACH GUARANTOR HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY NEW YORK STATE COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK OR ANY FEDERAL COURT SITTING IN THE BOROUGH OF MANHATTAN IN
THE CITY OF NEW YORK IN RESPECT OF ANY SUIT, ACTION OR PROCEEDING ARISING OUT OF
OR RELATING TO THIS INDENTURE, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID
COURTS.
THE COMPANY AND EACH GUARANTOR IRREVOCABLY WAIVES, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TRIAL BY JURY AND ANY
OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH COURT HAS BEEN BROUGHT IN AN
INCONVENIENT FORUM.
THE COMPANY AND EACH GUARANTOR IRREVOCABLY CONSENTS, TO THE FULLEST
EXTENT IT MAY EFFECTIVELY DO SO UNDER APPLICABLE LAW, TO THE SERVICE OF PROCESS
OF ANY OF THE AFOREMENTIONED COURTS IN ANY SUCH ACTION OR PROCEEDING BY THE
MAILING OF COPIES THEREOF BY REGISTERED OR CERTIFIED MAIL, POSTAGE PREPAID, TO
THE COMPANY AND GUARANTOR AT THE ADDRESS SET FORTH HEREIN FOR THE COMPANY, SUCH
SERVICE TO BECOME EFFECTIVE THIRTY (30) DAYS AFTER SUCH MAILING. NOTHING HEREIN
SHALL AFFECT THE RIGHT OF ANY HOLDER TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST
THE COMPANY IN ANY OTHER JURISDICTION.
13.10 No Adverse Interpretation of Other Agreements.
This Agreement may not be used to interpret any other indenture, loan
or debt agreement of the Company or its Subsidiaries or of any other Person. Any
such indenture, loan or debt agreement may not be used to interpret this
Agreement.
13.11 Successors.
All agreements of the Company in this Agreement and the Notes shall
bind its successors. All agreements of the Trustee in this Agreement and the
Security Documents shall bind its successors. All agreements of each Guarantor
in this Agreement shall bind its successors, except as otherwise provided in
Sections 10.04 and 10.05.
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13.12 Severability.
In case any provision in this Agreement or in the Notes shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
13.13 Counterpart Originals.
The parties may sign any number of copies of this Agreement. Each
signed copy shall be an original, but all of them together represent the same
agreement.
13.14 Table of Contents, Headings, etc.
The Table of Contents, Cross-Reference Table and Headings of the
Articles and Sections of this Agreement have been inserted for convenience of
reference only, are not to be considered a part of this Agreement and shall in
no way modify or restrict any of the terms or provisions hereof.
13.15 Supremacy of this Agreement.
If any term, condition or provision of this Agreement shall be
inconsistent with any term, condition or provision of any other Note Document,
this Agreement shall control. Notwithstanding the above, if any term, condition
or provision of Article X hereof or the Note Guarantees shall be inconsistent
with any term, condition or provision of the Guarantee Agreement, the Guarantee
Agreement shall control.
13.16 Further Assurances.
Each Note Party shall, from time to time, execute and/or deliver such
documents, agreements, financing statements, and reports, and perform such acts
as Trustee at any time may reasonably request to carry out the purposes and
otherwise implement the terms and provisions provided for herein and in the
other Note Documents.
[Signatures on following pages]
114
SIGNATURES
Dated as of____________, 2004
AMERCO
By:________________________________
Name:
Title:
S-1
GUARANTORS:
AMERCO REAL ESTATE COMPANY, a Nevada
corporation
AMERCO REAL ESTATE SERVICES, INC. a Nevada
corporation
AMERCO REAL ESTATE COMPANY OF ALABAMA,
INC., an Alabama corporation
AMERCO REAL ESTATE COMPANY OF TEXAS, INC.
a Texas corporation
ONE PAC COMPANY, a Nevada corporation
TWO PAC COMPANY, a Nevada corporation
THREE PAC COMPANY, a Nevada corporation
FOUR PAC COMPANY, a Nevada corporation
FIVE PAC COMPANY, a Nevada corporation
SIX PAC COMPANY, a Nevada corporation
SEVEN PAC COMPANY, a Nevada corporation
EIGHT PAC COMPANY, a Nevada corporation
NINE PAC COMPANY, a Nevada corporation
TEN PAC COMPANY, a Nevada corporation
ELEVEN PAC COMPANY, a Nevada corporation
TWELVE PAC COMPANY, a Nevada corporation
FOURTEEN PAC COMPANY, a Nevada corporation
FIFTEEN PAC COMPANY, a Nevada corporation
SIXTEEN PAC COMPANY, a Nevada corporation
SEVENTEEN PAC COMPANY, a Nevada
corporation
NATIONWIDE COMMERCIAL CO., an Arizona
corporation
PF&F HOLDINGS CORPORATION, a Delaware
corporation
S-2
YONKERS PROPERTY CORPORATION, a New York
corporation
By:_______________________________________
Xxxxxx Xxxxxxxx, President
S-3
EMOVE, INC., a Nevada corporation
WEB TEAM ASSOCIATES, INC. a Nevada
corporation
By:_______________________________________
Xxxxxx Xxxxxxxx, Secretary
S-4
U-HAUL INSPECTIONS LTD., a British
Columbia corporation
By:_______________________________________
Xxxxxxxx Xxxxxx, Secretary
S-5
U-HAUL INTERNATIONAL, INC., a Nevada
corporation
A & M ASSOCIATES, INC., an Arizona
corporation
U-HAUL SELF-STORAGE CORPORATION, a Nevada
corporation
U-HAUL SELF-STORAGE MANAGEMENT (WPC),
INC., a Nevada corporation
U-HAUL BUSINESS CONSULTANTS, INC., an
Arizona corporation
U-HAUL LEASING & SALES CO., a Nevada
corporation
U-HAUL CO. OF ALABAMA, INC., an Alabama
corporation
U-HAUL CO. OF ALASKA, an Alaska
corporation
U-HAUL CO. OF ARIZONA, an Arizona
corporation
U-HAUL CO. OF ARKANSAS, an Arkansas
corporation
U-HAUL CO. OF CALIFORNIA, a California
corporation
U-HAUL CO. OF COLORADO, a Colorado
corporation
U-HAUL CO. OF CONNECTICUT, a Connecticut
corporation
U-HAUL CO. OF DISTRICT OF COLUMBIA, INC.,
a District of Columbia corporation
U-HAUL CO. OF FLORIDA, a Florida
corporation
U-HAUL CO. OF GEORGIA, a Georgia
corporation
U-HAUL OF HAWAII, INC., a Hawaii
corporation
U-HAUL CO. OF IDAHO, INC., an Idaho
corporation
U-HAUL CO. OF IOWA, INC., an Iowa
corporation
U-HAUL CO. OF ILLINOIS, INC., an Illinois
corporation
S-6
U-HAUL CO. OF INDIANA, INC., an Indiana
corporation
U-HAUL CO. OF KANSAS, INC., a Kansas
corporation
U-HAUL CO. OF KENTUCKY, a Kentucky
corporation
U-HAUL CO. OF LOUISIANA, a Louisiana
corporation
U-HAUL CO. OF MASSACHUSETTS AND OHIO,
INC., a Massachusetts corporation
U-HAUL CO. OF MARYLAND, INC., a Maryland
corporation
U-HAUL CO. OF MAINE, INC., a Maine
corporation
U-HAUL CO. OF MICHIGAN, a Michigan
corporation
U-HAUL CO. OF MINNESOTA, a Minnesota
corporation
U-HAUL COMPANY OF MISSOURI, a Missouri
corporation
U-HAUL CO. OF MISSISSIPPI, a Mississippi
corporation
U-HAUL CO. OF MONTANA, INC., a Montana
corporation
U-HAUL CO. OF NORTH CAROLINA, a North
Carolina corporation
U-HAUL CO. OF NORTH DAKOTA, a North Dakota
corporation
U-HAUL CO. OF NEBRASKA, a Nebraska
corporation
U-HAUL CO. OF NEVADA, INC., a Nevada
corporation
U-HAUL CO. OF NEW HAMPSHIRE, INC., a New
Hampshire corporation
U-HAUL CO. OF NEW JERSEY, INC. a New
Jersey corporation
U-HAUL CO. OF NEW MEXICO, INC., a New
Mexico corporation
S-7
U-HAUL CO. OF NEW YORK, INC., a New York
corporation
U-HAUL CO. OF OKLAHOMA, INC., an Oklahoma
corporation
U-HAUL CO. OF OREGON, an Oregon
corporation
U-HAUL CO. OF PENNSYLVANIA, a Pennsylvania
corporation
U-HAUL CO. OF RHODE ISLAND, a Rhode Island
corporation
U-HAUL CO. OF SOUTH CAROLINA, INC. a South
Carolina corporation
U-HAUL CO. OF SOUTH DAKOTA, INC., a South
Dakota corporation
U-HAUL CO. OF TENNESSEE, a Tennessee
corporation
U-HAUL CO. OF TEXAS, a Texas corporation
U-HAUL CO. OF UTAH, INC., a Utah
corporation
U-HAUL CO. OF VIRGINIA, a Virginia
corporation
U-HAUL CO. OF WASHINGTON, a Washington
corporation
U-HAUL CO. OF WISCONSIN, INC., a Wisconsin
corporation
U-HAUL CO. OF WEST VIRGINIA, a West
Virginia corporation
U-HAUL CO. OF WYOMING, INC., a Wyoming
corporation
U-HAUL CO. (CANADA) LTD. U-HAUL CO.
(CANADA) LTEE, an Ontario corporation
By:_______________________________________
Xxxx X. Xxxxxxxxxxx, Secretary
S-8
XXXXX FARGO BANK, N.A.,
as Trustee
By: ______________________________________
Name:
Title:
S-9
EXHIBIT A
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture]
[FACE OF NOTE]
================================================================================
CUSIP No. [ ]
ISIN No. [ ]
9.0% Second Lien Senior Secured Notes due 2009
No. ___ $____________
AMERCO
promises to pay to______________________________________________________________
or registered assigns,
the principal sum of____________________________________________________________
Dollars on________________, 2009.
Interest Payment Dates: ___________, ____________, ___________, and ____________
Record Dates: ___________, ____________, ___________, and ____________
AMERCO
By:_______________________________________
Name:
Title:
This is one of the Notes referred to in the within-mentioned Indenture:
Dated: _______________, ____
XXXXX FARGO BANK, N.A., as Trustee
By: __________________________________
Authorized Signatory [BACK OF NOTE]
================================================================================
A-1
[BACK OF NOTE]
9.0% SECOND LIEN SENIOR SECURED NOTES DUE 2009
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
INTEREST. AMERCO, a Nevada corporation (the "Company"), promises to pay
interest on the principal amount of this Note at 9.0% per annum from__________,
2004 until maturity. The Company will pay interest quarterly in arrears on
___________and _______________, ___________and _______________of each year, or
if any such day is not a Business Day, on the next succeeding Business Day
(each, an "Interest Payment Date"). Interest on the Notes will accrue from the
most recent date to which interest has been paid or, if no interest has been
paid, from the date of issuance; provided that if there is no existing Default
in the payment of interest, and if this Note is authenticated between a record
date referred to on the face hereof and the next succeeding Interest Payment
Date, interest shall accrue from such next succeeding Interest Payment Date;
provided, further, that the first Interest Payment Date shall be__________,
2004. The Company shall pay interest on overdue principal and premium, if any,
from time to time on demand at a rate that is 2.0% per annum in excess of the
rate then in effect; it shall pay interest (including post-petition interest in
any proceeding under any Bankruptcy Law) on overdue installments of interest and
Additional Interest (without regard to any applicable grace periods) from time
to time on demand at the same rate to the extent lawful. Interest will be
computed on the basis of a 360-day year of four 90-day quarters.
METHOD OF PAYMENT. The Company will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the ______________, _______________, ___________ or
_______________ next preceding the Interest Payment Date, even if such Notes are
canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Notes will be payable as to principal, premium, if any, and
interest at the office or agency of the Company maintained for such purpose
within or without the City and State of New York, or, at the option of the
Company, payment of interest may be made by check mailed to the Holders at their
addresses set forth in the register of Holders, and provided that payment by
wire transfer of immediately available funds will be required with respect to
principal of, premium, if any, and interest on all Global Notes and all other
Notes the Holders of which shall have provided wire transfer instructions to the
Company or the Paying Agent at least ten Business Days prior to the applicable
payment date. Such payment shall be in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
AGENT AND REGISTRAR. Initially, Xxxxx Fargo Bank, N.A., the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company may
change any Paying Agent or Registrar without notice to any Holder. The Company
or any of its Subsidiaries may act in any such capacity.
INDENTURE. The Company issued the Notes under an Indenture dated as
of__________, 2004 ("Indenture") between the Company, the Guarantors listed on
the signature
A-2
page therein (the "Guarantors") and the Trustee. The terms of the Notes include
those stated in the Indenture and those made part of the Indenture by reference
to the Trust Indenture Act of 1939, as amended (15 U.S. Code Sections
77aaa-77bbbb). The Notes are subject to all such terms, and Holders are referred
to the Indenture and such Act for a statement of such terms. To the extent any
provision of this Note conflicts with the express provisions of the Indenture,
the provisions of the Indenture shall govern and be controlling. The Notes are
obligations of the Company limited to $200.0 million in aggregate principal
amount.
OPTIONAL REDEMPTION.
The Company shall not have the option to redeem the Notes pursuant to
this Section 3.07 prior to ____________, 2005. On or after [Date of Month],
2005, the Company shall have the option to redeem the Notes, in whole or in
part, at the redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued and unpaid interest thereon to the applicable
redemption date, if redeemed during the 12-month period beginning on [Date of
Month plus 1 day], 200__ of the years indicated below;
Year Percentage
---- ----------
2005 105.50%
2006 104.50%
2007 101.00%
2008 and thereafter 100.00%
Any such optional redemption shall be made pursuant to the provisions
of Sections 3.01 through 3.06 of the Indenture.
MANDATORY REDEMPTION.
Neither the Company nor the Guarantors shall be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of Notes may be registered and Notes may be exchanged as provided in
the Indenture. The Registrar and the Trustee may require a Holder, among other
things, to furnish appropriate
A-3
endorsements and transfer documents and the Company may require a Holder to pay
any taxes and fees required by law or permitted by the Indenture. The Company
need not exchange or register the transfer of any Note or portion of a Note
selected for redemption, except for the unredeemed portion of any Note being
redeemed in part. Also, the Company need not exchange or register the transfer
of any Notes for a period of 15 days before a selection of Notes to be redeemed
or during the period between a record date and the succeeding Interest Payment
Date.
PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.
AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture, the Note Guarantees or the Notes may be amended or supplemented with
the consent of the Holders of at least a majority in principal amount of the
then outstanding Notes and Additional Notes, if any, voting as a single class,
and any existing default or compliance with any provision of the Indenture, the
Note Guarantees or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes and Additional Notes,
if any, voting as a single class. Without the consent of any Holder of a Note,
the Indenture, the Note Guarantees or the Notes may be amended or supplemented
to cure any ambiguity, defect or inconsistency; to provide for uncertificated
Notes in addition to or in place of certificated Notes or to alter the
provisions of Article II of the Indenture (including the related definitions) in
a manner that does not materially adversely affect any Holder; to release any
Guarantor from any of its obligations under its Note Guarantee or the Indenture
(to the extent permitted by the Indenture); to make any change that would that
does not materially adversely affect the legal rights hereunder of any Holder of
the Notes; or to comply with requirements of the SEC in order to effect or
maintain the qualification of this Agreement under the Trust Indenture Act.
DEFAULTS AND REMEDIES. Events of Default include: (i) default for 5
days in the payment when due of interest or additional interest, if any, on the
Notes; (ii) default in payment when due of principal of the Notes when the same
becomes due and payable at maturity, upon redemption, upon purchase, upon
acceleration or otherwise; (iii) failure by the relevant Note Party to comply
with any of its agreements or covenants described under Sections 4.08, 4.12,
4.16, 4.17 or Article V of the Indenture; (iv) by the relevant Note Party to
comply with any of its agreements or covenants in Sections 4.04, 4.06, 4.07,
4.09, 4.10, 4.11, 4.13 and 4.15 of the Indenture and such failure continues for
a period of 20 Business Days; (v) failure by a Note Party to comply with any
covenants or agreements contained in the Indenture or in any of the other Note
Documents (giving effect to any grace periods, cure periods, or required
notices, if any, expressly provided for in such Note Documents); in each case,
other than any such covenant or agreement that is the subject to another Event
of Default, and such failure continues for a period of 20 Business Days; (vi) if
any material portion of any Note Party's assets is attached, seized, subjected
to a writ or distress warrant, levied upon, or comes into the possession of any
third Person; (vii) if any Note Party is enjoined, restrained, or in any way
prevented by court order from continuing to conduct all or any material part of
its business affairs; (viii) if a notice of Lien, levy, or assessment,
individually or in the aggregate in an amount of $500,000 or greater, is filed
of record with respect to any Note Party's assets by the United States or
Canada, or any department, agency, or instrumentality thereof, or by any state,
province, territory, county, municipal, or governmental agency, or if any taxes
or debts owing at any time hereafter to any
A-4
one or more of such entities becomes a Lien, whether xxxxxx or otherwise, upon
any Borrower's or any of its Subsidiaries' assets and the same is not paid on
the payment date thereof; (ix) if a judgment or other claim becomes a Lien or
encumbrance upon any material portion of any Note Party's properties or assets;
(x) if there is a default in any material agreement to which any Guarantor is a
party including, without limitation, any Material Contract, Affiliate Contract
or any material contract with any of SAC Holding, SSI, PMSR or PM Preferred
(other than the New AMERCO Notes) or any other Indebtedness in excess of
$1,000,000, and such default (a) occurs at the final maturity of the obligations
thereunder, or (b) results in the acceleration of the maturity of the applicable
Guarantor's obligations thereunder; (xi) except as otherwise set forth in the
Reorganization Plan or as otherwise permitted by this Agreement, if any Note
Party makes any payment on account of Indebtedness that has been contractually
subordinated in right of payment to the payment of the Obligations; (xii) if the
obligation of any Guarantor under the Guaranty Agreement or its Note Guarantee
is limited or terminated by operation of law or by such Guarantor thereunder;
(xiii) if the Indenture or any other Note Document that purports to create a
Lien, shall, for any reason, fail or cease to create a valid and perfected,
except to the extent permitted by the terms hereof or thereof, Lien on or
security interest (each, second in priority only to the first priority security
interests granted to Bank Lenders' Agent pursuant to the New Credit Agreement)
in the Collateral covered hereby or thereby; (xiv) if any provision of any Note
Document shall at any time for any reason be declared to be null and void, or
the validity or enforceability thereof shall be contested by any Note Party, or
a proceeding shall be commenced by any Note Party, or by any Governmental
Authority having jurisdiction over any Note Party, seeking to establish the
invalidity or unenforceability thereof, or any Note Party shall deny that any
Note Party has any liability or obligation purported to be created under any
Note Document; (xv) if suit or action is commenced against the Trustee and/or
any Note Holder and, as to any suit or action brought by any Person other than
the Note Parties or an officer or employee of the Note Parties, is continued
without dismissal for 30 days after service thereof on the Trustee, that
asserts, by or on behalf of the Note Parties, any claim or legal or equitable
remedy which seeks subordination of the claim or Lien of the Trustee and/or any
Note Holder hereunder or under any other Note Document; (xvi) if any Note Party
shall file any application in support of, or shall otherwise fail to contest in
good faith, a suit or action of the type set forth in clause (xvi) above of this
Section 6.01 filed by any Person other than a Borrower or an officer or employee
of Borrowers; (xvii) if an Insolvency Proceeding is commenced by or against any
Note Party, or any of its Subsidiaries (other than INW), and any of the
following events occur: (a) the applicable Note Party or the Subsidiary consents
to the institution of the Insolvency Proceeding against it, (b) the petition
commencing the Insolvency Proceeding is not timely controverted, (c) the
petition commencing the Insolvency Proceeding is not dismissed within 45
calendar days of the date of the filing thereof, (d) an interim trustee is
appointed to take possession of all or any substantial portion of the properties
or assets of, or to operate all or any substantial portion of the business of,
any Note Party or any of its Subsidiaries, or (e) an order for relief shall have
been entered therein; (xviii) if any event of default occurs under any New
AMERCO Note Document, or if any holder of New AMERCO Notes contests that the
Obligations hereunder constitute "Senior Indebtedness" under the New AMERCO Note
Indenture; (xix) failure by the Note Parties to register at least ninety percent
(90%) of the Certificates of Title pursuant to Section 11.01(c) of the Indenture
within 180 days after the Issue Date; or (xx) if any material misstatement or
material misrepresentation exists now or hereafter in any warranty,
representation, statement, or Record made to the Holders by any Borrower, its
Subsidiaries, or
A-5
any officer, employee, agent, or director of any Borrower or any of its
Subsidiaries. If any Event of Default occurs and is continuing, the Trustee or
the Holders of at least 25% in principal amount of the then outstanding Notes
may declare all the Notes to be due and payable. Notwithstanding the foregoing,
in the case of an Event of Default arising from certain events of bankruptcy or
insolvency, all outstanding Notes will become due and payable without further
action or notice. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Notes may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders of the
Notes notice of any continuing Default (except a Default relating to the payment
of principal or interest) if it determines that withholding notice is in their
interest. The Holders of a majority in aggregate principal amount of the Notes
then outstanding by notice to the Trustee may on behalf of the Holders of all of
the Notes waive any existing Default and its consequences under the Indenture
except a continuing Default in the payment of interest on, premium and
Additional Interest, if any, or the principal of, the Notes. The Company is
required to deliver to the Trustee annually a statement regarding compliance
with the Indenture, and the Company is required upon becoming aware of any
Default, to deliver to the Trustee a statement specifying such Default.
TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
NO RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator
or stockholder of the Company or any Guarantor, as such, shall not have any
liability for any obligations of the Company or any Guarantor under the Notes,
the Note Guarantees or the Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes and the Guarantees.
AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (=-Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
A-6
AMERCO
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxx, Xxxxxx 00000-0000
Attention: Assistant Treasurer
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to: __________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: ______________________
Your Signature:___________________________
(Sign exactly as your name appears on the
face of this Note)
Signature Guarantee*: ________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
A-7
SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Amount
Amount of Amount of [at maturity] of Signature of
decrease in increase in this Global Note authorized
Principal Amount Principal Amount following such officer of the
[at maturity] of [at maturity] of decrease (or Trustee or Note
Date of Exchange this Global Note this Global Note increase) Custodian
---------------- ---------------- ---------------- ---------------- ---------------
* This schedule should be included only if the Note is issued in global form.
A-8
EXHIBIT B
[Insert the Global Note Legend, if applicable pursuant to the provisions of the
Indenture] [Insert the Private Placement Legend]
[FACE OF NOTE]
================================================================================
CUSIP No. [ ]
ISIN No. [ ]
9.0% Second Lien Senior Secured Notes due 2009
No. ___ $____________
AMERCO
promises to pay to______________________________________________________________
or registered assigns,
the principal sum of____________________________________________________________
Dollars on________________, 2009.
Interest Payment Dates: ___________, ____________, ___________, and ____________
Record Dates: ___________, ____________, ___________, and ____________
AMERCO
By: ____________________________________
Name:
Title:
This is one of the Notes referred to in the within-mentioned Indenture:
Dated: _______________, ____
XXXXX FARGO BANK, N.A., as Trustee
By: __________________________________
Authorized Signatory [BACK OF NOTE]
================================================================================
B-1
[BACK OF NOTE]
9.0% SECOND LIEN SENIOR SECURED NOTES DUE 2009
Capitalized terms used herein shall have the meanings assigned to them
in the Indenture referred to below unless otherwise indicated.
INTEREST. AMERCO, a Nevada corporation (the "Company"), promises to pay
interest on the principal amount of this Note at 9.0% per annum from__________,
2004 until maturity and shall pay the Additional Interest payable pursuant to
Section 4 of the Registration Rights Agreement referred to below. The Company
will pay interest and Additional Interest quarterly in arrears on ___________and
_______________, ___________and _______________of each year, or if any such day
is not a Business Day, on the next succeeding Business Day (each, an "Interest
Payment Date"). Interest on the Notes will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from the date of
issuance; provided that if there is no existing Default in the payment of
interest, and if this Note is authenticated between a record date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such next succeeding Interest Payment Date; provided, further, that
the first Interest Payment Date shall be__________, 2004. The Company shall pay
interest on overdue principal and premium, if any, from time to time on demand
at a rate that is 2.0% per annum in excess of the rate then in effect; it shall
pay interest (including post-petition interest in any proceeding under any
Bankruptcy Law) on overdue installments of interest and Additional Interest
(without regard to any applicable grace periods) from time to time on demand at
the same rate to the extent lawful. Interest will be computed on the basis of a
360-day year of four 90-day quarters.
METHOD OF PAYMENT. The Company will pay interest on the Notes (except
defaulted interest) to the Persons who are registered Holders of Notes at the
close of business on the ______________, _______________ , ___________ or
_______________ next preceding the Interest Payment Date, even if such Notes are
canceled after such record date and on or before such Interest Payment Date,
except as provided in Section 2.12 of the Indenture with respect to defaulted
interest. The Notes will be payable as to principal, premium, if any, and
interest at the office or agency of the Company maintained for such purpose
within or without the City and State of New York, or, at the option of the
Company, payment of interest may be made by check mailed to the Holders at their
addresses set forth in the register of Holders, and provided that payment by
wire transfer of immediately available funds will be required with respect to
principal of, premium, if any, and interest on all Global Notes and all other
Notes the Holders of which shall have provided wire transfer instructions to the
Company or the Paying Agent at least ten Business Days prior to the applicable
payment date. Such payment shall be in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts.
AGENT AND REGISTRAR. Initially, Xxxxx Fargo Bank, N.A., the Trustee
under the Indenture, will act as Paying Agent and Registrar. The Company may
change any Paying Agent or Registrar without notice to any Holder. The Company
or any of its Subsidiaries may act in any such capacity.
B-2
INDENTURE. The Company issued the Notes under an Indenture dated as
of__________, 2004 ("Indenture") between the Company, the Guarantors listed on
the signature page therein (the "Guarantors") and the Trustee. The terms of the
Notes include those stated in the Indenture and those made part of the Indenture
by reference to the Trust Indenture Act of 1939, as amended (15 U.S. Code
Sections 77aaa-77bbbb). The Notes are subject to all such terms, and Holders are
referred to the Indenture and such Act for a statement of such terms. To the
extent any provision of this Note conflicts with the express provisions of the
Indenture, the provisions of the Indenture shall govern and be controlling. The
Notes are obligations of the Company limited to $200.0 million in aggregate
principal amount.
OPTIONAL REDEMPTION.
The Company shall not have the option to redeem the Notes pursuant to
this Section 3.07 prior to ____________, 2005. On or after [Date of Month],
2005, the Company shall have the option to redeem the Notes, in whole or in
part, at the redemption prices (expressed as percentages of principal amount)
set forth below, plus accrued and unpaid interest thereon to the applicable
redemption date, if redeemed during the 12-month period beginning on [Date of
Month plus 1 day], 200__ of the years indicated below;
Year Percentage
---- ----------
2005 105.50%
2006 104.50%
2007 101.00%
2008 and thereafter 100.00%
Any such optional redemption shall be made pursuant to the provisions
of Sections 3.01 through 3.06 of the Indenture.
MANDATORY REDEMPTION.
Neither the Company nor the Guarantors shall be required to make
mandatory redemption or sinking fund payments with respect to the Notes.
NOTICE OF REDEMPTION. Notice of redemption will be mailed at least 30
days but not more than 60 days before the redemption date to each Holder whose
Notes are to be redeemed at its registered address. Notes in denominations
larger than $1,000 may be redeemed in part but only in whole multiples of
$1,000, unless all of the Notes held by a Holder are to be redeemed. On and
after the redemption date interest ceases to accrue on Notes or portions thereof
called for redemption.
DENOMINATIONS, TRANSFER, EXCHANGE. The Notes are in registered form
without coupons in denominations of $1,000 and integral multiples of $1,000. The
transfer of
B-3
Notes may be registered and Notes may be exchanged as provided in the Indenture.
The Registrar and the Trustee may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and fees required by law or permitted by the
Indenture. The Company need not exchange or register the transfer of any Note or
portion of a Note selected for redemption, except for the unredeemed portion of
any Note being redeemed in part. Also, the Company need not exchange or register
the transfer of any Notes for a period of 15 days before a selection of Notes to
be redeemed or during the period between a record date and the succeeding
Interest Payment Date.
PERSONS DEEMED OWNERS. The registered Holder of a Note may be treated
as its owner for all purposes.
AMENDMENT, SUPPLEMENT AND WAIVER. Subject to certain exceptions, the
Indenture, the Note Guarantees or the Notes may be amended or supplemented with
the consent of the Holders of at least a majority in principal amount of the
then outstanding Notes and Additional Notes, if any, voting as a single class,
and any existing default or compliance with any provision of the Indenture, the
Note Guarantees or the Notes may be waived with the consent of the Holders of a
majority in principal amount of the then outstanding Notes and Additional Notes,
if any, voting as a single class. Without the consent of any Holder of a Note,
the Indenture, the Note Guarantees or the Notes may be amended or supplemented
to cure any ambiguity, defect or inconsistency; to provide for uncertificated
Notes in addition to or in place of certificated Notes or to alter the
provisions of Article II of the Indenture (including the related definitions) in
a manner that does not materially adversely affect any Holder; to release any
Guarantor from any of its obligations under its Note Guarantee or the Indenture
(to the extent permitted by the Indenture); to make any change that would that
does not materially adversely affect the legal rights hereunder of any Holder of
the Notes; or to comply with requirements of the SEC in order to effect or
maintain the qualification of this Agreement under the Trust Indenture Act.
DEFAULTS AND REMEDIES. Events of Default include: (i) default for 5
days in the payment when due of interest or additional interest, if any, on the
Notes; (ii) default in payment when due of principal of the Notes when the same
becomes due and payable at maturity, upon redemption, upon purchase, upon
acceleration or otherwise; (iii) failure by the relevant Note Party to comply
with any of its agreements or covenants described under Sections 4.08, 4.12,
4.16, 4.17 or Article V of the Indenture; (iv) by the relevant Note Party to
comply with any of its agreements or covenants in Sections 4.04, 4.06, 4.07,
4.09, 4.10, 4.11, 4.13 and 4.15 of the Indenture and such failure continues for
a period of 20 Business Days; (v) failure by a Note Party to comply with any
covenants or agreements contained in the Indenture or in any of the other Note
Documents (giving effect to any grace periods, cure periods, or required
notices, if any, expressly provided for in such Note Documents); in each case,
other than any such covenant or agreement that is the subject to another Event
of Default, and such failure continues for a period of 20 Business Days; (vi) if
any material portion of any Note Party's assets is attached, seized, subjected
to a writ or distress warrant, levied upon, or comes into the possession of any
third Person; (vii) if any Note Party is enjoined, restrained, or in any way
prevented by court order from continuing to conduct all or any material part of
its business affairs; (viii) if a notice of Lien, levy, or assessment,
individually or in the aggregate in an amount of $500,000 or greater, is filed
of record with respect to any Note Party's assets by the United States or
Canada, or any
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department, agency, or instrumentality thereof, or by any state, province,
territory, county, municipal, or governmental agency, or if any taxes or debts
owing at any time hereafter to any one or more of such entities becomes a Lien,
whether xxxxxx or otherwise, upon any Borrower's or any of its Subsidiaries'
assets and the same is not paid on the payment date thereof; (ix) if a judgment
or other claim becomes a Lien or encumbrance upon any material portion of any
Note Party's properties or assets; (x) if there is a default in any material
agreement to which any Guarantor is a party including, without limitation, any
Material Contract, Affiliate Contract or any material contract with any of SAC
Holding, SSI, PMSR or PM Preferred (other than the New AMERCO Notes) or any
other Indebtedness in excess of $1,000,000, and such default (a) occurs at the
final maturity of the obligations thereunder, or (b) results in the acceleration
of the maturity of the applicable Guarantor's obligations thereunder; (xi)
except as otherwise set forth in the Reorganization Plan or as otherwise
permitted by this Agreement, if any Note Party makes any payment on account of
Indebtedness that has been contractually subordinated in right of payment to the
payment of the Obligations; (xii) if the obligation of any Guarantor under the
Guaranty Agreement or its Note Guarantee is limited or terminated by operation
of law or by such Guarantor thereunder; (xiii) if the Indenture or any other
Note Document that purports to create a Lien, shall, for any reason, fail or
cease to create a valid and perfected, except to the extent permitted by the
terms hereof or thereof, Lien on or security interest (each, second in priority
only to the first priority security interests granted to Bank Lenders' Agent
pursuant to the New Credit Agreement) in the Collateral covered hereby or
thereby; (xiv) if any provision of any Note Document shall at any time for any
reason be declared to be null and void, or the validity or enforceability
thereof shall be contested by any Note Party, or a proceeding shall be commenced
by any Note Party, or by any Governmental Authority having jurisdiction over any
Note Party, seeking to establish the invalidity or unenforceability thereof, or
any Note Party shall deny that any Note Party has any liability or obligation
purported to be created under any Note Document; (xv) if suit or action is
commenced against the Trustee and/or any Note Holder and, as to any suit or
action brought by any Person other than the Note Parties or an officer or
employee of the Note Parties, is continued without dismissal for 30 days after
service thereof on the Trustee, that asserts, by or on behalf of the Note
Parties, any claim or legal or equitable remedy which seeks subordination of the
claim or Lien of the Trustee and/or any Note Holder hereunder or under any other
Note Document; (xvi) if any Note Party shall file any application in support of,
or shall otherwise fail to contest in good faith, a suit or action of the type
set forth in clause (xvi) above of this Section 6.01 filed by any Person other
than a Borrower or an officer or employee of Borrowers; (xvii) if an Insolvency
Proceeding is commenced by or against any Note Party, or any of its Subsidiaries
(other than INW), and any of the following events occur: (a) the applicable Note
Party or the Subsidiary consents to the institution of the Insolvency Proceeding
against it, (b) the petition commencing the Insolvency Proceeding is not timely
controverted, (c) the petition commencing the Insolvency Proceeding is not
dismissed within 45 calendar days of the date of the filing thereof, (d) an
interim trustee is appointed to take possession of all or any substantial
portion of the properties or assets of, or to operate all or any substantial
portion of the business of, any Note Party or any of its Subsidiaries, or (e) an
order for relief shall have been entered therein; (xviii) if any event of
default occurs under any New AMERCO Note Document, or if any holder of New
AMERCO Notes contests that the Obligations hereunder constitute "Senior
Indebtedness" under the New AMERCO Note Indenture; (xix) failure by the Note
Parties to register at least ninety percent (90%) of the Certificates of Title
pursuant to Section 11.01(c) of the Indenture within 180 days after the Issue
Date; or (xx) if any material
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misstatement or material misrepresentation exists now or hereafter in any
warranty, representation, statement, or Record made to the Holders by any
Borrower, its Subsidiaries, or any officer, employee, agent, or director of any
Borrower or any of its Subsidiaries. If any Event of Default occurs and is
continuing, the Trustee or the Holders of at least 25% in principal amount of
the then outstanding Notes may declare all the Notes to be due and payable.
Notwithstanding the foregoing, in the case of an Event of Default arising from
certain events of bankruptcy or insolvency, all outstanding Notes will become
due and payable without further action or notice. Holders may not enforce the
Indenture or the Notes except as provided in the Indenture. Subject to certain
limitations, Holders of a majority in principal amount of the then outstanding
Notes may direct the Trustee in its exercise of any trust or power. The Trustee
may withhold from Holders of the Notes notice of any continuing Default (except
a Default relating to the payment of principal or interest) if it determines
that withholding notice is in their interest. The Holders of a majority in
aggregate principal amount of the Notes then outstanding by notice to the
Trustee may on behalf of the Holders of all of the Notes waive any existing
Default and its consequences under the Indenture except a continuing Default in
the payment of interest on, premium and Additional Interest, if any, or the
principal of, the Notes. The Company is required to deliver to the Trustee
annually a statement regarding compliance with the Indenture, and the Company is
required upon becoming aware of any Default, to deliver to the Trustee a
statement specifying such Default.
TRUSTEE DEALINGS WITH COMPANY. The Trustee, in its individual or any
other capacity, may make loans to, accept deposits from, and perform services
for the Company or its Affiliates, and may otherwise deal with the Company or
its Affiliates, as if it were not the Trustee.
NO RECOURSE AGAINST OTHERS. A director, officer, employee, incorporator
or stockholder of the Company or any Guarantor, as such, shall not have any
liability for any obligations of the Company or any Guarantor under the Notes,
the Note Guarantees or the Indenture or for any claim based on, in respect of,
or by reason of, such obligations or their creation. Each Holder by accepting a
Note waives and releases all such liability. The waiver and release are part of
the consideration for the issuance of the Notes and the Guarantees.
AUTHENTICATION. This Note shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
ADDITIONAL RIGHTS OF HOLDERS OF CLASS B GLOBAL NOTES AND CLASS B
DEFINITIVE NOTES. In addition to the rights provided to Holders of Notes under
the Indenture, Holders of Restricted Global Notes and Restricted Definitive
Notes shall have all the rights set forth in the Registration Rights Agreement
dated as of March __, 2004 between the Company and the parties named on the
signature pages thereof (the "Registration Rights Agreement").
ABBREVIATIONS. Customary abbreviations may be used in the name of a
Holder or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of survivorship
and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts
to Minors Act).
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CUSIP Numbers. Pursuant to a recommendation promulgated by the
Committee on Uniform Security Identification Procedures, the Company has caused
CUSIP numbers to be printed on the Notes and the Trustee may use CUSIP numbers
in notices of redemption as a convenience to Holders. No representation is made
as to the accuracy of such numbers either as printed on the Notes or as
contained in any notice of redemption and reliance may be placed only on the
other identification numbers placed thereon.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
AMERCO
0000 Xxxxxxxxx Xxx, Xxxxx 000
Xxxx, Xxxxxx 00000-0000
Attention: Assistant Treasurer
ASSIGNMENT FORM
To assign this Note, fill in the form below:
(I) or (we) assign and transfer this Note to:___________________________________
(Insert assignee's legal name)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. no.)
________________________________________________________________________________
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
and irrevocably appoint_________________________________________________________
to transfer this Note on the books of the Company. The agent may substitute
another to act for him.
Date: ______________________
Your Signature:_________________________
(Sign exactly as your name appears on
the face of this Note)
Signature Guarantee*: ________________________
* Participant in a recognized Signature Guarantee Medallion Program (or other
signature guarantor acceptable to the Trustee).
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SCHEDULE OF EXCHANGES OF INTERESTS IN THE GLOBAL NOTE*
The following exchanges of a part of this Global Note for an interest
in another Global Note or for a Definitive Note, or exchanges of a part of
another Global Note or Definitive Note for an interest in this Global Note, have
been made:
Principal Amount
Amount of Amount of [at maturity] of Signature of
decrease in increase in this Global Note authorized
Principal Amount Principal Amount following such officer of the
[at maturity] of [at maturity] of decrease (or Trustee or Note
Date of Exchange this Global Note this Global Note increase) Custodian
---------------- ---------------- ---------------- ---------------- ---------------
* This schedule should be included only if the Note is issued in global form.
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EXHIBIT C
FORM OF NOTATION OF GUARANTEE
For value received, each Guarantor (which term includes any successor
Person under the Indenture) has, jointly and severally, fully and
unconditionally guaranteed, to the extent set forth in the Indenture (defined
below) and subject to the provisions in the Indenture dated as of March __, 2004
(the "Indenture") among AMERCO, the Guarantors listed on the signature pages
thereto and Xxxxx Fargo Bank, N.A., as trustee (the "Trustee"), (a) the due and
punctual payment of the principal of and interest on the Notes (as defined in
the Indenture), whether at maturity, by acceleration, redemption or otherwise,
the due and punctual payment of interest on overdue principal and, to the extent
permitted by law, interest, and the due and punctual performance of all other
obligations of the Company to the Holders or the Trustee all in accordance with
the terms of the Indenture and (b) in case of any extension of time of payment
or renewal of any Notes or any of such other obligations, that the same will be
promptly paid in full when due or performed in accordance with the terms of the
extension or renewal, whether at stated maturity, by acceleration or otherwise.
The obligations of the Guarantors to the Holders of Notes and to the Trustee
pursuant to the Note Guarantee and the Indenture are expressly set forth in
Article X of the Indenture and reference is hereby made to the Indenture for the
precise terms of the Note Guarantee. Each Holder of a Note, by accepting the
same, (a) agrees to and shall be bound by such provisions, (b) authorizes and
directs the Trustee, on behalf of such Holder, to take such action as may be
necessary or appropriate to effectuate the subordination as provided in the
Indenture and (c) appoints the Trustee attorney-in-fact of such Holder for such
purpose; provided, however, that the Indebtedness evidenced by this Note
Guarantee shall cease to be so subordinated and subject in right of payment upon
any defeasance of this Note in accordance with the provisions of the Indenture.
[Guarantors' Signature Blocks to be Provided]
C-1
EXHIBIT D
FORM OF SUPPLEMENTAL INDENTURE
TO BE DELIVERED BY SUBSEQUENT GUARANTORS
Supplemental Indenture (this "Supplemental Indenture"), dated as of
________________, among __________________ (the "Guaranteeing Subsidiary"), a
subsidiary of AMERCO (or its permitted successor), a Nevada corporation (the
"Company"), the Company, the other Guarantors (as defined in the Indenture
referred to herein) and Xxxxx Fargo Bank, N.A., as trustee under the indenture
referred to below (the "Trustee").
W I T N E S S E T H:
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an indenture (the "Indenture"), dated as of March __, 2004 providing for
the issuance of an aggregate principal amount of up to $200,000,000 of 9.0%
Second Lien Senior Secured Notes due 2009 (the "Notes");
WHEREAS, the Indenture provides that under certain circumstances the
Guaranteeing Subsidiary shall execute and deliver to the Trustee a supplemental
indenture pursuant to which the Guaranteeing Subsidiary shall unconditionally
guarantee all of the Company's Obligations under the Notes and the Indenture on
the terms and conditions set forth herein (the "Note Guarantee"); and
WHEREAS, pursuant to the terms of the Indenture, the Trustee is
authorized to execute and deliver this Supplemental Indenture.
NOW THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt of which is hereby acknowledged, the
Guaranteeing Subsidiary and the Trustee mutually covenant and agree for the
equal and ratable benefit of the Holders of the Notes as follows:
CAPITALIZED TERMS. Capitalized terms used herein without definition
shall have the meanings assigned to them in the Indenture.
AGREEMENT TO GUARANTEE. The Guaranteeing Subsidiary hereby agrees as
follows:
(a) Along with all Guarantors named in the Indenture, to jointly
and severally Guarantee to each Holder of a Note authenticated and delivered by
the Trustee and to the Trustee and its successors and assigns, the Notes or the
obligations of the Company hereunder or thereunder, that:
(i) the principal of and interest on the Notes will be
promptly paid in full when due, whether at maturity, by acceleration,
redemption or otherwise, and interest on the overdue principal of and
interest on the Notes, if any, if lawful, and all other
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obligations of the Company to the Holders or the Trustee hereunder or
thereunder will be promptly paid in full or performed, all in
accordance with the terms hereof and thereof; and
(ii) in case of any extension of time of payment or
renewal of any Notes or any of such other obligations, that same will
be promptly paid in full when due or performed in accordance with the
terms of the extension or renewal, whether at stated maturity, by
acceleration or otherwise. Failing payment when due of any amount so
guaranteed or any performance so guaranteed for whatever reason, the
Guarantors shall be jointly and severally obligated to pay the same
immediately.
(b) The obligations hereunder shall be full and unconditional,
irrespective of the validity or enforceability of the Notes or the Indenture,
the absence of any action to enforce the same, any waiver or consent by any
Holder of the Notes with respect to any provisions hereof or thereof, the
recovery of any judgment against the Company, any action to enforce the same or
any other circumstance which might otherwise constitute a legal or equitable
discharge or defense of a guarantor.
(c) The following is hereby waived: diligence, presentment, demand
of payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against the
Company, protest, notice and all demands whatsoever.
(d) This Note Guarantee shall not be discharged except by complete
performance of the obligations contained in the Notes and the Indenture, and the
Guaranteeing Subsidiary accepts all obligations of a Guarantor under the
Indenture.
(e) If any Holder or the Trustee is required by any court or
otherwise to return to the Company, the Guarantors, or any Custodian, the
Trustee, liquidator or other similar official acting in relation to either the
Company or the Guarantors, any amount paid by either to the Trustee or such
Holder, this Note Guarantee, to the extent theretofore discharged, shall be
reinstated in full force and effect.
(f) The Guaranteeing Subsidiary shall not be entitled to any right
of subrogation in relation to the Holders in respect of any obligations
guaranteed hereby until payment in full of all obligations guaranteed hereby.
(g) As between the Guarantors, on the one hand, and the Holders
and the Trustee, on the other hand, (x) the maturity of the obligations
guaranteed hereby may be accelerated as provided in Article VI of the Indenture
for the purposes of this Note Guarantee, notwithstanding any stay, injunction or
other prohibition preventing such acceleration in respect of the obligations
guaranteed hereby, and (y) in the event of any declaration of acceleration of
such obligations as provided in Article VI of the Indenture, such obligations
(whether or not due and payable) shall forthwith become due and payable by the
Guarantors for the purpose of this Note Guarantee.
(h) The Guarantors shall have the right to seek contribution from
any non-paying Guarantor so long as the exercise of such right does not impair
the rights of the Holders under the Guarantee.
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(i) Pursuant to Section 10.02 of the Indenture, after giving
effect to any maximum amount and any other contingent and fixed liabilities that
are relevant under any applicable Bankruptcy or fraudulent conveyance laws, and
after giving effect to any collections from, rights to receive contribution from
or payments made by or on behalf of any other Guarantor in respect of the
obligations of such other Guarantor under Article X of the Indenture, this new
Note Guarantee shall be limited to the maximum amount permissible such that the
obligations of such Guarantor under this Note Guarantee will not constitute a
fraudulent transfer or conveyance.
EXECUTION AND DELIVERY. Each Guaranteeing Subsidiary agrees that the
Note Guarantees shall remain in full force and effect notwithstanding any
failure to endorse on each Note a notation of such Note Guarantee.
GUARANTEEING SUBSIDIARY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
(j) The Guaranteeing Subsidiary may not consolidate with or merge
with or into (whether or not such Guarantor is the surviving Person) another
corporation, Person or entity whether or not affiliated with such Guarantor
unless:
(i) subject to Sections 10.04 and 10.05 of the Indenture,
the Person formed by or surviving any such consolidation or merger (if
other than a Guarantor or the Company) unconditionally assumes all the
obligations of such Guarantor, pursuant to a supplemental indenture in
form of Exhibit D to the Indenture, under the Notes, the Indenture and
the Note Guarantee on the terms set forth herein or therein; and
(ii) immediately after giving effect to such transaction,
no Default or Event of Default exists.
(k) In case of any such consolidation, merger, sale or conveyance
and upon the assumption by the successor Person, by supplemental indenture,
executed and delivered to the Trustee, of the Note Guarantee endorsed upon the
Notes and the due and punctual performance of all of the covenants and
conditions of the Indenture to be performed by the Guarantor, such successor
Person shall succeed to and be substituted for the Guarantor with the same
effect as if it had been named herein as a Guarantor. Such successor Person
thereupon may cause to be signed any or all of the Note Guarantees to be
endorsed upon all of the Notes issuable hereunder which theretofore shall not
have been signed by the Company and delivered to the Trustee. All the Note
Guarantees so issued shall in all respects have the same legal rank and benefit
under the Indenture as the Note Guarantees theretofore and thereafter issued in
accordance with the terms of the Indenture as though all of such Note Guarantees
had been issued at the date of the execution hereof.
(l) Except as set forth in Articles IV and V and Section 10.04 of
Article X of the Indenture, and notwithstanding clauses (a) and (b) above,
nothing contained in the Indenture or in any of the Notes shall prevent any
consolidation or merger of a Guarantor with or into the Company or another
Guarantor, or shall prevent any sale or conveyance of the property of a
Guarantor as an entirety or substantially as an entirety to the Company or
another Guarantor.
RELEASES.
D-3
(m) In the event of a sale or other disposition of all of the
assets of any Guarantor, by way of merger, consolidation or otherwise, or a sale
or other disposition of all of the equity interests of any Guarantor then held
by the Company or any Guarantor is released from its Guarantees of Indebtedness
of the Company such that such Guarantor would not be required to provide a
Guarantee of the Notes under the terms of the Indenture, then such Guarantor (in
the event of a sale or other disposition, by way of merger, consolidation or
otherwise, of all of the equity interests of such Guarantor) or the corporation
acquiring the property (in the event of a sale or other disposition of all or
substantially all of the assets of such Guarantor) will be released and relieved
of any obligations under its Note Guarantee. Upon delivery by the Company to the
Trustee of an Officers' Certificate and an opinion of counsel to the effect that
such sale or other disposition was made by the Company in accordance with the
provisions of the Indenture, the Trustee shall execute any documents reasonably
required in order to evidence the release of any Guarantor from its obligations
under its Note Guarantee.
(n) The Guaranteeing Subsidiary, if not released from its
obligations under the Note Guarantee, shall remain liable for the full amount of
principal of and interest on the Notes and for the other obligations of any
Guarantor under the Indenture as provided in Article X of the Indenture.
NO RECOURSE AGAINST OTHERS. No past, present or future director,
officer, employee, incorporator, stockholder or agent of the Guaranteeing
Subsidiary, as such, shall have any liability for any obligations of the Company
or any Guaranteeing Subsidiary under the Notes, any Note Guarantees, the
Indenture or this Supplemental Indenture or for any claim based on, in respect
of, or by reason of, such obligations or their creation. Each Holder of the
Notes by accepting a Note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the Notes and the
Guarantees. Such waiver may not be effective to waive liabilities under the
federal securities laws and it is the view of the Securities and Exchange
Commission that such a waiver is against public policy.
NEW YORK LAW TO GOVERN. THIS SUPPLEMENTAL INDENTURE WILL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
COUNTERPARTS. The parties may sign any number of copies of this
Supplemental Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement.
EFFECT OF HEADINGS. The Section headings herein are for convenience
only and shall not affect the construction hereof.
TRUSTEE. The Trustee shall not be responsible in any manner whatsoever
for or in respect of the validity or sufficiency of this Supplemental Indenture
or for or in respect of the recitals contained herein, all of which recitals are
made solely by the Guaranteeing Subsidiary and the Company.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed and attested, all as of the date first above
written.
D-4
Dated: _______________, ____
[GUARANTEEING SUBSIDIARY]
By: ____________________________________
Name:
Title:
[Guarantors' Signature Blocks to be Provided]
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