AMENDED AND RESTATED CREDIT AGREEMENT
EXECUTION COPY
AMENDED
AND RESTATED
CREDIT AGREEMENT
dated
as of
March
12, 2007
among
U-HAUL
LEASING
& SALES
CO., U-HAUL CO. OF ARIZONA,
and
U-HAUL
INTERNATIONAL,
INC.,
as
Borrowers
U-HAUL
INTERNATIONAL,
INC.,
as
Servicer/Manager and Guarantor
and
XXXXXXX
XXXXX COMMERCIAL FINANCE CORP.,
as
Lender
(Aged
Truck Revolving Loan Facility)
TABLE
OF CONTENTS
ARTICLE
I
Definitions
Page
Section
1.01. Defined
Terms ................................................................................................. 1
Section
1.02. Terms
Generally............................................................................................. 11
Section
1.03. Accounting
Terms;
GAAP.............................................................................11
ARTICLE
II
The
Loans
Section
2.01. Commitments ................................................................................................. 12
Section
2.02. The
Note......................................................................................................... 12
Section
2.03. Making
the Loans .......................................................................................... 12
Section
2.04. Repayment
of
Loans; Evidence of Debt ........................................................ 13
ARTICLE
III
SECURITY
Section
3.01. Security
Interest ............................................................................................. 13
Section
3.02. Release
of Collateral ...................................................................................... 14
ARTICLE
IV
SERVICING
AND MAINTENANCE
Section
4.01. Servicer/Manager ........................................................................................... 14
Section
4.02. Custody
of Vehicle Files................................................................................ 15
Section
4.03. Maintenance ................................................................................................... 17
ARTICLE V
FEES,
INTEREST,
ACCOUNTS,
PAYMENTS, ETC.
Section
5.01. Fees
and
Expenses ......................................................................................... 17
Section
5.02. Interest
on the Loans ...................................................................................... 17
Section
5.03. [Reserved.] ..................................................................................................... 18
Section
5.04. Payments
to
be Made ..................................................................................... 18
Section
5.05. Optional
Prepayments .................................................................................... 18
Section
5.06. [Reserved] ...................................................................................................... 19
Section
5.07. Illegality;
Substituted Interest
Rate, etc ......................................................... 19
Section
5.08. Payments
of
Principal and Interest; Mandatory Prepayments ....................... 19
Section
5.09. Increased
Costs .............................................................................................. 20
Section
5.10. Taxes .............................................................................................................. 21
-i-
TABLE
OF CONTENTS
(continued)
Page
ARTICLE VI
REPRESENTATIONS AND WARRANTIES
Section
6.01. Organization;
Powers..................................................................................... 22
Section
6.02. Authorization;
Enforceability ........................................................................ 22
Section
6.03. Governmental
Approvals; No Conflicts ........................................................ 22
Section
6.04. Financial
Condition;
No
Material Adverse Change....................................... 22
Section
6.05. Properties;
Liens and
Licenses....................................................................... 23
Section
6.06. Litigation
Matters........................................................................................... 23
Section
6.07. Compliance
with Laws and Agreements ....................................................... 23
Section
6.08. Investment
and
Holding Company
Status...................................................... 23
Section
6.09. Taxes .............................................................................................................. 24
Section
6.10. ERISA ............................................................................................................ 24
Section
6.11. Disclosure ...................................................................................................... 24
Section
6.12. The
Collateral................................................................................................. 24
Section
6.13. Liens
on
the Collateral ................................................................................... 25
Section
6.14. Eligible
Vehicle Collateral............................................................................. 25
Section
6.15. Insurance ........................................................................................................ 25
Section
6.16. Labor
Matters................................................................................................. 25
Section
6.17. Security
Documents ....................................................................................... 25
Section
6.18. Margin
Regulations........................................................................................ 25
ARTICLE VII
CONDITIONS
Section
7.01. Effective
Date ................................................................................................ 26
Section
7.02. Each
Loan ...................................................................................................... 26
ARTICLE VIII
AFFIRMATIVE
COVENANTS
Section
8.01. Financial
Statements
and
Other Information ................................................. 27
Section
8.02. Notices
of Material
Events............................................................................. 28
Section
8.03. Information
Regarding Collateral .................................................................. 29
Section
8.04. Existence;
Conduct
of
Business..................................................................... 29
Section
8.05. Payment
of
Obligations.................................................................................. 29
Section
8.06. Maintenance
of Properties ............................................................................. 29
Section
8.07. Insurance ........................................................................................................ 30
-ii-
TABLE
OF CONTENTS
(continued)
Page
Section
8.08. Books
and
Records; Inspection Rights .......................................................... 30
Section
8.09. Compliance
with Laws and Agreements ....................................................... 30
Section
8.10. Use
of
Proceeds.............................................................................................. 30
Section
8.11. Further
Assurances......................................................................................... 30
Section
8.12. Casualty.......................................................................................................... 31
Section
8.13. Interest
Rate Protection.................................................................................. 31
ARTICLE
IX
NEGATIVE COVENANTS
Section
9.01. Change
in
Control .......................................................................................... 31
Section
9.02. Use
of
Collateral ............................................................................................ 31
Section
9.03. Negative
Pledge ............................................................................................. 32
Section
9.04. Limitations
on Fundamental
Changes ........................................................... 32
ARTICLE X
EVENTS
OF
DEFAULT
Section
10.01. Events
of
Default ........................................................................................... 32
Section
10.02. Consequences
of an Event of Default ............................................................ 34
ARTICLE XI
RESERVED
Section
11.01. Reserved......................................................................................................... 34
ARTICLE XII
MISCELLANEOUS
Section
12.01. Notices ........................................................................................................... 34
Section
12.02. Waivers;
Amendments................................................................................... 35
Section
12.03. Expenses;
Indemnity;
Damage
Waiver.......................................................... 35
Section
12.04. Successors
and
Assigns.................................................................................. 36
Section
12.05. Survival .......................................................................................................... 38
Section
12.06. Counterparts;
Integration;
Effectiveness........................................................ 38
Section
12.07. Severability .................................................................................................... 38
Section
12.08. Right
of
Setoff................................................................................................ 38
Section
12.09. Governing
Law; Jurisdiction; Consent to Service of Process........................ 39
Section
12.10. WAIVER
OF
JURY TRIAL.......................................................................... 39
Section
12.11. Headings ........................................................................................................ 40
Section
12.12. Confidentiality ............................................................................................... 40
-iii-
TABLE
OF CONTENTS
(continued)
Page
Section
12.13. Joint
and
Several Liability
of Borrowers. ...................................................... 40
SCHEDULES:
Schedule
6.04 - Liabilities
Schedule
6.15 - Insurance
EXHIBITS:
Exhibit
A Form of
Assignment
and
Acceptance
Exhibit
B Form of
Guarantee Agreement
Exhibit
C Form of
Borrowing
Request
Exhibit
D Form of
Borrowing
Base Certificate
Exhibit
E Form of
Monthly Settlement
Report
Exhibit
F Form of
Note
Exhibit
G Market
Value
Exhibit
H [Reserved]
Exhibit I [Reserved]
Exhibit
J [Reserved]
Exhibit
K Wire
Instructions
ANNEXES
Annex
I Eligibility
Requirements
-iv-
AMENDED AND RESTATED CREDIT AGREEMENT, dated as of March 12,
2007, (the “Agreement”) among U-HAUL LEASING & SALES CO., a Nevada corporation, as a
Borrower,
U-HAUL
CO.
OF
ARIZONA,
an
Arizona
corporation,
as
a
Borrower,
U-HAUL
INTERNATIONAL,
INC.,
a
Nevada
corporation,
as
a
Borrower,
as
Servicer/Manager
and
as
Guarantor,
and XXXXXXX
XXXXX
COMMERCIAL
FINANCE CORP., as Lender.
Recitals
WHEREAS, the parties
hereto are party to a certain Credit Agreement, dated as of
June
28,
2005 (the “Original
Credit Agreement”); and
WHEREAS,
the
parties
to
the
Original
Credit
Agreement
desire
to
amend
and
restate
the Original
Credit
Agreement
to effect
certain amendments
thereto;
NOW,
THEREFORE, the parties hereto
agree
as
follows:
ARTICLE
I
Definitions
Section
1.01. Defined
Terms.
As
used
in
this
Agreement,
the
following
terms
have
the
meanings
specified below:
“Adjusted
LIBO
Rate” means, with respect to any Loan for any Interest Period,
an
interest
rate
per
annum
(rounded
upwards,
if
necessary,
to
the
next
1/100
of
1%)
equal
to
(a)
LIBOR
for such Interest
Period
multiplied
by
(b) the Statutory
Reserve Rate.
“Advance Rate” means 65%; provided, however, that if EBIDTA for UHI falls
below $300,000,000 for any fiscal year as reported on AMERCO’s annual report on Form 10-K,
then
the
“Advance Rate” will be 50%.
“Affiliate” means, with respect to a specified Person, another Person that directly,
or
indirectly
through
one
or
more
intermediaries,
Controls
or
is
Controlled
by
or
is
under
common
Control with the Person specified.
“AMERCO”
means
AMERCO,
a
Nevada corporation.
“Assignment
and
Acceptance” means an assignment and acceptance entered into
by the Lender and an assignee (with the consent of the Borrowers and the Lender if required by
Section 12.04), and accepted by the Lender, in the form of Exhibit A or any other form approved
by
the Lender.
“Black
Book”
means the National Auto Research Black Book Guide published by
Hearst
Corporation from time
to
time.
“Board”
means
the
Board
of
Governors
of
the
Federal
Reserve
System
of
the
United
States of America.
“Borrowers” means, collectively, jointly and severally, U-Haul Leasing & Sales
Co.,
a
Nevada
corporation,
U-Haul
Co.
of
Arizona,
an
Arizona
corporation
and
U-Haul
International,
Inc., a Nevada corporation.
“Borrowing
Base” means, as of any date, the lesser of (i) the product of (a) the
Advance Rate and (b) the Market Value of the Eligible
Vehicle
Collateral,
in
each case
as
of
such
date, or (ii)
the
Facility
Commitment
Amount as of such date.
“Borrowing
Base
Certificate”
means
an
Officer’s
Certificate
of
the
Borrowers
containing a calculation of the Borrowing Base, including a Vehicle Schedule, and substantially
in
the
form of
Exhibit
D or
such
other form as
shall
be
approved by the Lender.
“Borrowing
Base
Deficiency” means, as of any date, the amount, if any, by which
the
Outstanding
Loans
exceed the Borrowing
Base.
“Borrowing
Request” means a request by the Borrowers for a Loan in
accordance
with Section
2.03 and
substantially
in
the
form
of
Exhibit
C or
such
other
form
as
shall
be
approved by the Lender.
“Business
Day”
means
any
day
that
is
not
a
Saturday,
Sunday
or
other
day
on
which
commercial
banks
in
New
York,
New
York,
Reno,
Nevada
or
Phoenix,
Arizona
are
authorized
or required by law to remain
closed.
“Certificate
of
Title” means a certificate of title of a Vehicle issued in paper form
by the relevant governmental department or agency in the jurisdiction in which the Vehicle is
registered,
or
a
record
maintained
by
such
governmental
department
or
agency
in
the
form of
information stored in electronic media; provided, that to the extent that a certificate of title in
paper
form
or
such
record
stored
on
electronic
media
has
not
been
issued
or
is
not
being
maintained,
the application (or copy thereof) for the foregoing.
“Change in Control” means (a) any “person” or “group” (within the meaning of
Section 13(d) and 14(d) of the Exchange Act), other than Permitted Holders, that becomes the
beneficial owner (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of 50%, or more, of the Capital Stock of any of the Borrowers having the right to vote
for the election of members of the Board of Directors or (b) majority of the members of the
Board
of
Directors do not constitute Continuing Directors.
“Change in Law” means (a) the adoption of any law, rule or regulation after the
date of this Agreement, (b) any change in any law, rule or regulation or in the interpretation or
application
thereof
by
any
Governmental
Authority
after
the
date
of
this
Agreement
or
(c)
compliance
by
the
Lender
(or,
for
purposes
of
Section
5.09(b),
by
any
lending
office
of
the
Lender or by the Lender’s holding company) with any request, guideline or directive (whether or
not having the force of law) of any Governmental Authority made or issued after the date of this
Agreement.
“Closing
Date”
means
March 12, 2007.
“Code”
means
the
Internal Revenue Code of 1986,
as
amended
from time
to
time.
2
“Collateral”
has
the
meaning
set forth
in the
Security
Agreement.
“Commitment” means, the commitment, of the Lender to make Loans hereunder
up
to the
Facility
Commitment
Amount.
“Commonly
Controlled
Entity”
means
an
entity,
whether
or
not
incorporated,
which is under common control with a Loan Party within the meaning of Section 4001 of ERISA
or is a part of a group which includes a Loan Party and which is treated as a single employer
under Section 414(b) or (c) of the Code or, for the purposes of the Code, Section 414(m) or (o)
of
the
Code.
“Concentration
Account”
means
the
account
established
with
the
Concentration
Account
Bank in the name
of UHI
bearing account
No.
42-4903.
“Concentration
Account
Bank”
means
JPMorgan
Chase
Bank,
N.A.,
and
its
successors,
or
another
depositary
institution
mutually
acceptable
to
the
Lender
and
the
Servicer/Manager.
“Continuing
Directors”means the directors of AMERCO on the Original Closing
Date and each other director of AMERCO, if such other director’s nomination for
election to the
Board
of
Directors
of
AMERCO
is
recommended
by
a
majority
of
the
then
Continuing
Directors.
“Control” means the possession, directly or indirectly, of the power to direct or
cause
the
direction
of
the
management
or
policies
of
a
Person,
whether
through
the
ability
to
exercise voting power, by contract or otherwise.
“Controlling” and “Controlled” have meanings
correlative
thereto.
“Custodian” means the Servicer/Manager in its capacity as custodian pursuant to
Section
4.02.
“Dealership
Contract” means a U-Haul dealership contract between a subsidiary
of
UHI,
on one hand, and a named
U-Haul
dealer, on the other.
“Default” means any event or condition which constitutes an Event of Default or
which upon notice, lapse of time or
both would, unless cured or waived, become an Event of
Default.
“Deposit
Date”
means, with respect to each Payment Date, the 11th calendar day
of the preceding month, or if such day is not a Business Day, the next Business Day immediately
following
such calendar day.
“Dollars”
or
“$”
means
the
lawful money of the United States of America.
“Effective
Date” means the date on which the conditions specified in Section 7.01
are
satisfied (or waived in accordance
with
Section 12.02).
3
“Eligible
Vehicle
Collateral”
means,
as
of
any
date,
a
Vehicle
pledged
to
the
Lender
under
the
Security
Agreement
as
to
which
the
conditions
set
forth
on
Annex
I are
satisfied
as of such date.
“ERISA”
means
the
Employee
Retirement
Income
Security
Act
of
1974,
as
amended
from
time
to
time.
“ERISA
Affiliate”
means any trade or business (whether or not incorporated) that,
together with any Borrower, is treated as a single employer under Section 414(b) or (c) of the
Code or, solely for purposes of Section
302 of ERISA and Section
412 of the Code, is treated as
a
single
employer
under Section
414 of the Code.
“ERISA
Event” means (a) any “reportable event”, as defined in Section 4043 of
ERISA or the regulations issued thereunder with respect to a Plan (other than an event for which
the
30-day
notice
period
is
waived);
(b)
the
existence
with
respect
to
any
Plan
of
an
“accumulated
funding
deficiency”
(as
defined
in
Section
412
of
the
Code
or
Section
302 of
ERISA),
whether
or
not
waived;
(c)
the
filing
pursuant
to
Section
412(d) of
the
Code
or
Section
303(d) of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by any Loan Party or any of its ERISA Affiliates of any
liability under Title IV of ERISA with respect to the termination of any Plan; (e) the receipt by
any
Loan
Party
or
any
ERISA
Affiliate
from the
PBGC
or
a
plan
administrator
of any
notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee to administer any
Plan; (f) the incurrence by any Loan Party or any of its ERISA Affiliates of any liability with
respect to the withdrawal or partial withdrawal from any Plan or Multiemployer Plan; or (g) the
receipt
by
any
Loan
Party
or
any
ERISA
Affiliate
of
any
notice,
or
the
receipt
by
any
Multiemployer
Plan
of
any
Loan
Party
or
any
ERISA
Affiliate
of
any
notice,
concerning
the
imposition
of
Withdrawal
Liability
or
a
determination
that
a
Multiemployer
Plan
is,
or
is
expected
to be, insolvent
or in
reorganization,
within the meaning
of
Title IV of ERISA.
“Event
of
Default”
has
the
meaning
assigned to such term in
Section 10.01.
“Facility”
means
the
committed
loan
facility
offered
by
the
Lender
to
the
Borrowers
pursuant
to this
Agreement.
“Facility
Commitment
Amount”
means
$100,000,000.
“Fee
Letter”
means
the
letter
agreement,
dated
as
of
the
Closing
Date,
by
the
Lender
and the Borrowers.
“Financial
Officer” means, with respect to any Person, the chief executive officer,
the chief financial officer, principal accounting officer, treasurer, assistant treasurer or controller
of
such
Person.
“GAAP” means, subject to Section 1.03, generally accepted accounting principles
in
the
United States of America.
“Governmental
Authority”
means
the
government
of
the
United
States
of
America, any other nation or any political subdivision thereof, whether state or local, and any
4
agency, authority, instrumentality, regulatory body, court, central bank or other entity exercising
executive,
legislative,
judicial,
taxing,
regulatory
or
administrative
powers
or
functions
of
or
pertaining to government.
“Guarantee”
of
or
by
any
Person
(the
“guarantor”)
means
any
obligation,
contingent
or
otherwise,
of
the
guarantor
guaranteeing
or
having
the
economic effect of
guaranteeing any Indebtedness or other obligation of any other Person (the “primary
bligor”)
in
any manner, whether directly or indirectly, and including any obligation of the guarantor,
direct
or indirect, (a) to purchase or pay (or advance or supply funds for the purchase or payment of)
such
Indebtedness
or
other
obligation
or
to
purchase
(or
to
advance
or
supply
funds for the
urchase of) any security for the payment thereof, (b) to purchase or lease property, securities or
services for the purpose of assuring the owner of such Indebtedness or other obligation of the
payment thereof, (c) to maintain working capital, equity capital or any other financial statement
condition
or
liquidity
of
the
primary
obligor
so
as
to
enable
the
primary
obligor
to
pay
such
Indebtedness or other obligation or (d) as an account party in respect of any letter of credit or
letter
of
guaranty
issued
to
support
such
Indebtedness
or
obligation;
provided,
that
the
term
Guarantee
shall
not
include
endorsements
for
collection
or
deposit
in
the
ordinary
course
of
business.
“Guarantee
Agreement”
means
the
Guarantee
made
by
UHI
in
favor
of
the
Lender,
in the form of
Exhibit
B.
“Indebtedness”
means,
with
respect
to
any
Person,
without
duplication,
(i)
all
obligations of such Person for borrowed money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, (iii) all indebtedness of others secured by (or for
which
the
holder
of
such
Indebtedness
has
an
existing
right,
contingent
or
otherwise,
to
be
secured
by)
any
Lien
on
property
owned
or
acquired
by
such
Person,
whether
or
not
the
obligations secured thereby have been assumed (only to the extent of the fair market value of
such
asset
if
such
Indebtedness
has
not
been
assumed
by
such
Person),
(iv)
all
Guarantees
of
such Person, (v) all capitalized lease obligations of such Person and (vi) all obligations of such
Person as an account party in respect of letters of credit and similar instruments issued for the
account
of such Person.
“Indemnitee”
has
the
meaning
set forth in Section 12.03(b).
“Interest
Period” means with respect to any Loan and Payment Date, in the case
of (i) the first Payment Date for such Loan, the period from and including the related Loan Date
to but excluding such first Payment Date and (ii) any other Payment Date, the period from and
including
each
Payment
Date
to
but
excluding
the
next
ensuing
Payment
Date;
provided,
however,
that
the
initial
Interest
Period
shall
be
the
period
from
and
including
the
Original
Closing
Date to but excluding the first Payment
Date.
“Interest
Rate”
means,
with
respect
to
any
Loan
and
Interest
Period,
subject
to
Section
5.07,
a
percentage
(in
each
case
computed
on
the
basis
of
the
actual
number
of
days
elapsed,
but assuming
a
360-day year) equal to:
5
(i) provided that no Event of Default has occurred and is continuing,
the
sum of (A)
the
Adjusted
LIBO
Rate for such
Interest Period
and
(B) the Margin;
and
(ii) upon
the
occurrence
and
during
the
continuation
of
an
Event
of
Default, the sum of (A)
the Adjusted LIBO Rate for such Interest Period, (B)
the Margin
and
(C)
an additional
2.00%
per
annum.
“Lender”
means
MLCFC, together with its successor and any assigns.
“LIBOR”
means,
with
respect
to
each
Interest
Period,
the
rate
of
interest
per
annum
(rounded
upwards,
if
necessary,
to
the
nearest
1/100th of
1%)
for
Dollar deposits in
London with a duration of one month, at or about 8:00 a.m. on the related LIBOR Determination
Date as such rate is specified on Bloomberg Money Markets Page 28, or, if such page ceases to
display such information, then such other page as may replace it on that service for the purpose
of display of such information, or, if such service ceases to display such information, then on
Telerate Page 3750. If such rate cannot be determined, then LIBOR means, with respect to such
Rate Period, the arithmetic mean of the rates of interest (rounded upwards, if necessary, to the
nearest 1/100th of 1%) offered to two prime banks in the London interbank market (selected by
the Lender) of Dollar deposits with a duration of one month at or about 8:00
a.m. on the related
LIBOR
Determination
Date.
“LIBOR
Business
Day”
means
a
Business
Day
on
which
trading
in
Dollars
is
conducted
by and between banks in the London interbank market.
“LIBOR
Determination
Date”
means,
with
respect
to
any
Interest
Period,
the
second
LIBOR Business Day prior to the first day of such Interest Period.
“Lien” means, with respect to any asset, (a) any mortgage, deed of trust, lien,
pledge, hypothecation, encumbrance, charge or security interest in, on or of such asset, (b) the
interest
of
a
vendor
or
a
lessor
under
any
conditional
sale
agreement,
capital
lease
or
title
retention agreement (or any financing lease having substantially the same economic effect as any
of the foregoing) relating to such asset and (c) in the case of securities, any purchase option, call
or
similar
right of a third party with respect to such
securities.
“Loan
Date” means any date on which a Loan is made to the Borrowers by the
Lender
pursuant
to
this Agreement.
“Loan
Documents”
means
this
Agreement,
the
Note,
the
Guarantee
Agreement,
the
Fee
Letter and the
Security Documents.
“Loan
Parties”
means
the
Guarantor, the Servicer/Manager and
the
Borrowers.
“Loans” means an advance made to the Borrowers by the Lender pursuant to this
Agreement.
“Margin”
has
the
meaning
specified in the Fee Letter.
“Margin
Stock”
has
the
meaning
set forth in Regulation U of the Board.
6
“Market
Value”
means,
on
any
date
of
determination,
for
any
Eligible
Vehicle
Collateral
or
the
pool
of
Eligible
Vehicle
Collateral,
the
value
specified
in
Exhibit
G for
the
applicable
vehicle
model,
as
amended
from
time
to
time
in
writing
in
the
Lender’s
sole
discretion.
“Material
Adverse
Change”
means
a
material
adverse
change
in
the
business,
operations
or condition, financial or otherwise, taken as a whole, of
the
Borrowers or AMERCO.
“Material Adverse Effect” means a material adverse effect on (a) the business,
condition (financial or otherwise), operations or performance of the Borrowers, (b) the ability of
any
Borrower
or
any
other
Loan
Party
to
perform
any
of
its
obligations
under
any Loan
Document,
(c)
the
legality,
validity,
binding
effect
or
enforceability
of
this
Agreement
or
any
other Loan Document or (d) the Collateral or the first priority perfected security interest of the
Lender
in
the
Collateral.
“MLCFC”
means
Xxxxxxx
Xxxxx
Commercial
Finance
Corp.,
a
Delaware
corporation.
“Monthly Settlement
Report”
means a report substantially in the form set forth on
Exhibit E.
“Multiemployer
Plan” means a multiemployer plan as defined in
Section 4001(a)(3) of ERISA.
“Net
Proceeds”
means,
with
respect
to
any
casualty
or
condemnation
event,
(a)
the cash proceeds received in respect
of
such
event
including (i) in the case of a casualty,
insurance
proceeds, and (ii) in the case of a condemnation
or
similar
event,
condemnation
awards and similar payments, net of (b) the sum of all reasonable fees and out-of-pocket expenses paid
by
the
Borrowers
to
third parties
(other
than
Affiliates)
in
connection
with such
event.
“Non-Use
Fee”
has
the
meaning
set forth in Section 5.01(b).
“Note”
means
the
Note,
dated
the
Closing
Date,
executed
by
the
Borrowers,
payable
to
the
order
of
the
Lender,
in
the
maximum
principal
amount
of
the
Facility
Commitment
Amount,
in
substantially the form of
Exhibit
F.
“Obligations”
means
all
obligations secured under the Loan Documents.
“Original
Closing Date”
means
June
28, 2005.
“Outstanding
Loans”
means,
as
of
any
date,
the
unpaid
principal
amount
of
all
Loans outstanding hereunder on such date, after giving effect to all repayments of Loans and the
making
of
new Loans on such date.
“Participant”
has
the
meaning
set forth in Section 12.04(e).
7
“Payment
Date”
means the 10th calendar day of each month, or if such day is not
a Business Day, the next Business Day immediately following such calendar day, commencing
with
the
first such date to occur in July 2005.
“PBGC” means the Pension Benefit Guaranty Corporation referred to and defined
in
ERISA
and any successor
entity performing
similar
functions.
“Permitted Encumbrances”
means:
(a) Liens
imposed
by
law
for
taxes,
assessments,
governmental
charges
or
similar
claims
that
are not yet due or are being contested in compliance
with Section 8.05;
(b) statutory or common law Liens of landlords and carriers, warehousemen,
mechanics,
suppliers,
materialmen,
repairmen
and
other
similar
Liens,
arising
in
the
ordinary
course of business and securing obligations that are not yet delinquent or are being contested in
compliance
with Section 8.05;
(c) Liens
incurred
or
deposits
made
in
the
ordinary
course
of
business
in
connection
with
workers’
compensation,
unemployment
insurance
and
other
types
of
social
security;
(d) Liens
incurred
or
deposits
made
to
secure
the
performance
of
tenders,
bids, leases, statutory or regulatory obligations, surety and appeal bonds, government contracts,
performance and return-of-money bonds and other obligations of a like nature, in each case in
the ordinary course of business, and a bank’s unexercised right of set-off with respect to deposits
made
in
the ordinary course;
(e) judgment liens in respect of judgments that do not constitute an Event of
Default
under clause (j) of Section 10.01;
(f) interests of lessees under leases or subleases granted by the Borrowers as
lessor
that
do
not
materially
interfere with the ordinary
course
of
business of the Borrowers;
(g) interests
of
licensees
under
licenses
or
sublicenses
granted
by
the
Borrowers as licensor that do not materially interfere with the ordinary course of business of the
Borrower;
(h) any
interest
or
title
of
a
lessor
in
any
property
subject
to
any
capital
or
operating lease otherwise not entered into in violation of the Loan Documents or in any property
not
constituting Collateral; and
(i) any
interest
or
title
of
a
licensor
in
any
property
subject
to
any
license
otherwise
not
entered
into
in
violation of the Loan Documents.
“Permitted
Holder”
means Xxxxxx X. Xxxxx, Xxxx X. Xxxxx, Xxxxx X. Xxxxx and
their Family Members, and their Family Trusts.
As used in this definition, “Family Member”
means, with respect to any individual, the spouse and lineal descendants (including
children and
grandchildren by adoption) of such individual, the spouses of each such lineal
descendants, and
8
the
lineal
descendants
of
such
Persons;
and
“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.
“Person” means any natural person, corporation, limited liability company, trust,
joint
venture, association, company,
partnership, Governmental Authority or other entity.
“Plan” means at a particular time, any employee benefit plan which is covered by
Title IV of ERISA and in respect of which a Loan Party or a Commonly Controlled Entity is (or,
if such plan were terminated at such time, would under Section 4069 of ERISA be deemed to be)
an
“employer”
as defined in Section 3(5) of ERISA.
“Prime
Rate”
means the rate of interest per annum published from time to time in
the “Money Rates” column (or any successor column) of The Wall Street Journal as the prime
rate or, if such rate shall cease to be so published or is not available for any reason, the rate of
interest publicly announced from time to time by any “money center” bank based in New York
City selected by the Administrative Agent for the purpose of quoting such rate, provided such
commercial
bank
has
a
combined
capital
and
surplus
and
undivided
profits
of
not
less
than
$500,000,000.
Each
change
in
the
Prime
Rate
shall
be
effective
from
and
including
the
date
such
change is published.
“Records
Location
List”
has
the
meaning
set forth in Section 4.02(c).
“Requirement of Law” means, as to any Person, any law, statute, rule, treaty,
regulation or determination of an arbitrator, court or other Governmental Authority, in each case
applicable to or binding upon such Person or any of its properties or to which such Person or any
of
its
properties may
be
bound or affected.
“Security
Agreement”
means the Security Agreement, dated as of June 28, 2005,
by
and
between
the
Borrowers
and
the
Lender,
as
amended
by
the
Amended
and
Restated
Security
Agreement,
dated as of March 12, 2007.
“Security Documents” means the Security Agreement, and each financing
statement, Certificate of Title, pledge, endorsement or other document or instrument delivered in
connection
therewith.
“Servicer/Manager”
shall
mean
UHI.
“Statutory
Reserve
Rate”
means
a
fraction
(expressed
as
a
decimal),
the
numerator of which is the number one and the denominator of which is the number one minus
the aggregate of the maximum reserve percentages (including any marginal, special, emergency
or supplemental reserves) expressed as a decimal established by the Board to which the Lender
(if subject to regulation by the Board) is subject with respect to the Adjusted LIBO Rate, for
eurocurrency funding (currently referred to as “Eurocurrency Liabilities” in Regulation D of the
Board).
Such reserve percentages shall include those imposed pursuant to such Regulation D.
Loans
shall
be
deemed
to
constitute
eurocurrency
funding
and
to
be
subject
to
such
reserve
requirements without benefit of or credit for proration, exemptions or offsets that may be
available from time to time to the Lender under such Regulation D or any comparable regulation.
9
The Statutory Reserve Rate shall be adjusted automatically on and as of the effective date of any
change
in any reserve
percentage.
“Subsidiary” means, as to any Person, a corporation, partnership or other entity of
which
shares
of
stock
or
other
ownership
interests
having
ordinary
voting power (other than
stock or such other ownership interests having such power only by reason of the happening of a
contingency) to elect a majority of the board of directors or other managers of such corporation,
partnership
or
other
entity
are
at
the
time
owned,
or
the
management
of
which
is
otherwise
controlled,
directly or indirectly
through one or more intermediaries,
or both, by such Person.
“Targeted
Principal”
means, with respect to any Deposit Date, an amount equal to
the difference, if any, between the Outstanding Loans on such Deposit Date and the Borrowing
Base as of the related Payment Date; provided, however, that upon the occurrence of an Event of
Default,
the
Targeted Principal
shall equal the
principal balance of the Outstanding Loans.
“Taxes”
means
with
respect
to
any
Person
any
and
all
present
or
future
taxes,
levies,
imposts,
duties,
deductions,
charges
or
withholdings
imposed
by
any
Governmental
Authority
excluding,
such
taxes
(including
income
or
franchise
taxes)
as
are
imposed
on
or
measured
by such Person’s net income.
“Termination
Date”
means
the
Payment Date in March 2011.
“Transactions”
means
the
execution,
delivery
and
performance
by
each
Loan
Party of the Loan Documents to which it is to be a party, the borrowing of Loans and the use of
the
proceeds thereof.
“Truck
Age”
means,
for
any
Vehicle
on
any
date
of
determination,
(i)
if
such
determination is made at any time during the period from
January through June, inclusive, of any
year then the difference between the current year and the model year of such Vehicle and (ii) if
such
determination is made at any time
during
the
period
from July
through
December,
inclusive,
of any year then the difference between the current year and the model year of such Vehicle plus
0,5.
“UCC”
means
the
Uniform
Commercial
Code
as
in
effect
in
the
State
of
New
York
as
of the date hereof.
“Unused
Fee Rate”
has
the
meaning
specified in the Fee Letter.
“UHI”
means
U-Haul International, Inc.,
a
Nevada corporation.
“Vehicle” means a motor vehicle owned by one of the Borrowers and constituting
part
of
the Borrowers’
fleet of rental assets.
“VehicleFiles”means, with respect to each Vehicle, (i) the original Certificate
ofTitle (or an original or certified copy of the application for a Certificate of Title) and all related
documents retained on file by the Servicer/Manager, in accordance with its usual and customary
business practices, evidencing the ownership of the Vehicle and, from and after the date required
pursuant
to
clause
(vi)
of
Annex
I hereto,
the
Lien
of
the
Lender;
and
(ii)
any
and
all
other
10
documents that either of the Servicer/Manager or the Borrowers shall retain on file, in
accordance with its usual and customary practices, relating to the Vehicle; provided, that to the
extent consistent with its usual and customary practices, any of the foregoing items may, in lieu
of a written document, be evidenced by a record or records consisting of information stored as a
record
on an electronic
medium which
is
reproducible in perceivable form.
“Vehicle
Schedule”
means
the
schedule
of
Vehicles
pledged
to
the
Lender
pursuant
to
the
Security
Agreement,
as
the
same
may
be
updated
from
time
to
time
by
each
Borrowing
Base Certificate provided by
the
Borrowers to the Lender.
“Withdrawal
Liability”
means
liability
to
a
Multiemployer
Plan
as
a
result
of a
complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part I
of Subtitle
E of Title
IV
of ERISA.
Section
1.02. Terms
Generally. The
definitions
of
terms
herein
shall
apply
equally to the singular and plural forms of the terms defined.
Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine and neuter forms.
The words
“include”,
“includes”
and
“including”
shall
be
deemed
to
be
followed
by
the
phrase
“without
limitation.” The word “will” shall be construed to have the same meaning and effect as the word
“shall.” Unless
the
context
requires
otherwise
(a)
any
definition
of
or
reference
to
any
agreement,
instrument
or
other
document
herein
shall
be
construed
as
referring
to
such
agreement,
instrument
or
other
document
as
from
time
to
time
amended,
supplemented
or
otherwise
modified
(subject
to
any
restrictions
on
such
amendments,
supplements
or
modifications
set
forth
herein),
(b)
any
reference
herein
to
any
Person
shall
be
construed
to
include such Person’s successors and assigns, (c) the words “herein”, “hereof” and “hereunder”,
and words of similar import, shall be construed to refer to this Agreement in its entirety and not
to
any
particular
provision
hereof,
(d)
all
references
herein
to
Articles,
Sections,
Exhibits
and
Schedules
shall
be
construed
to
refer
to
Articles
and
Sections
of,
and
Annexes,
Exhibits
and
Schedules to, this Agreement and (e) the words “asset” and “property” shall be construed to have
the
same
meaning
and
effect
and
to
refer
to
any
and
all
tangible
and
intangible
assets
and
properties,
including cash, securities, accounts, contract rights, licenses
and intellectual property.
Section
1.03. 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
VIII
or
Article
IX,
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
Borrowers'
audited
financial
statements
referred
to
in
Section 8.01. If any change in accounting principles from those used in the preparation of the
audited financial statements referred to in Section 8.01 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,
Article VIII or Article IX, 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 AMERCO’s financial condition will 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
11
accounting or financial nature in accordance with GAAP as in effect prior to any such change in
accounting
principles
until
the
parties
hereto
have
ended
the
applicable
provisions
of
this
Agreement.
ARTICLE
II
The
Loans
Section
2.01. Commitments. Subject
to
the
terms
and
conditions
set
forth
herein, the Lender agrees to make Loans
to
the
Borrowers at
any
time
and
from time
to
time
during the term of this Agreement in an aggregate principal amount not exceeding the Facility
Commitment Amount.
No Loan shall be made (i)
on a day other than a Business Day, (ii) in an
amount
which
would
cause the Outstanding Loans to exceed the
aggregate amount
of
the Facility
Commitment
Amount
as
of
the
proposed
Loan
Date,
(iii) in
an
amount
that
would
result
in
a
Borrowing Base Deficiency or (iv) if the conditions precedent set forth in Section
7.02 have not
been
satisfied
or
waived.
All
Loans
may
be
borrowed,
repaid
and
reborrowed
in
accordance
with the terms of this Agreement.
All Loans shall be full recourse to the Borrowers, jointly and
severally.
Section
2.02. The
Note.
(a) The
Borrowers
hereby,
jointly
and
severally,
unconditionally
promise
to
repay all Obligations outstanding hereunder when due.
The obligation of the Borrowers to repay
the Loans shall be evidenced by the Note.
The Lender shall (i) record on its books the date and
amount
of
each
Loan
to
the
Borrowers
hereunder
and
(ii) prior
to
any
transfer
of
the
Note,
endorse such information on the schedule attached to the Note or any continuation thereof.
The
failure
of
the
Lender
to
make
any
such
recordation
shall
not
affect
the obligations
of
the
Borrowers
hereunder or under the Note.
(b) The
outstanding
principal
amount
of
the
Loans
shall
be
payable
as
set
forth in Article
V.
The Borrowers shall pay interest on the outstanding principal amount of each
Loan from the date each such Loan is made until the principal amount thereof is paid in full at
the rates and pursuant to the terms set forth in Article
V.
The Borrowers shall pay the various
fees
and
expenses set forth in, and pursuant to the terms
of,
Article
V.
Section
2.03. Making
the Loans.
(a) To request a Loan, the Borrowers shall deliver to the Lender a completed
Borrowing Request, together with a Borrowing Base Certificate calculating the Borrowing Base
as
of
the
prior
Business
Day
not
later
than
3:00
p.m.,
New
York
City
time,
two
(2)
Business
Days
before the date of the proposed Loan; provided
that
the
Borrowers may
make
not more
than
five (5) requests for Loans in any single calendar month (it being understood that all Borrowing
Requests made by the Borrowers on the same date shall be treated as a single request for a Loan
for purposes of this limitation).
Each such Borrowing Request shall be irrevocable and shall be
delivered by telecopy to the Lender of a written Borrowing Request in a form approved by the
Lender
and signed by the Borrowers.
12
(b) Each requested Loan shall be in an aggregate principal amount that is an
integral
multiple
of $1,000,000 and not less than $10,000,000.
(c) The
Lender
shall
make
each
Loan
to
be
made
by
it
hereunder
on
the
proposed date thereof by wire transfer of immediately available funds by 3:00 p.m., New York
City
time,
to
an
account
of
the
Borrowers
designated
by
the
Borrowers
in
the
applicable
Borrowing
Request.
Section
2.04. Repayment
of
Loans; Evidence of Debt.
(a) The
Borrowers,
jointly
and
severally,
hereby
unconditionally
promise
to
pay
to
the Lender
the
then
unpaid
principal amount
of
each Loan as provided
in
Section 5.07.
(b) The Lender shall maintain in accordance with its usual practice an account
or
accounts
evidencing
the
indebtedness
of
the
Borrowers
to
the
Lender
resulting
from
each
Loan, including the amounts of principal and interest payable and paid to the Lender from time
to
time
hereunder.
(c) The Lender shall maintain accounts in which it shall record (i) the amount
of each Loan made hereunder and the Interest Period applicable thereto, (ii) the amount of any
principal
or
interest
due
and
payable
or
to
become
due
and
payable
from
the
Borrowers
hereunder
and (iii) the amount of any sum received
by the Lender hereunder.
(d) The entries made in the accounts maintained pursuant to paragraph (b) or
(c) of this Section shall be prima facie evidence of the existence and amounts of the obligations
recorded therein; provided that the failure of the Lender to maintain such accounts or any error
therein
shall
not
in
any
manner
affect
the
obligation
of
the
Borrowers
to
repay
the
Loans
in
accordance
with
the terms
of this
Agreement.
ARTICLE
III
SECURITY
Section
3.01. Security
Interest.
Pursuant to and under the Security Agreement,
the Borrowers, shall (as and to the extent provided in the applicable Security Document) pledge
and grant to the Lender, and its successors, indorsees, transferees and assigns, as security for the
prompt
and
complete
payment
and
performance
when
due
(whether
at
the
stated
maturity,
by
acceleration or otherwise) of all or a portion of the Obligations (as specified in the applicable
Security Document), a security interest in and assignment of all of the Borrowers’ right, title and
interest
in,
to
and
under
(but
none
of
its
obligations
under)
the
Collateral
described
in
the
applicable
Security
Document,
whether
(with
respect
to
any
“Receivables”
or
“Proceeds”
comprising
Collateral
(each
as
defined
in
the
Security
Agreement)
now
existing
or
hereafter
arising
by
the
Borrowers
and
wherever
located,
all
proceeds
thereof
and
any
other
collateral
described therein.
The foregoing assignment does not constitute and is not intended to result in a
creation or an assumption by the Lender of any obligation of the Borrowers or any other Person
in
connection
with
any
or
all
of
the
Collateral
or
under
any
agreement
or
instrument
relating
thereto. Anything
herein
to
the
contrary
notwithstanding,
(i)
the
Servicer/Manager
shall
perform its services, duties and obligations with respect to the Collateral to the extent set forth in
13
Article IV to the same extent as if this Agreement had not been executed, (ii)
the exercise by the
Lender, of any of its rights in, to or under the Collateral shall not release the Servicer/Manager
from any of its duties or obligations relating to the Collateral and (iii)
the Lender shall not have
any obligations or liability under the Collateral by reason of this Agreement, or be obligated to
perform any of the obligations or duties of the Servicer/Manager thereunder or to take any action
to collect or
enforce
any claim for
payment
assigned
hereunder.
Section
3.02.
Release
of Collateral.
(a) Except as otherwise set forth in the Security Agreement, the Liens created
by the Security Agreement in favor of the Lender, with respect to the Collateral shall terminate
(i) with respect to any Collateral released pursuant to Section 3.02(c), upon receipt by the Lender
of
the
certificate
required
by
such
Section,
and
(ii)
with
respect
to
all
of
the
Collateral
upon
(A)
payment in full of the Loans and all other Obligations due hereunder and (B)
termination
of
the
Facility.
(b) Upon
the
release
of
Collateral
as
set
forth
in
Section
3.02(a), upon
the
request of, and at the expense of the Borrowers, the Lender shall
execute and file such
releases or
assignments of financing statements or, UCC termination statements and other documents and
instruments
as
may
be
reasonably
requested
by
the
Borrowers
to
effectuate
release
of
the
Collateral.
The Lender will not have legal title to any part of the released Collateral on and will
have
no
further interest in or rights with
respect
to such
Collateral.
(c) If
no
Default
or
Event
of
Default
has
occurred
and
is
continuing,
the
Borrowers
may
without
the
consent
of
the
Lender,
obtain
a
release
of
any
Vehicle
that
is
Collateral
from
the
lien
of
the
Security
Agreement,
including
in
connection
with
the
sales
or
disposition of such Vehicles; provided that in connection with any such release, the Borrowers
provide
to
the
Lender
(i)
written
prior
written
notice
of
such
release,
including
an
attached
Borrowing
Base
Certificate
and
attached
Vehicle
Schedule
(pro
forma
as
of
the
date
of
such
release) not less than three (3) Business Days before the date of such release, and (ii) an officer’s
certificate stating (A) no adverse selection was used in selecting the Vehicles to be released, (B)
after giving effect to sale, no Borrowing Base Deficiency shall exist and detailing, if necessary, a
payment of cash to the Lender on such date representing a prepayment of principal in an amount
necessary
to cause no Borrowing Base Deficiency to exist and (C) no Default or Event
of
Default
exists
on
the Facility.
ARTICLE
IV
SERVICING
AND MAINTENANCE
Section
4.01. Servicer/Manager.
(a) UHI will act as Servicer/Manager hereunder to provide administration and
collection
services,
and
to
provide
management
and
maintenance
services
with
respect
to
the
Vehicles constituting Collateral in accordance with its
standard
policies
and
procedures.
UHI
shall
continue
to
serve
as
Servicer/Manager
hereunder
and
agrees
to
perform
the
duties
and
obligations
of
the
Servicer/Manager
contained
herein
and
in
the
other
Loan
Documents
until
14
such
time
as
a
Successor
Servicer/Manager
has
accepted
an
appointment
hereunder
in
accordance
with
the
terms
hereof.
UHI
hereby
makes
to
the
Lender,
each
representation
and
warranty made by it in its capacity as Servicer/Manager in each Loan Document, and each such
representation
and
warranty is hereby incorporated
herein by this reference.
(b) Not later than the second Business Day before the Payment Date of each
month, the Servicer/Manager shall deliver to the Lender a Monthly Settlement Report (including
a
Borrowing Base Certificate) relating to the preceding calendar month.
Section
4.02. Custody
of Vehicle Files.
(a) The Lender hereby revocably appoints UHI as Custodian of the Vehicle
Files, and UHI hereby confirms its acceptance of such appointment, to act as the agent of the
Lender as Custodian of the Vehicle Files. Upon any sale or disposition of a Vehicle, UHI shall
deliver the related Certificate of Title to the Person purchasing or otherwise acquiring the related
Vehicle.
(b) At
the
times
specified
in
the
immediately
following
sentence,
UHI
shall
provide an officer’s certificate to the Lender confirming (i) the number of Vehicle Files received
and shall confirm that it has received the Certificate of Title pertaining to each Vehicle and (ii)
that UHI has received all the documents and instruments necessary for UHI to act as the agent of
the Lender for the purposes set forth in this Section 4.02, including the documents referred to
herein.
The officer’s certificate described in the foregoing sentence shall be provided within ten
(10)
Business
Days
after
the
addition
of
any
Vehicles
to
the
Collateral,
for
any
such
Vehicle
added to the Collateral after the Original Closing Date.
The Lender is hereby authorized to rely
on
such
officer’s certificate.
(c) UHI
shall
perform
its
duties
as
Custodian
of
the
Vehicle
Files
in
accordance with its usual and customary practices. UHI, in its capacity as Custodian, shall (i)
hold the Vehicle Files for the use and benefit of the Lender, and segregate such Vehicle Files
from its other books, records and files and (ii) maintain accurate and complete accounts, records
either original execution documents or copies of such originally executed documents shall be
sufficient) and computer systems pertaining to each Vehicle File. As Custodian of the Vehicle
Files, UHI shall conduct, or cause to be conducted, periodic audits, which shall be performed not
less
frequently
than
UHI
performs
such
audits
of
vehicles
similarly
situated
with
UHI,
of
the
Vehicle Files held by it under this Agreement, and of the related accounts, records and computer
systems,
in
such
a
manner
as
shall
enable
the
Lender
to
identify
all
Vehicle
Files
and
such
related
accounts,
records
and
computer
systems
and
to
verify,
if
the
Lender
so
elects,
the
accuracy of UHI’s record-keeping.
UHI shall promptly report to the Lender any material failure
on its part to hold the Vehicle Files and maintain its accounts, records and computer systems as
herein
provided and promptly take appropriate action to remedy
any
such failure.
(d) UHI
shall
maintain,
or
cause to be maintained, in accordance
with its usual
and customary practices, a record of the location of the Vehicle Files relating to any Vehicle and
the related accounts, records, and computer systems maintained by UHI or any third party under
sub-contract with UHI (such record is hereinafter referred to as a “Records
Location List”).
UHI
shall maintain, or cause to be maintained, a separate Records Location List for the Collateral.
15
UHI may, with the consent of the Lender, which consent may be withheld for any reason in the
sole discretion of the Lender, subcontract with third parties to perform the duties of Custodian of
the Vehicle Files, in which case the name and address of the principal place of business of such
third party, and the location of the offices of such third party where Vehicle Files are maintained,
shall be specified on the applicable Records Location List.
UHI shall make available, on five (5)
Business Days’ written notice, to the Lender, or its duly authorized representatives, attorneys, or
auditors, a copy of the Records Location List with respect to the Collateral.
UHI shall, at its own
expense,
maintain
at
all
times
while
acting
as
Custodian
and
keep
in
full
force
and
effect
(i)
fidelity
insurance,
(ii)
theft
of
documents
insurance,
(iii)
fire
insurance
and
(iv)
forgery
insurance. All
such
insurance
shall
be
in
amounts,
with
standard
coverage
and
subject
to
deductibles, as are customary for similar insurance typically maintained by Persons that act as
custodian
in
similar
transactions.
(e) UHI’s
appointment
as
Custodian
shall
hereby
continue
in
full
force
and
effect
until
UHI,
as
Servicer/Manager,
is
terminated
as
custodian
in
writing
by
the
Lender
or
until
this Agreement
shall
be terminated.
(f) As Custodian, UHI shall: (i) maintain continuous custody of the Vehicle
Files
in
secure
and
fire
resistant
facilities;
(ii)
with
respect
to
the
Vehicle
Files,
(A)
act
exclusively
as
the
Custodian
for
the
benefit
of
the
Lender
for
so
long
as
this
Agreement
is
outstanding, and (B) hold all Vehicle Files for the exclusive use (notwithstanding clauses (iii)
and (iv) below) and for the benefit of the Lender; (iii) in the event that UHI is not the Custodian,
to the extent UHI directs the Custodian in writing, deliver certain specified Vehicle Files to UHI
to enable the Servicer/Manager to service the Vehicle Files pursuant to this Agreement; (iv) in
the event that UHI is not the Custodian, upon one Business Day’s prior written notice, permit the
Servicer/Manager and the Lender to examine the Vehicle Files in the possession, or under the
control, of the Custodian; (v) hold the Vehicle Files held by it in accordance with this Agreement
on
behalf
of
the
Lender,
and
maintain
such
accurate
and
complete
accounts,
records
and
computer
systems
pertaining
to
each
Vehicle
File
as
shall
enable
the
Servicer/Manager
to
comply
with
this
Agreement;
(vi)
in
performing
its
duties
as
Servicer/Manager
hereunder,
act
with reasonable care, using that degree of skill and attention that UHI exercises with respect to
the
files
relating
to
all
comparable
Vehicles
that
UHI
owns
or
services
or
holds
for
itself
or
others; (vii) (A) conduct, or cause to be conducted, periodic physical inspections of the Vehicle
Files held by it under this Agreement and of the related accounts, records and computer systems,
(B) maintain the Vehicle Files in such a manner as shall enable the Servicer/Manager and the
Lender,
to
verify
the
accuracy
of
UHI’s
and
the
Servicer/Manager’s
record
keeping,
(C)
promptly report to the Lender, any material failure on its part to hold the Vehicle Files and
maintain its accounts, records and computer systems as herein provided and (D) promptly take
appropriate action to remedy any such failure; (viii) maintain each Vehicle File at the address of
UHI
at
0000
X.
Xxxxxxx
Xxxxxx,
Xxxxxxx,
XX
00000,
or
at
such
other
location
as
shall
be
specified by the Lender, by thirty (30) days’ prior written notice; (ix) permit the Lender, or its
respective duly authorized representatives, attorneys or auditors to inspect the Vehicle Files and
the
related
accounts,
records
and
computer
systems
maintained
by
UHI
as
such
Persons
may
reasonably request; and (x) upon written request from the Lender, release as soon as practicable
the Vehicle Files, or any or all documents in any Vehicle File, to the Lender, or any of its agents
or
designees,
as the
case may
be, at
such place or places
as
Lender
may
designate.
16
Section
4.03. Maintenance.
The
Servicer/Manager
shall
maintain
and
preserve
each Vehicle comprising Collateral in good working order and condition, ordinary wear and tear
excepted, and comply at all times with the usual and customary maintenance and repair practices
of UHI
and
its Affiliates
for
vehicles
of similar
type
and
use.
ARTICLE V
FEES,
INTEREST,
ACCOUNTS,
PAYMENTS, ETC.
Section
5.01. Fees
and
Expenses.
The
Borrowers
shall
pay
to
the
Lender,
the
following fully-earned and non-refundable fees in immediately available funds as set forth herein
and
in
accordance
with the terms
of this
Agreement:
(a) On the date hereof, a one-time amendment fee as specified in the Fee Letter,
(b) On each Payment Date, in arrears, a non-use fee in an amount equal to the
product
of
(i)
a
fraction,
the
numerator
of
which
is
the
number
of
days
in the
related
Interest
Period and the denominator of which is 360, (ii) the Unused Fee Rate and (iii) the average, for
each
day
in
such
period,
of
the
difference
between
(A)
amount
of
the
Facility
Commitment
Amount
on
such day and (B) the Lender’s Outstanding
Loans on such day (the “Non-Use Fee”);
(c) On any date on which a prepayment of substantially all Outstanding Loans
is made pursuant to Section
5.05, a prepayment fee in an amount equal to the product of (i) the
Facility Commitment Amount on such date, and (ii)
(A)
on or before March 12, 2008, 1.00%, or
(B)
at any time after March 12, 2008, and on or before March 12, 2009, 0.50%, or (C)
at any
time
after
March 12, 2009, 0.00%; and
(d) On
the
date
hereof
and
thereafter
promptly
upon
receipt
of
an
invoice
therefor,
all
legal
and
due
diligence
expenses
of
the
Lender
incurred
in
connection
with
this
Facility.
Section
5.02. Interest
on the Loans.
(a) Except as otherwise provided herein, each Loan shall bear interest on the
outstanding principal amount thereof and on any due but unpaid interest, for each day from the
date of the making of such Loan until the principal amount thereof and all interest thereon shall
be paid in full.
Interest on each Loan
shall accrue during each
related Interest Period at a rate per
annum equal to the applicable Interest Rate for such Interest Period.
The applicable
Interest Rate
for each Loan not repaid as of any Payment Date will be determined by the Lender and reset as
of
the
first
day
of
each
successive
Interest
Period
as
determined
in
accordance
with
Section
5.02(e),
and subject to Section 5.07.
(b) Except
as
otherwise
provided
herein,
all
accrued
and
unpaid
interest
on
each Loan as of the end of each Interest Period shall be payable in arrears on the related Payment
Date
during
the
term
of
this
Agreement
in
accordance
with
Section
5.04(a).
All
accrued
and
unpaid
interest shall be due and payable upon the occurrence of an Event of
Default.
17
(c) If, by the terms of this Agreement or the Note, the Borrowers at any time
is
required
or
obligated
to
pay
interest
at
a
rate
in
excess
of
the
maximum
rate
permitted
by
applicable law, the Interest Rate shall be deemed to be immediately reduced to such maximum
rate
and
the
portion
of
all
prior
interest
payments
in
excess
of
such
maximum
rate
shall
be
applied and shall be deemed to have been payments made in reduction of the principal amount
due
hereunder and under the Note.
(d) All amounts of interest due hereunder shall be computed on the basis of
the actual number of days elapsed in a year of 360
days, and in each case shall be payable for the
actual
number
of
days elapsed (including the
first
day but excluding the last day).
(e) The
Adjusted
LIBO
Rate
will
be
determined
by
the
Lender
and
communicated to
the
Borrowers
on
each
LIBOR
Determination
Date,
and
each
such
determination
shall be conclusive absent manifest
error.
Section
5.03. [Reserved.]
Section
5.04. Payments
to be Made.
(a) The Borrowers shall make each payment (including principal of or interest
on
any
Loan
or
any
Non-Use
Fees
or
other
amounts)
hereunder
and
under
any
other
Loan
Document not later than 3:00 p.m., New York City time, on each Payment Date, in immediately
available funds, without setoff, defense or counterclaim (i) in the case of interest, Non-Use Fees
or
Targeted
Principal,
on
the
Payment
Date
that
relates
to
the
Interest
Period
for
which
such
amount is owing, and (ii) in each other case on the date on which such amount is due.
Each such
payment
shall
be
made
to
the
Lender at such place as may be designated from time to time by the
Lender in writing to the Borrowers.
If any payment hereunder or under the Loans becomes due
and payable on a day other than a Business Day, such amount shall be due and payable on the
next succeeding Business Day.
If the date for any payment or prepayment hereunder is extended
by
operation
of
law
or
otherwise,
interest
with
respect
thereto
shall
be
payable
at
the
then-
applicable
Interest Rate during such extension.
(b) Except
as
otherwise
expressly
provided
herein,
whenever
any
payment
(including principal of or interest on any Loan or any Non-Use Fees or other amounts) hereunder
or under any other Loan Document shall become due, or otherwise would occur, on a day that is
not a Business Day, such payment may be made on the next succeeding Business Day, and such
extension of time shall in such case be included in the computation of interest or Non-Use Fees,
if applicable.
Section
5.05. Optional
Prepayments.
The Borrowers may prepay the Loans on
any Business Day, in whole or in part, subject to the requirements of this Section without penalty
or
premium
(except
as
provided
in
Section
5.01(c)),
on
five
days’
prior
written
notice
to
the
Lender, provided that (i)
the principal amount prepaid is at least $1,000,000 (unless otherwise
agreed
to
in
writing
by
the
Lender)
and
(ii)
the
Borrowers
pay
to
the
Lender,
on
the
date
of
prepayment, accrued unpaid interest on the amount so prepaid.
The Borrowers may notify the
Lender in writing that it has elected to terminate the Facility in connection with the prepayment
in
full
of
the
Loans
and
all
other
outstanding
Obligations. Upon
such
prepayment
in
full,
18
together
with
payment
in
full
the
fee
described
in
Section
5.01(c),
and
the
termination
of
the
Facility, the Lender’s interest in the Collateral shall be released in accordance with Section
3.02
and
the
Commitment
of
the
Lender
hereunder shall terminate.
Section
5.06. [Reserved].
Section
5.07. Illegality;
Substituted
Interest
Rate,
etc. Notwithstanding
any
other
provision
hereof,
if
(i)
any
Requirement
of
Law
or
any
change
therein
or
in
the
interpretation or application thereof shall make it unlawful for the Lender to make or maintain
any
Loans
at
the
Interest
Rate
or
(ii) the
Lender
shall
have
determined
(which
determination
shall be conclusive and binding upon the Borrowers) that, by reason of circumstances affecting
the LIBOR interbank market, adequate and reasonable means do not exist for ascertaining the
Interest Rate, then (a) the obligation of the Lender to make or maintain Loans at the Interest Rate
shall
be
suspended
and
the
Lender
shall
promptly
notify
the
Borrowers
thereof
(by
telephone
confirmed in writing) and (b)
each Loan then outstanding, if any, shall, from and including the
commencement of the next Interest Period or at such earlier date as may be required by law, until
payment in full thereof, bear interest at the rate per annum equal to the greater of the Prime Rate
or the Interest Rate in effect on the date immediately preceding the date any event described in
clause (i) or (ii) occurred. If subsequent to such suspension of the obligation of the Lenders to
make or maintain the Loans at the Interest Rate, the circumstances described in clause
(i) or (ii)
of
the
preceding
sentence,
as
applicable,
no
longer
exist,
the
Lender
shall
so
notify
the
Borrowers, and the obligation of the Lender to do so shall be reinstated effective as of the date
the
circumstances
described in clause (i) or
(ii),
as applicable, no longer exist.
Section
5.08. Payments
of Principal
and
Interest;
Mandatory Prepayments.
(a) On each Payment Date, the Borrowers shall pay to the Lender, an amount
equal to the sum of (i) the Targeted Principal, if any, required to be paid on such Payment Date,
(ii) all interest due to be paid on such Payment Date with respect to the related Interest Period,
calculated in accordance with Section 5.02, (iii) all fees and expenses due to be paid on such
Payment Date with respect to the related Interest Period and (iv) all other Obligations due and
payable
on or prior to such Payment
Date.
(b) If
any
Monthly
Settlement
Report
reports
that
a
Borrowing
Base
Deficiency exists as of such date, then the Borrowers shall no later than the next Business Day
following
delivery
of
such
Monthly
Settlement
Report
either
(i)
pay
to
the
Lender
an
amount
equal to the difference of (x) the Outstanding Loans minus (y) the product of (A) the aggregate
Market Value of the Eligible Vehicle Collateral and (B) the Advance Rate on such date or (ii)
pledge additional Eligible Vehicle Collateral under the Security Agreement having an aggregate
Market Value that shall cure such Borrowing Base Deficiency.
If an item of Collateral included
in the Borrowing Base and for which a Loan was advanced fails at any time to be acceptable to
the Lender under the definition of Eligible Vehicle Collateral, as determined by the Lender in its
sole
discretion,
the
Market
Value
of
such
Collateral
as
of
such
date
of
determination
will
be
deemed
to be
zero.
(c) Upon
discovery
by
any
of
the
Borrowers,
the
Servicer/Manager
or
the
Lender
of
a
breach
of
any
of
the
representations
and
warranties
set
forth
in
Section
6.14, the
19
party discovering such breach shall give prompt written notice to the Borrowers and to the other
parties.
If
such
breach
would,
in
and
of
itself,
result
in
a
Borrowing
Base
Deficiency,
which
Borrowing Base Deficiency is not cured by the next Business Day after the Borrowers discovers
or receives notice of such breach, the Borrowers shall, unless such breach shall have been cured
in all material respects, remit to the Lender an amount equal to the amount of such Borrowing
Base Deficiency, in the manner set forth in Section
5.08. The foregoing obligation shall apply to
all
representations
and
warranties
of
the
Borrowers
contained
in
Section
6.14 whether
or
not
Borrower has knowledge of the breach at the time of the breach or at the time the representations
and
warranties
were
made. The
Lender
shall
not
have
any
duty
to
conduct
an
affirmative
investigation
as
to
the
occurrence
of
any
breach
of
any
representations
and
warranties
of
the
Borrowers
set
forth
in
Section
6.14 that
would
require
the
Borrowers
to
remit
any
mandatory
repayment
pursuant to this Section.
Section
5.09. Increased
Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any
reserve, special deposit or similar requirement against assets of, deposits with or for the account
of,
or
credit
extended
by,
the
Lender
(except
any
such
reserve
requirement
reflected
in
the
Adjusted LIBO Rate); or (ii) impose on the Lender or the London interbank market any other
condition affecting this Agreement or Loans made by the Lender; and the result of any of the
foregoing shall be to increase the cost to the Lender of making or maintaining any Loan (or of
maintaining its obligation to make any such Loan) or to reduce the amount of any sum received
or
receivable
by
the
Lender
hereunder
(whether
of
principal,
interest
or
otherwise),
then
the
Borrowers shall, jointly and severally, pay to the Lender such additional amount or amounts as
will
compensate
the Lender
for
such
additional costs
incurred
or
reduction
suffered.
(b) If
the
Lender
determines
that
any
Change
in
Law
regarding
capital
requirements has or would have the effect of reducing the rate of return on the Lender’s capital
or on the capital of the Lender’s holding company, as a consequence of this Agreement or the
Loans
made
by
the
Lender
to
a
level
below
that
which
the
Lender
or
the
Lender’s
holding
company
could
have
achieved
but
for
such
Change
in
Law
(taking
into
consideration
the
Lender’s
policies
and
the
policies
of
the
Lender’s
holding
company
with
respect
to
capital
adequacy), then from time to time the Borrowers shall, jointly and severally, pay to the Lender
such
additional
amount
or
amounts
as
will
compensate
the
Lender
or
the
Lender’s
holding
company
for
any such reduction suffered.
(c) A certificate of the Lender setting forth the amount or amounts necessary
to
compensate
the
Lender
or
its
holding
company,
as
the
case
may
be,
as
specified
in
paragraph
(a) or (b) of this Section and the basis therefor shall be delivered to the Borrowers by
the Lender and shall be conclusive absent manifest error.
The Borrowers shall pay the Lender
the
amount
shown as due on any such certificate
within
30 days after receipt thereof.
(d) Failure
or
delay
on
the
part
of
the
Lender
to
demand
compensation
pursuant
to
this
Section
shall
not
constitute
a
waiver
of
the
Lender’s
right
to
demand
such
compensation;
provided
that
the
Borrowers
shall
not
be
required
to
compensate
the
Lender
pursuant to this Section for any increased costs or reductions incurred more than 90 days prior to
the
date
that
the
Lender
notifies
the
Borrowers
of
the
Change
in
Law
giving
rise
to
such
20
increased
costs
or
reductions
and
of
the
Lender’s
intention
to
claim
compensation
therefor;
provided further that, if the Change in Law giving rise to such increased costs or reductions is
retroactive, then the 90-day period referred to above shall be extended to include the period of
retroactive
effect thereof.
Section
5.10. Taxes.
(a) Any and all payments by or on account of any obligation of the Borrowers
hereunder
or
under
any
other
Loan
Document
shall
be
made
free
and
clear
of
and
without
deduction for any Taxes; provided that if the Borrowers shall be required to deduct any Taxes
from
such
payments,
then
(i)
the
sum
payable
shall
be
increased
as
necessary
so
that
after
making
all
required
deductions
(including
deductions
applicable
to
additional
sums
payable
under this Section) the Lender receives an amount equal to the sum it would have received had
no
such
deductions
been
made,
(ii)
the
Borrowers
shall
make
such
deductions
and
(iii)
the
Borrowers
shall
pay
the
full
amount
deducted
to
the
relevant
Governmental
Authority
in
accordance
with
applicable law.
(b) The
Borrowers
shall,
jointly
and
severally,
shall
indemnify
the
Lender,
within
10
days
after
written
demand
therefor,
for
the
full
amount
of
any
Taxes
paid
by
the
Lender on or with respect to any payment by or on account of any obligation of the Borrowers
hereunder
or
under
any
other
Loan
Document
(including
Taxes
imposed
or
asserted
on
or
attributable
to
amounts
payable
under
this
Section)
and
any
penalties,
interest
and
reasonable
expenses arising therefrom or with respect thereto, whether or not such Taxes were correctly or
legally
imposed
or
asserted
by
the
relevant
Governmental
Authority. A
certificate
as
to
the
amount of such payment delivered to the Borrowers by the Lender, shall be conclusive absent
manifest
error.
(c) As soon as practicable after any payment of Taxes by the Borrowers to a
Governmental
Authority,
the
Borrowers
shall
deliver
to
the
Lender
the
original
or
a
certified
copy
of a
receipt issued by such Governmental
Authority evidencing such payment,
a
copy of the
return reporting such payment or other evidence of such payment reasonably satisfactory to the
Lender.
(d) If
the Lender determines, in its
sole discretion,
that it has received a
refund
of any Taxes as to which it has been indemnified by the Borrowers pursuant to this Section 5.10,
it
shall
pay
over
such
refund
to
the
Borrowers
(but
only
to
the
extent
of
indemnity
payments
made
by
the
Borrowers
under
this
Section
5.10
with
respect
to
the
Taxes
giving
rise
to
such
refund), net of all reasonable out-of-pocket expenses of the Lender and without interest (other
than
any
interest
paid
by
the
relevant
Governmental
Authority
with
respect
to
such
refund);
provided,
however,
that
the
Borrowers,
upon
the
request
of
the
Lender,
agrees
to
repay
the
amount paid over to the Borrowers (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to the Lender in the event the Lender is required to repay such
refund to such Governmental Authority.
Nothing contained in this Section 5.10 shall require the
Lender to make available its tax returns (or any other information relating to its Taxes which it
deems
confidential)
to the Borrowers or any other Person.
21
(e) Without prejudice to the survival of any other agreement of the Borrowers
hereunder, the agreements and obligations of the Borrowers contained in this Section
5.10 shall
urvive
the termination
of this
Agreement.
ARTICLE
VI
REPRESENTATIONS AND WARRANTIES
Each
of
the Loan Parties represents
and
warrants to the Lender
that:
Section
6.01. Organization;
Powers.
Each of the Loan Parties is duly
organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, has all
requisite corporate power and authority to carry on its business as now
conducted and, except
where the failure to do so, individually or in the aggregate, could not
reasonably be expected to
result
in
a
Material
Adverse
Effect,
is
qualified
to
do
business
in,
and
is
in
good
standing
in,
every
jurisdiction
where such qualification
is required.
Section
6.02. Authorization;
Enforceability.
The Transactions to be entered into
by each Loan Party are within such Loan Party’s corporate or individual, as the case may be,
powers. The Transactions to be entered into by each Loan Party have been duly authorized by all
necessary corporate and, if required, stockholder action.
This Agreement has been duly executed
and delivered by each Loan Party and constitutes, and each other Loan Document to which any
Loan Party is to be a party, when executed and delivered by such Loan Party, will constitute, a
legal,
valid
and
binding
obligation
of
such
Loan
Party
(as
the
case
may
be),
enforceable
in
accordance
with
its
terms,
subject
to
applicable
bankruptcy,
insolvency,
reorganization,
moratorium or other laws affecting creditors’ rights generally and subject to general principles of
equity,
regardless of whether considered in
a
proceeding in equity or at law.
Section
6.03. Governmental
Approvals;
No
Conflicts.
The Transactions (a) do
not require any consent or approval of, registration or filing with, or any other action by, any
Governmental Authority, except such as have been obtained or made and are in full force and
effect and except filings necessary to perfect Liens created under the Security Documents, (b)
will not violate any applicable law or regulation or the charter, by-laws or other organizational
documents of any Loan Party or any order of any Governmental Authority, (c) will not violate or
result in a default under any indenture, agreement or other instrument evidencing or governing
any material indebtedness or any other material indenture, agreement or other instrument binding
upon any Loan Party or its assets, or give rise to a right thereunder to require any payment to be
made by any Loan Party, and (d) will not result in the creation or imposition of any Lien on any
asset
of
any Loan Party, except Liens created
under
the Security Documents.
Section
6.04. Financial
Condition;
No
Material
Adverse Change.
(a) UHI has heretofore furnished to the Lender the consolidated balance sheet
and statements of income, equity and cash flows of AMERCO as of and for the fiscal year ended
March
31,
2004,
and
the
consolidated
balance
sheet
and
statements
of
income,
stockholders
equity and cash flows of AMERCO as of and for the fiscal quarter ended December 31, 2004,
22
each certified by a Financial Officer of UHI or AMERCO.
Such financial statements present
fairly, in all material respects, the financial position and results of operations and cash flows of
AMERCO as of such dates and for such periods in accordance with GAAP, subject to year end
audit
adjustments. As
of
the
date
hereof,
no
Loan
Party
has
any
liabilities
in
excess
of
$25,000,000
except as
disclosed on Schedule
6.04.
(b) Since March 31, 2005, there has been no material adverse change in the
business, condition (financial or otherwise), operations, performance or properties of AMERCO,
UHI
or
the Borrowers.
Section
6.05. Properties;
Liens and Licenses.
(a) Each of the Loan Parties has good title to, or valid leasehold interests in,
or licenses of or easements for all the real and personal property material to its business, except
for minor defects in title that do not interfere with its ability to conduct its business as currently
conducted or to utilize such properties for their intended purposes, and none of such property is
subject
to
any
Lien
other than
Permitted
Encumbrances.
(b) Each of the Loan Parties owns, or is licensed to use, all trademarks, trade
names,
copyrights,
patents
and
other
intellectual property
material
to
its
business,
and
the
use
thereof by the Loan Parties does not infringe upon the rights of any other Person, except for any
such
infringements
that,
individually
or
in
the aggregate,
could
not
reasonably
be
expected
to
result
in
a Material
Adverse Effect.
(c) Each of the Loan Parties has all licenses and permits that are material to
the business of such Loan Party.
Each license or permit that is material to the business of the
Loan Parties, is valid and in full force and effect, and each of the Loan Parties is in compliance
in
all
material
respects
with
the
terms
and
conditions thereof.
Section
6.06. Litigation
Matters.
There are no actions, suits or proceedings by or
before
any
arbitrator
or
Governmental
Authority
pending
against
or,
to
the
knowledge
of
any
Loan Party, threatened against or affecting the Loan Parties (i) as to which there is a reasonable
possibility
of
an
adverse
determination
and
that,
if
adversely
determined,
could
reasonably
be
expected,
individually
or
in
the
aggregate,
to
result
in
a
Material
Adverse
Effect
or
(ii)
that
involve
any of the Loan Documents
or
the Transactions.
Section
6.07. Compliance
with
Laws
and Agreements.
Each of the Loan Parties
is in compliance with all laws, regulations and orders of any Governmental Authority applicable
to it or its property and all indentures, agreements and other instruments binding upon it or its
property, except where the failure to do so, individually or in the aggregate, could not reasonably
be
expected to result in a Material
Adverse Effect. No Default has occurred and is continuing.
Section
6.08. Investment
and
Holding
Company
Status. None
of
the
Loan
Parties
is
(a)
an
“investment
company”
as
defined
in,
or
subject
to
regulation
under,
the
Investment
Company
Act
of
1940
or
(b)
a
“holding
company”
as
defined
in,
or
subject
to
regulation
under, the Public Utility
Holding Company Act of 1935.
23
Section
6.09. Taxes.
Each of the Loan Parties has timely filed or caused to be
filed all Tax returns and reports required to have been filed and has paid or caused to be paid all
Taxes required to have been paid by it, except (a) Taxes that are being contested in good faith by
appropriate
proceedings
and
for
which
the
applicable
Loan
Party
has
set
aside
on
its
books
adequate reserves or (b) the filing of local Tax returns and reports to the extent that the failure to
do so, individually or in the aggregate, could not reasonably be expected to result in a Material
Adverse
Effect.
Section
6.10. ERISA.
Each Plan has been administered in compliance with all
applicable laws except for such instances of noncompliance as have not resulted in and could not
reasonably be expected to result in a Material Adverse Effect.
No ERISA Event has occurred or
is reasonably expected to occur that, when taken together with all other such ERISA Events for
which
liability
is
reasonably
expected
to
occur,
could
reasonably
be
expected
to
result
in
a
Material Adverse Effect.
The present value of all accumulated benefit obligations under each
Plan
(based
on
the
assumptions
used
for
purposes
of
Statement
of
Financial
Accounting
Standards No. 87) did not, as of the date of the most recent financial statements of AMERCO
reflecting such amounts, exceed the fair market value of the assets of such Plan, and the present
value of all accumulated benefit obligations of all underfunded Plans (based on the assumptions
used for purposes of Statement of Financial Accounting Standards No. 87) did not, as of the date
of
the
most
recent
financial
statements
of
AMERCO
reflecting
such
amounts,
exceed
the
fair
market
value of the assets of all such underfunded Plans.
Section
6.11. Disclosure.
Each of the Loan Parties has disclosed to the Lender
all agreements, instruments and corporate or other restrictions to which any of
the Loan Parties is
subject that, individually or in the aggregate, could reasonably be expected to result in a Material
Adverse
Effect. None
of
the
reports,
financial
statements,
certificates
or
other
information
furnished by or on behalf of any Loan Party to the Lender in connection with the negotiation of
this Agreement or any other Loan Document or delivered hereunder or thereunder, including any
Monthly
Settlement
Report,
contains
any
material
misstatement
of
fact
or
omits
to
state
any
material
fact
necessary
to
make
the
statements
therein,
taken
as
a
whole,
in
the
light
of
the
circumstances
under
which
they
were
made,
not
misleading;
provided
that,
with
respect
to
projected financial information, each of the Loan Parties represents only that such information
was
prepared in good faith based upon assumptions
believed to be reasonable at the time.
Section
6.12. The
Collateral.
The
Collateral
is
owned
by
the
Person
granting
each security interest in such Collateral under any Security Document, free and clear of any Lien
or
other
adverse
claim
except
as
contemplated
under
the
Loan
Documents. Each
of
the
representations
and
warranties
of
the
Loan
Parties
contained
herein
are
true
and
correct.
No
agreements have been executed and delivered pursuant to which a Person pledges or grants, or
purports to pledge or grant, any Lien, other than Permitted Encumbrances, on the Collateral to
ny
Person
other than the Lender.
With
respect
to
the
Borrowers,
the
Security
Agreement
is
effective
to
create
in
favor of the Lender, a legal, valid
and enforceable security interest in the Collateral and, upon the
filing of the necessary financing statements in the offices specified in the Security Agreement, or
the filing of liens on Vehicles in the offices specified in the Security Agreement, as applicable,
the interest of the Lender in the Collateral will be perfected under Article 9 of the UCC or the
24
applicable state motor vehicle law, as applicable, prior to and enforceable against all creditors of
and purchasers from the Borrowers and all other Persons whatsoever (other than the Lender and
its
successors
and
assigns). On
or
prior
to
the
date
each
Loan
is
made
hereunder
and
each
recomputation of the Borrowing Base, all financing statements and other documents required to
be recorded or filed in order to perfect and protect the Lender’s interests in the Collateral against
all creditors of and purchasers from the Borrowers and all other Persons whatsoever will have
been duly filed in each filing office necessary for such purpose and all filing fees and taxes, if
any,
payable in
connection with such filings
shall have been paid
in
full.
Section
6.13. Liens
on
the
Collateral.
Effective immediately upon the Closing
Date, (a) no effective financing statement or other similar instrument covering any Collateral is
on file in any recording office, and (b) no Lien covering any Vehicle constituting Collateral is
noted on the Certificate of Title of such Vehicle or on file in any title recording office, in each
case
other than in favor of the Lender.
Section
6.14. Eligible
Vehicle
Collateral. As
of
the
date
of
each
Borrowing
Request,
all
Vehicles
set
forth
in
the
Vehicle
Schedule
to
be
delivered
with
each
Borrowing
Request
are Eligible
Vehicle
Collateral.
Section
6.15. Insurance.
Schedule
6.15 sets forth a description of all insurance
maintained by or on behalf of the Loan Parties as of the date of this Agreement including all
policies covering the Collateral.
As of the date of this Agreement, all premiums in respect of
such
insurance have been paid.
Section
6.16. Labor
Matters.
As of the date hereof, there are no strikes, lockouts
or slowdowns against any Loan Party pending or, to the knowledge of any of the Loan Parties,
threatened.
The hours worked by and payments made to employees of the Loan Parties have not
been in violation of the Fair Labor Standards Act or any other applicable Federal, state, local or
foreign law dealing with such matters.
All payments due from any Loan Party, or for which any
claim
may
be
made
against
any
Loan
Party,
on
account
of
wages
and
employee
health
and
welfare insurance and other benefits, have been paid or accrued as a liability on the books of the
applicable Loan Party.
The consummation of the Transactions will not give rise to any right of
termination
or
right
of
renegotiation
on
the
part
of
any
union
under
any
collective
bargaining
agreement
to
which any Loan Party is bound.
Section
6.17. Security
Documents.
The
representations
and
warranties
in
each
Security
Document
are
true and correct.
Section
6.18. Margin
Regulations. No
proceeds
of
any
Loan
will
be
used,
directly or indirectly, by the Loan Parties for the purpose of purchasing or carrying any Margin
Stock or for the purpose of reducing or retiring any Indebtedness which was originally incurred
to purchase or carry Margin Stock. No part of the proceeds of any Loan will be used, whether
directly or indirectly, and whether immediately, incidentally or ultimately, for any purpose that
entails a violation of, or that is inconsistent with, the provisions of the Regulations of the Board,
including
Regulation T, U or X.
25
ARTICLE VII
CONDITIONS
Section
7.01. Effective
Date.
This Agreement shall become effective on the date
on
which
each
of
the
following
conditions
is
satisfied
(or
waived
in
accordance
with
Section
12.02):
(a) The
Lender
shall
have
received
from
each
party
hereto
either
(i)
a
counterpart of this Agreement signed on behalf of such party or (ii) written evidence satisfactory
to
the
Lender
(which
may
include
telecopy
transmission
of
a
signed
signature
page
of
this
Agreement)
that
such party has signed a counterpart of this Agreement.
(b) The
Lender
shall
be
satisfied
that
all
fees
and
other
amounts
due
and
payable to them hereunder on or prior to the Effective Date, including, to the extent invoiced,
reimbursement or payment of all legal fees and expenses and all other expenses required to be
reimbursed or paid by the Loan Parties hereunder or under any other Loan Document, have been
paid
or
will be paid on the Effective Date.
(c) The Lender shall have received counterparts of the Fee Letter signed on
behalf
of each Loan Party thereto.
(d) The Lender shall have received (i) counterparts of the Security Documents
(other
than
Certificates
of Title)
signed
on
behalf of the
Loan
Party that is a party thereto,
and (ii) evidence satisfactory to the Lender that all documents and instruments, including UCC financing
statements
(including
any
amendments
to
such
financing
statements)
and
Certificates
of
Title
with respect to all Vehicles constituting Collateral, required by law or reasonably requested by
the Lender to be filed, registered or recorded to create or perfect the Liens intended to be created
under the Security Documents, and to protect the ownership interests of the Borrowers in (and
the
Liens
of the
Security
Documents
on)
all Collateral,
have
been so filed, registered
or recorded.
(e) The
Lender
shall
have
received
a
new
original
Note,
executed
and
delivered by the Borrowers.
The Lender shall notify the Borrowers of the Effective Date, and such notice shall be conclusive
and
binding. Notwithstanding
the
foregoing,
the
obligations
of
the
Lender
to
make
Loans
hereunder
shall
not
become
effective
unless
each
of
the
foregoing
conditions
is
satisfied
(or
waived pursuant to Section 12.02) at or prior to 3:00 p.m., New York City time, on March 12,
2007 (and, in the event such conditions are not so satisfied or waived, the Facility shall terminate
at
such
time).
Section
7.02. Each
Loan.
The
obligation of the Lender to make
a
Loan is subject
to
the
satisfaction
of the
following
conditions:
(a) At
the
time
of
and
immediately
after
giving
effect
to
such
Loan,
the
representations and warranties of the Loan Parties set forth in this Agreement and the other Loan
Documents shall be true and correct in all respects on and as of the date of such Loan (or, in the
26
case of any representation and warranty that expressly relates
to an earlier date, on and as of such
earlier date).
(b) At
the
time
of
and
immediately
after
giving
effect
to
such
Loan
no
Default,
Event of Default or Borrowing Base Deficiency
shall have occurred and be continuing.
(c) No
Material Adverse Change shall have occurred.
(d) The Borrowers shall have delivered to the Lender (i)
a Borrowing Request
and a Borrowing Base Certificate, calculated as of a date not more recent than two (2) Business
Days prior to the date of the related Borrowing Request, in connection with such Loan showing
no Borrowing Base Deficiency and (ii)
a certificate of the type required by Section 4.02(b), if
applicable.
Each Loan shall be deemed to constitute a representation and warranty by the Borrowers on the
date
thereof as to the
matters
specified
in paragraphs (a), (b), (c) and (d) of this Section 7.02.
ARTICLE VIII
AFFIRMATIVE
COVENANTS
Until the Commitments have expired or been terminated and the principal of and
interest on each Loan and all fees and other amounts payable hereunder shall have been paid in
full,
each of the Loan Parties covenants
and
agrees with the Lender
that:
Section
8.01. Financial
Statements
and
Other
Information. The
Loan
Parties
shall furnish to
the
Lender:
(a) within 90 days after the end of each fiscal year of AMERCO, the audited
consolidated
balance
sheet
of
AMERCO
(or,
if
any
of
the
Loan
Parties
shall
cease
to
be
consolidated
with
AMERCO
for
financial
accounting
purposes,
of
each
such
Loan
Party,
as
applicable) and its consolidated subsidiaries and related statements of operations, stockholders’
equity and cash flows as of the end of
and for such year, setting forth in
each case in
comparative
form
the
figures
for
the
previous
fiscal
year,
all
reported
on
by
BDO
Xxxxxxx,
LLP
or
other
independent public accountants of recognized national standing (without a “going concern” or
like qualification or exception and without any qualification or exception as to the scope of such
audit)
to
the
effect
that
such
financial
statements
present
fairly
in
all
material
respects
the
financial condition and results of operations of AMERCO (or, if any of the Loan Parties shall
cease to be consolidated with AMERCO for financial accounting purposes, of each such Loan
Party, as applicable) and its consolidated subsidiaries on a consolidated basis in accordance with
GAAP
consistently applied;
(b) within
45
days
after
the
end
of
each
of
the
first
three
fiscal
quarters
of
each
fiscal
year
of
AMERCO,
the
consolidated
balance
sheet
of
AMERCO
(or,
if
any
of
the
Loan Parties shall cease to be consolidated with AMERCO for financial accounting purposes, of
each such Loan Party, as applicable) and related statements of operations and cash flows as of
the end of and for such fiscal quarter and the then elapsed portion of the fiscal year, setting forth
in each
case in comparative form the figures for the corresponding period
or periods of
(or, in the
27
case of the balance sheet, as of the end of) the previous fiscal year, all certified by one of its
Financial Officers as presenting fairly in all material respects the financial condition and results
of
operations
of
AMERCO
(or,
if
any
of
the
Loan Parties shall cease to be consolidated with
AMERCO
for
financial
accounting
purposes,
of
each
such
Loan
Party,
as
applicable)
and
its
consolidated subsidiaries on a consolidated basis in accordance with GAAP consistently applied,
subject
to
normal
year-end audit adjustments
and
the absence of footnotes;
(c) concurrently
with
any
delivery
of
AMERCO’s (or
a
Loan
Party’s,
as
applicable)
financial statements
under clause (a)
and
(b) above, a certificate
of
a Financial
Officer of each of the Loan Parties (i) certifying as to whether a Default has occurred and, if a
Default has occurred, specifying the details thereof and any action taken or proposed to be taken
ith respect thereto and (ii) stating whether any change in GAAP or in the application thereof
that
materially
affects
AMERCO’s
(or
a
Loan
Party’s,
as
applicable)
consolidated
financial
statements accompanying such certificate (it being understood that any change that would affect
compliance
with
any
covenant
set
forth
herein
or
the
Applicable
Rate
shall
be
considered
material) has occurred since the date of AMERCO’s (or a Loan Party’s, as applicable) audited
financial statements referred to in Section 6.04 and, if any such change has occurred, specifying
the
effect of such change on the financial
statements
accompanying
such certificate;
(d) concurrently
with
any
delivery
of
financial
statements
under
clause
(a)
above,
a
certificate
of
the
accounting
firm
that
reported
on
such
financial
statements
stating
whether
they obtained knowledge during the course of
their
examination
of such financial
statements of any Default (which certificate may be limited to the extent required by accounting
rules
or
guidelines);
(e) promptly after the same become publicly available, copies of all periodic
and other reports, proxy statements and other materials filed by AMERCO or any Loan Party
with
the
Securities
and
Exchange
Commission,
or
any
Governmental
Authority
succeeding
to
any
or
all
of
the
functions
of
said
Commission,
or
with
any
national
securities
exchange,
or
financial information or other material information distributed by AMERCO or any Loan Party
to
its
stockholders generally, as the case may
be;
(f) promptly following any request therefor, such other information regarding
the
operations,
business
affairs
and
financial
condition
of
AMERCO
or
any
Loan
Party,
or
compliance
with the terms
of any
Loan Document,
as
the Lender may
reasonably request; and
(g) on a quarterly basis, a report of the name and location of all Persons that
rent Vehicles on behalf of the Borrowers and their Affiliates in the ordinary course of business
pursuant
to a Dealership Contract, as
of the
date of such report.
Section
8.02. Notices
of Material
Events.
(a) Each Loan Party shall furnish to the Lender written notice of the following
promptly
upon
obtaining knowledge thereof:
(i) the
occurrence
of any
Default;
28
(ii) the
filing
or
commencement
of
any
action,
suit
or
proceeding
by
or
before any arbitrator or Governmental Authority against or affecting any Loan Party or
any Affiliate thereof that, if adversely determined, could reasonably be expected to result
in
a
Material Adverse Effect; and
(iii) any other development that results in, or could reasonably be expected
to
result
in, a
Material
Adverse Effect.
(b) Each
notice
delivered
under
this
Section
shall
be
accompanied
by
a
statement of a Financial Officer or other executive
officer of any of the Loan Parties setting forth
the details of the event or development requiring such notice and any action taken or proposed to
be
taken
with respect thereto.
Section
8.03. Information
Regarding
Collateral.
Each of the Loan Parties shall
furnish to the Lender prompt written notice of any change
(i) in corporate name of the Borrowers
or
in
any
trade
name
used
to
identify
any
Loan
Party
in
the
conduct
of
its
business
or
in
the
ownership
of
its
properties,
(ii)
in
the
jurisdiction
where
any
Loan
Party
is
located
for
the
purposes of the UCC, or any Vehicle constituting Collateral has been titled with the applicable
state
agency
or
department,
or
in
which
all
UCC
financing
statements
and
other
appropriate
filings, recordings or registrations, containing a description of the Collateral have been filed of
record
in
each
governmental,
municipal
or
other
appropriate
office
in
such
jurisdiction
to
the
extent
necessary
to
perfect
the
security
interests
under
the
Security
Documents,
(iii)
in
the
identity or corporate structure of any Loan Party or (iv) in the Federal Taxpayer Identification
Number of any Loan Party.
No Loan Party shall effect or permit any change referred to in the
preceding
sentence
unless
all
filings
have
been
made
under
the
UCC
or
otherwise
that
are
required in order for the Lender to continue at all times following such change to have a valid,
legal
and
perfected
security
interest
in all
the Collateral.
Section
8.04. Existence;
Conduct
of
Business. Each
Loan
Party
shall
do
or
cause to be done all things necessary to preserve,
renew and keep in full force and effect its legal
existence and the rights, licenses, permits, privileges and franchises material to the conduct of its
business.
Section
8.05. Payment
of
Obligations. Each
Loan
Party
shall
pay
its
Indebtedness
and
other
obligations,
including
Tax
liabilities,
before
the
same
shall
become
delinquent
or
in
default,
except
where
(i)
the
validity
or
amount
thereof
is
being
contested
in
good faith by appropriate proceedings, (ii) such Loan Party has set aside on its books adequate
reserves with respect thereto in accordance with GAAP, (iii) such contest effectively suspends
collection of the contested obligation and the enforcement of any Lien securing such obligation
and (iv) the failure to make payment pending the resolution of such contest could not reasonably
be
expected to result
in a
Material Adverse Effect.
Section
8.06. Maintenance
of
Properties. Each
Loan
Party
shall
keep
and
maintain
all
Collateral,
and
all
other
property
material
to
the
conduct
of
its
business
in
good
working
order and condition, ordinary wear and tear excepted.
29
Section
8.07. Insurance.
The Loan Parties shall, at their own expense, maintain
at all times and keep in full force and
effect policies of
insurance with respect to the properties of
the
Loan
Parties
constituting
Collateral,
including
general
and
vicarious
liability
insurance
(including bodily injury coverage) related to the Vehicles (updated from time to time to reflect
any changes to the Vehicles constituting Collateral) in such amounts, against such risks and with
such terms (including deductibles, limits of liability and loss payment provisions) as are required
by applicable law and consistent with industry standards.
All such insurance policies shall be in
form,
substance
and
insured
amount
satisfactory
to
the
Lender,
with
standard
coverage
and
subject to deductibles and with reputable insurance companies, as may be reasonably required by
the Lender.
If the Lender shall determine that a Material Adverse Change has occurred or if an
Event
of
Default
shall
have
occurred,
then
within
five
Business
Days
after
delivery
by
the
Lender to the Borrowers of a written request therefor, the Borrowers shall cause the Lender to be
named
as an
additional insured under
all
such insurance policies.
Section
8.08. Books
and
Records;
Inspection
Rights. Each
Loan
Party
shall
keep proper books of record and account in which full, true and correct entries are made of all
Collateral and transactions contemplated by this Agreement.
Each Loan Party shall permit any
representatives
designated
by
the
Lender,
at
the
Borrowers’
expense,
upon
reasonable
prior
notice,
to
visit
and
inspect
its
properties,
to
examine
and
make
extracts
from
its
books
and
records,
and
to
discuss
its
affairs,
finances
and
condition
with
its
officers
and
independent
accountants,
all
at
such
reasonable
times
and
as
often
as
reasonably
requested. Any
such
inspection
shall
be
subject to the confidentiality
restrictions set
forth
in Section
12.12.
Section
8.09. Compliance
with
Laws
and
Agreements.
Each
Loan
Party
shall
comply
with
all
laws,
rules,
regulations
and
orders
of
any
Governmental
Authority
(including
ERISA)
applicable
to
it
or
its
property
and
all
indentures,
agreements
and
other
instruments
binding upon it or its property, except where the failure to do so, individually or in the aggregate,
could
not
reasonably be expected
to result in a
Material
Adverse Effect.
Section
8.10. Use
of
Proceeds.
The proceeds of the Loans shall be used solely
for
working
capital
purposes
or
to
satisfy
the
Borrowers’
obligations
under
the
pre-existing
indebtedness.
Section
8.11. Further
Assurances.
Each Loan Party shall, and shall cause each
other
Loan Party to, execute any and all further documents,
financing
statements,
agreements
and
instruments,
and
take
all
such
further
actions
(including
the
filing
and
recording
of
financing
statements,
Certificates
of
Title
and
other
documents),
which
may
be
required
under
any
applicable
law,
or
which
the
Lender
may
reasonably
request,
to
effectuate
the
transactions
contemplated by the Loan Documents or to grant, preserve, protect or perfect the Liens created
or intended to be created by the Security Documents or the validity or priority of any such Lien,
all at the expense of the Loan Parties.
Each Loan Party also agrees to provide to the Lender,
upon request, evidence reasonably satisfactory to the Lender as to the perfection and priority of
the
Liens
created or
intended to be created
by the
Security Documents.
Section 8.12. Casualty.
30
(a) Each Loan Party shall furnish to the Lender prompt notice of any casualty
or
other
damage
to
any
portion
of
the
Collateral
having
a
value
in
excess
of
$25,000
or
the
commencement of any action or proceeding for the taking
of any Collateral or any part thereof or
interest
therein by condemnation or similar
proceeding.
(b) If
any
event
described
in
paragraph
(a)
of
this
Section
results
in
Net
Proceeds (whether in the form of insurance proceeds, or otherwise), the Lender is authorized to
collect such Net Proceeds and, if received by a Loan Party, such Net Proceeds shall be paid to
the Lender. All such Net Proceeds retained by or paid over to the Lender shall be held by the
Lender and released from time to time to pay the costs of repairing, restoring or replacing the
affected property in accordance with the terms of this Agreement and the applicable provisions
of
the
Security
Documents, subject
to
the
provisions
of
the
Security
Documents
regarding
application
of such Net Proceeds during
a
Default
or an
Event of Default.
(c) If any Net Proceeds retained by the Lender as provided above continue to
be held by the Lender on the date that any prepayment is due pursuant to Section
5.08 in respect
of the event resulting in such Net Proceeds, then such Net Proceeds shall be applied to prepay
Loans
as
provided in Section 5.08.
Section
8.13. Interest
Rate
Protection. The
Borrowers
agree
to
consult
from
time
to
time
with
the
Lender
regarding
the
advisability
of
entering
into
swaps,
caps
or
other
interest rate hedging agreements to limit the Borrowers’ exposure to interest payable under this
Agreement
to
develop a hedging strategy mutually
agreeable
to the
Borrowers
and
the Lender.
ARTICLE
IX
NEGATIVE COVENANTS
Until
the
Commitments
have
expired
or
terminated
and
the
principal
of
and
interest on each Loan and all fees payable hereunder have been paid in full, each of the Loan
Parties
covenants and agrees with the Lender
that:
Section
9.01. Change
in
Control.
Neither AMERCO nor any Loan Party shall
permit, consent to or acquiesce to any Change in Control without the prior written consent of
Lender.
Section
9.02. Use
of Collateral.
(a) Except as otherwise provided in clause (b) of this Section 9.02, no Loan
Party shall permit any tangible asset constituting Collateral to be located (i)
outside the United
States
or
Canada,
(ii)
outside
the
possession
of
the
Borrowers
or
its
Affiliates,
except,
with
respect to Vehicles, when (A)
consigned to the possession of a third party dealer pursuant to a
Dealership Contract rented to consumers in the ordinary course of Borrower’s business or, (B)
in
transit to such locations, or (C)
in transit to a
third party purchaser who will become obligated on
a receivable upon receipt, (iii) on any property not owned by the Borrowers, except, with respect
to
Vehicles, when rented in the ordinary course of Borrower’s
business.
31
(b) This Section 9.02 shall not be construed to prohibit (i) the return of any
asset
constituting
Collateral
to
the
vendor
thereof
or
to
third
parties
for
repairs,
services,
modifications or other similar purposes or (ii) the storage of any asset constituting Collateral in
any
warehouse or similar
facility.
Section
9.03. Negative
Pledge. No
Loan
Party
shall,
directly
or
indirectly,
create,
incur,
assume
or
suffer
to
exist
any
Lien
upon
any
Collateral,
except
for
Permitted
Encumbrances.
Section
9.04. Limitations
on
Fundamental
Changes. No
Loan
Party
shall,
directly or indirectly, enter into any merger, consolidation or amalgamation, or liquidate, wind
up
or
dissolve
itself
(or
suffer
any
liquidation
or
dissolution),
or
convey,
sell,
lease,
assign,
transfer
or otherwise dispose of, all
or
substantially
all
of its
property, business or assets, or make
any
material
change in its present method
of
conducting business, except:
(a) any
Subsidiary
of
a
Loan
Party
may
be
merged
or
consolidated
with
or
into
such
Loan
Party
(provided
that
such
Loan
Party
shall
be
the
continuing
or
surviving
corporation); or
(b) any merger, consolidation or amalgamation, or liquidation, winding up or
dissolution that would not reasonably be expected (i) to materially and adversely affect the rights
of
the
Lender hereunder, or (ii) to have
a
Material Adverse Effect.
ARTICLE X
EVENTS
OF
DEFAULT
Section
10.01. Events
of
Default. An
“Event
of
Default”
shall
mean
the
occurrence and continuation of one or more of
the
following events or conditions:
(a) the Borrowers, the Guarantor or the Servicer/Manager shall fail to pay any
principal of or interest (including any Borrowing Base Deficiency pursuant to Article V) on any
Loan or any fee or any other amount payable under this Agreement, within one Business Day of
when same shall become due and payable, whether at the due date thereof or at a date fixed for
prepayment
thereof or otherwise;
(b) any representation or warranty made or deemed made by or on behalf of
any Loan Party in or in connection with any Loan Document or any amendment or modification
thereof or waiver thereunder, or in any report, certificate, financial statement or other document
furnished
pursuant
to
or
in
connection
with
any
Loan
Document
or
any
amendment
or
modification thereof or waiver thereunder, shall prove to have been incorrect in any respect (or,
in
the
case
of any
representation
or warranty that is not qualified as to materiality,
in
any material
respect) when made or deemed made;
(c) any Loan Party shall fail to observe or perform any covenant, condition or
agreement contained in any Loan Document, and such failure shall continue unremedied for a
period
of
30 days after notice thereof
from the
Lender to the Borrowers;
32
(d) any
Loan
Party
shall
fail
to
make
any
payment
(whether
of
principal
or
interest and regardless of amount) in respect of any material Indebtedness, when
and as the same
shall become
due
and
payable
(after
giving
effect
to
any
period
of
grace
expressly
applicable
thereto);
(e) any
event
or
condition
occurs
that
results
in
any
material
Indebtedness
becoming due prior to its scheduled maturity or that enables or permits (after giving effect to any
period of grace expressly applicable thereto) the holder or holders of any material Indebtedness
or any trustee or agent on its or their behalf to
cause any material indebtedness to become due, or
to require the prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled
maturity; provided that this clause (f) shall not apply to secured Indebtedness that becomes due
as
a
result of the
voluntary sale or transfer of the property or assets
securing such Indebtedness;
(f) an involuntary proceeding shall be commenced or an involuntary petition
shall be filed seeking (i) liquidation, reorganization or other relief in respect of AMERCO, UHI
or any of the Borrowers, or its debts, or of a substantial part of its assets, under any Federal, state
or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in effect or (ii)
the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for
AMERCO, UHI or any of the Borrowers, or for a substantial part of its assets, and, in any such
case, such proceeding or petition shall continue undismissed for 60 days or an order or decree
approving
or ordering any of the
foregoing shall be entered;
(g) AMERCO, UHI or any of the Borrowers shall (i) voluntarily commence
any proceeding or file any petition seeking liquidation, reorganization or other relief under any
Federal, state or foreign bankruptcy, insolvency, receivership or similar law now or hereafter in
effect, (ii) consent to the institution of, or fail to contest in a timely and appropriate manner, any
proceeding
or
petition
described
in
clause
(g)
of
this
Article,
(iii)
apply
for
or
consent
to
the
appointment
of
a
receiver,
trustee,
custodian,
sequestrator,
conservator
or
similar
official
for
AMERCO, UHI or any of the Borrowers or for a substantial part of its assets, (iv) file an answer
admitting the material allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors or (vi) take any action for the purpose of effecting
any
of
the foregoing;
(h) AMERCO,
UHI
or
any
of
the
Borrowers
shall
become
unable,
admit
in
writing
its inability
or fail
generally to
pay
its debts as they become
due;
(i) one or more judgments or decrees shall be entered against any Loan Party
involving in the aggregate a liability (not paid or fully covered by insurance) of $5,000,000 or
more,
and
all
such
judgments
or
decrees
shall
not
have
been
vacated,
discharged,
stayed
or
bonded
pending appeal within 60 days from the
entry
thereof;
(j) any Lien on any material portion of the Collateral purported to be created
under
the
Security
Documents
shall
cease
to
be,
or
shall
be
asserted
by
UHI
or
any
of
the
Borrowers not to be, a valid and perfected Lien on any Collateral, with the priority required by
the Security Documents and that could individually or in the aggregate have a material adverse
effect
on
the
Collateral
or
the
interests
of
the
Lender
under
the
Loan Documents,
except
as
a
33
result of the sale or other disposition of the applicable Collateral in a transaction permitted under
the
Loan
Documents;
(k) the Guarantee Agreement shall cease to be in full force and effect, or the
Guarantor
shall
make
an
assertion
to
such effect in any judicial proceeding;
(l) an
ERISA
Event
that
when
taken
together
with
all
other
ERISA
Events
that
have
occurred, could reasonably be expected to
result
in a
Material
Adverse
Effect.
Section
10.02. Consequences
of
an
Event
of
Default. If
an
Event
of
Default
specified in Section 10.01 hereof shall occur and be continuing, then, and in every such event
(other
than
an
event
with
respect
to
the
Borrowers
described
in
clause
(g)
or
(h)
of
Section
10.01), upon
notice
from
the
Lender
to
the
Borrowers,
the
Facility
provided
by
this
Agreement shall immediately terminate, and the Outstanding Loans, together with accrued and
unpaid interest thereon, and all other Obligations, shall immediately become due and payable,
without presentment, demand, protest or other notice of any kind, all of which are hereby waived
by the Borrowers; and in case of any event with respect to the Borrowers described in clause (g)
or
(h)
of
Section
10.01,
the
Facility
provided
by
this
Agreement
shall
automatically
and
immediately
terminate,
and
the
Outstanding
Loans,
together
with
accrued
and
unpaid
interest
thereon,
and
all
other
Obligations,
shall
immediately
become
due
and
payable,
without
presentment, demand, protest or other notice of any kind, all of which are hereby waived by the
Borrowers.
Further, if an Event of Default specified in Section 10.01 hereof shall occur and be
continuing,
then,
and
in
every
such
event
the
Lender
shall
have
the
right
to
collect,
receive,
appropriate
or
realize
upon
the
Collateral
or
otherwise
foreclose
or
enforce
Lender’s
security
interests
in
any
or all
Collateral
in
any
manner
permitted
by
the Security Agreement.
ARTICLE XI
RESERVED
Section
11.01. Reserved.
ARTICLE XII
MISCELLANEOUS
Section
12.01. Notices.
Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other communications provided for
herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by
certified
or
registered mail
or
sent by telecopy, as follows:
(a) if to U-Haul Leasing & Sales Co., to it at 0000 Xxxxxxxxx Xxx, Xxxx, XX
00000-0000,
Attention: Xxxxx Xxxxxxx (Facsimile
No.
(000) 000-0000);
(b) if to UHI, in any capacity, or U-Haul Co. of Arizona, to such party at 0000
X. Xxxxxxx Xxxxxx, Xxxxxxx, XX 00000, Attention: Xxxxxxxx Xxxxxxx (Facsimile No. (602)
263-6173);
and
34
(c) if to the Lender, to it at 0 Xxxxx Xxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
XX
00000,
Attention: Xxxxxxx Xxxxx
(Facsimile
No.
(000) 000-0000).
Any
party
hereto
may
change
its
address
or
telecopy
number
for
notices
and
other
communications
hereunder
by
notice
to
the
other
parties
hereto. All
notices
and
other
communications given to any party hereto in accordance with the provisions of this Agreement
shall
be
deemed
to
have
been
given
on
the
date
of
receipt.
All
payments
hereunder
shall
be
made in accordance with the wire instructions specified on Exhibit
K hereto, or to such other
payment address as may be specified in writing by the applicable payee party to the other parties
hereto.
Section
12.02. Waivers;
Amendments.
(a) No
failure
or
delay
by
the
Lender
in
exercising
any
right
or
power
hereunder or under any other Loan Document shall
operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or discontinuance of
steps
to
enforce
such
a
right
or
power,
preclude
any
other
or
further
exercise
thereof
or
the
exercise of any other right or power.
The rights and remedies of the Lender hereunder and under
the other Loan Documents are cumulative and are not exclusive of any rights or remedies that
they would otherwise have. No waiver of any provision of any Loan Document or consent to
ny departure by any Loan Party therefrom shall in any event be effective unless the same shall
be permitted by paragraph (b) of this Section, and then such waiver or consent shall be effective
only in the specific instance and for the purpose for which given.
Without limiting the generality
of
the
foregoing,
the
making
of
a
Loan
shall
not
be
construed
as
a
waiver
of
any
Default,
regardless of whether the Lender may
have
had notice
or
knowledge of such Default at the time.
(b) Neither this Agreement nor any other Loan Document nor any provision
hereof or thereof may be waived, amended or modified except, in the case of this Agreement,
pursuant to an agreement or agreements in writing entered into by the Borrowers and the Lender
or, in the case of any other Loan Document, pursuant to an agreement or agreements in writing
entered into by the Loan Party or Loan Parties that are parties thereto with the consent of the
Lender;
provided
that
no
such
agreement
shall
(i)
increase
the
Commitment
of
the
Lender
without the written consent of the Lender, (ii) reduce the principal amount of any Loan or reduce
the
rate
of
interest
on
such
Loan,
or
reduce
any
fees
payable
hereunder,
without
the
written
consent of the Lender, (iii) postpone the scheduled date of payment of the principal amount of
any Loan or any interest thereon, or any fees payable hereunder, or reduce the amount of, waive
or excuse any such payment, or postpone the scheduled date of expiration of any Commitment,
without
the
written
consent
of
the
Lender,
(iv)
change
any
of
the
provisions
of
this
Section
without the written consent of the Lender, (v) release all or any substantial part of the Collateral
from
the
Liens
of
the
Security
Documents
(except
as
expressly
provided
herein
or
therein),
without the written consent of the Lender, or (vi) release of UHI from its guarantee under the
Guarantee
Agreement
(except
as
expressly
provided
in
the
Guarantee
Agreement)
or
limit
or
condition its obligations thereunder, without
the
written consent
of
the Lender.
Section
12.03. Expenses;
Indemnity;
Damage
Waiver.
35
(a) The Borrowers shall pay (i) all costs and expenses incurred by the Lender,
including
the
reasonable
fees,
charges
and
disbursements
of
counsel
for
the
Lender,
in
connection
with
the
negotiation,
preparation,
execution
and
delivery
of
the
Loan
Documents
(including expenses incurred in connection with its due diligence activities) and (ii) all costs and
expenses
incurred
by
the
Lender, including
the
reasonable
fees,
charges
and
disbursements
of
any counsel for the Lender, in connection with (A) the enforcement or protection of its rights in
connection with the Loan Documents, including its rights under this Section, or in connection
with
the
Loans
made
hereunder,
including
all
such
costs
and
expenses
incurred
during
any
workout,
restructuring
or
negotiations
in
respect
of
such
Loans,
and
(B)
in
the
case
of
the
Lender, the administration of, and any amendments, modifications, waivers or supplements of or
to
the
provisions of, any of the Loan Documents.
(b) The Borrowers shall indemnify the Lender, and each Related Party of any
of the foregoing Persons (each such Person being called an “Indemnitee”) against, and hold each
Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses,
including
the
reasonable
fees,
charges
and
disbursements
of
any
counsel
for
any
Indemnitee,
incurred by or asserted against any Indemnitee arising out of, in connection with, or as a result of
(i)
the
execution
or
delivery
of
any
Loan
Document
or
any
other
agreement
or
instrument
contemplated hereby, the performance by the parties to the Loan Documents of their respective
obligations
thereunder
or
the
consummation
of
the
Transactions
or
any
other
transactions
contemplated hereby, (ii) any Loan or the use of the proceeds therefrom, or (iii) any actual or
prospective
claim,
litigation,
investigation
or
proceeding
relating
to
any
of
the
foregoing,
whether based on contract, tort or any other theory and regardless of whether any Indemnitee is a
party thereto; provided that such indemnity shall not, as to any Indemnitee, be available to the
extent that such losses, claims, damages, liabilities or related expenses have resulted from the
gross
negligence or willful misconduct
of such Indemnitee.
(c) To the extent permitted by applicable law, the Borrowers shall not assert,
and each of them hereby waives, any claim against any Indemnitee, on any theory of liability, for
special,
indirect,
consequential
or
punitive
damages
(as
opposed
to
direct
or
actual
damages)
arising
out
of,
in
connection
with,
or
as
a
result
of,
this
Agreement
or
any
agreement
or
instrument
contemplated
hereby, the
Transactions, any
Loan
or the use of the proceeds
thereof.
(d) All amounts due under this Section shall be payable not later than 30 days
after written demand
therefor.
Section
12.04. Successors
and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns permitted hereby, except
that a Loan Party may not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Lender (and any attempted assignment or transfer by any
Loan Party without such consent shall be null and void).
Nothing in this Agreement, expressed
or
implied,
shall
be
construed
to
confer
upon
any
Person
(other
than
the
parties
hereto,
their
respective
successors
and
assigns
permitted
hereby
and,
to
the
extent
expressly
contemplated
hereby, the Related Parties of the Lender) any legal or equitable right, remedy or claim under or
by
reason
of this Agreement.
36
(b) The Lender may, without the consent of the Loan Parties, assign all or a
portion
of
its
rights
and
obligations
under
this
Agreement
(including
all
or
a
portion
of
its
Commitment and the Loans at the time owing to it); provided that (i) except in the case of an
assignment to an Affiliate of MLCFC or its successors or assigns, or an assignment of the entire
remaining
amount
of
the
Lender’s
Commitment
or
entire
remaining
Loans,
the
amount
of
the
Commitment and Loans of the assigning Lender subject to each such assignment (determined as
of the date the Assignment and Acceptance with respect to such assignment is delivered by the
assigning Lender) shall not be less than $5,000,000 unless the Borrowers otherwise consent, (ii)
each
partial
assignment
shall
be
made
as
an
assignment
of
a
proportionate
part
of
all
the
assigning Lender’s rights and obligations under this Agreement, except that this clause (ii) shall
not
be
construed
to
prohibit
the
assignment
of
a
proportionate
part
of
all
of
the
assigning
Lender’s rights and obligations in respect of (A) Loans, (B) Loans separately from (or without
assigning) Commitments or (C) Commitments separately from (or without assigning) Loans, (iii)
the parties to each assignment shall execute and deliver an Assignment and Acceptance, and (iv)
the assignee, if it shall not be a Lender hereunder prior to such assignment, shall deliver to the
Borrowers
its
notice
and
payment
information. Subject
to
acceptance
and
recording
thereof
pursuant
to
paragraph
(d)
of
this
Section,
from
and
after
the
effective
date
specified
in
each
Assignment and Acceptance the assignee thereunder shall be a party hereto and, to the extent of
the interest assigned by such Assignment and Acceptance, have the rights and obligations of a
Lender
under
this
Agreement,
and
the
assigning
Lender
thereunder
shall,
to
the
extent
of
the
interest assigned by such Assignment and Acceptance, be released from
its obligations under this
Agreement
(and,
in
the
case
of
an
Assignment
and
Acceptance
covering
all
of
the
assigning
Lender’s rights and obligations under this Agreement, the Lender shall cease to be a party hereto
but
shall
continue
to
be
entitled
to
the
benefits
of
Sections
5.09,
5.10
and
12.03). Any
assignment or transfer by the Lender of rights or obligations under this Agreement that does not
comply
with
this
paragraph
shall
be
treated
for
purposes
of
this
Agreement
as
a
sale
by
the
Lender of a participation in such rights and obligations in accordance with paragraph (c) of this
Section.
(c) The
Lender
may,
without
the
consent
of
the
Loan
Parties,
sell
participations to one or more Persons (a “Participant”) in all or a portion of the Lender’s rights
and
obligations
under
this
Agreement
(including
all
or
a
portion
of
its
Commitments
and
the
Loans owing to it); provided that (i) the Lender’s obligations under this Agreement shall remain
unchanged,
(ii)
the
Lender
shall
remain
solely
responsible
to
the
other
parties
hereto
for
the
performance
of
such
obligations
and
(iii)
the
Loan
Parties
shall
continue
to
deal
solely
and
directly
with the Lender in connection with the
Lender’s rights and obligations under this
Agreement. Any
agreement
or
instrument
pursuant
to
which
the
Lender
sells
such
a
participation
shall
provide
that
the
Lender
shall
retain
the
sole
right
to
enforce
the
Loan
Documents and to approve any amendment, modification or waiver of any provision of the Loan
Documents; provided that such agreement or instrument may provide that the Lender will not,
without
the
consent
of
the
Participant,
agree
to
any
amendment,
modification
or
waiver
described
in the first proviso to Section
12.02(b) that
affects such Participant. Subject
to
paragraph (f) of this Section, the Loan Parties agree that each Participant shall be entitled to the
benefits of Sections 5.09 and 5.10 to the same extent as if it were a Lender and had acquired its
interest by assignment pursuant to paragraph (b) of this Section provided that such Participant
agrees to be subject to Sections 5.10(f) as though it was a Lender.
To the extent permitted by
law, each Participant also shall be entitled to the benefits of Section 12.08 as though it were a
37
Lender,
provided
such
Participant
agrees
to
be
subject
to
Section
5.15(c)
as
though
it
were
a
Lender.
(d) The Lender may at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement to secure obligations of the Lender, including any
pledge or assignment to secure obligations to a Federal Reserve Bank, and this Section shall not
apply to any such pledge or assignment of a security interest; provided that no such pledge or
assignment of a security interest shall release the Lender from any of its obligations hereunder or
substitute
any such pledgee or assignee
for
the Lender as a party hereto.
Section
12.05. Survival. All covenants, agreements, representations and
warranties
made
by
the
Loan
Parties
in
the
Loan
Documents
and
in
the
certificates
or
other
instruments
delivered
in
connection
with
or
pursuant
to
this
Agreement
or
any
other
Loan
Document
shall
be
considered
to
have
been
relied
upon
by
the
other
parties
hereto
and
shall
survive
the
execution
and
delivery
of
the
Loan
Documents
and
the
making
of
any
Loans,
regardless
of any investigation made
by
any such other party or on its behalf and notwithstanding
that the Lender may have had notice or knowledge of any Default or incorrect representation or
warranty at the time any credit is extended hereunder, and shall continue in full force and effect
as long as the principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid and so long as the Commitments have
not expired or terminated.
The provisions of Sections 5.09, 5.10 and 12.03 and Article XI shall
survive and remain in full force and effect regardless of the consummation of the transactions
contemplated
hereby,
the
repayment
of
the
Loans,
the
expiration
or
termination
of
the
Commitments
or
the
termination
of this Agreement
or
any provision hereof.
Section
12.06. Counterparts; Integration; Effectiveness.
This Agreement may be
executed
in counterparts (and by different parties hereto
on
different counterparts), each of which
shall
constitute
an
original,
but
all
of
which
when
taken
together
shall
constitute
a
single
contract.
This Agreement, the other Loan Documents and any separate letter agreements with
respect to fees payable to the Lender constitute the entire contract among the parties relating to
the
subject matter
hereof and supersede any and all
previous agreements
and
understandings, oral
or
written,
relating
to
the
subject
matter
hereof. Except
as
provided
in
Section
7.01(a),
this
Agreement shall become effective when it shall have been executed by the Lender and when the
Lender shall have received counterparts hereof which, when taken together, bear the signatures
of
each
of the other parties hereto, and
thereafter shall be binding
upon
and inure to the
benefit
of
the
parties
hereto
and
their
respective
successors
and
assigns. Delivery
of
an
executed
counterpart of a signature page of this Agreement by telecopy shall be effective as delivery of a
manually
executed counterpart of this Agreement.
Section
12.07. Severability.
Any provision of this Agreement held to be invalid,
illegal
or
unenforceable
in
any
jurisdiction
shall,
as
to
such
jurisdiction,
be
ineffective
to
the
extent of such invalidity, illegality or unenforceability without affecting the validity, legality and
enforceability of the remaining provisions hereof; and the invalidity of a particular provision in a
particular
jurisdiction shall not
invalidate such provision
in any
other jurisdiction.
Section
12.08. Right of Setoff.
If an Event of Default shall have occurred and be
continuing, the Lender and each of its Affiliates is hereby authorized at any time and from time
38
to time, to the fullest extent permitted by law, to set off and apply any and all deposits (general
or special, time or demand, provisional or final) at any time held and other obligations at any
time owing by the Lender or Affiliate to or for the credit or the account of the Borrowers against
any of and all the obligations of the Borrowers now or hereafter existing under this Agreement
held by the Lender, irrespective of whether or not the Lender shall have made any demand under
this
Agreement
and
although
such
obligations
may
be
unmatured. The
rights
of
the
Lender
under this Section are in addition to other rights and remedies (including other rights of setoff)
which
the
Lender
may
have.
Section
12.09. Governing
Law; Jurisdiction; Consent to Service of Process.
(a) THIS
AGREEMENT
SHALL
BE
CONSTRUED
IN
ACCORDANCE
WITH
AND
GOVERNED
BY
THE
LAW OF
THE
STATE
OF NEW
YORK.
(b) UHI and the Borrowers hereby irrevocably and unconditionally submits,
for itself and its property, to the nonexclusive jurisdiction of the Supreme Court of the State of
New York sitting in New York County and of the United States District Court of the Southern
District
of
New
York,
and
any
appellate
court
from
any
thereof,
in
any
action
or
proceeding
arising
out
of
or
relating
to
any
Loan
Document,
or
for
recognition
or
enforcement
of
any
judgment, and each of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined in such New
York State or, to the extent permitted by law, in such Federal court.
Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement or any other Loan Document shall affect any right that the Lender
may otherwise have to bring any action or proceeding relating to this Agreement or any other
Loan
Document
against the Borrowers
or
its properties
in the courts of any jurisdiction.
(c) UHI and the Borrowers hereby irrevocably and unconditionally waives, to
the
fullest
extent
it
may
legally
and
effectively
do
so,
any
objection
which
it
may
now
or hereafter have to the laying of venue of any suit, action or proceeding arising out of or relating to
this
Agreement
or
any
other
Loan
Document
in
any
court
referred
to
in
paragraph
(b)
of
this
Section.
Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted by
law, the defense of an inconvenient forum to the maintenance of such action or proceeding in
any
such court.
(d) Each
of
the
Servicer/Manager,
the
Guarantor
and
each
Borrower
hereby
irrevocably agrees that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially similar form of mail),
postage prepaid, to such Person at its address set forth in Section 12.01 or at such other address
of which the Lender shall have been notified pursuant thereto.
Nothing in this Agreement or any
other Loan Document will affect the right of any party to this Agreement to serve process in any
other
manner
permitted
by
law.
Section
12.10. WAIVER
OF
JURY
TRIAL. EACH
PARTY
HERETO
HEREBY
WAIVES,
TO
THE
FULLEST
EXTENT
PERMITTED
BY
APPLICABLE
LAW,
ANY
RIGHT
IT
MAY
HAVE
TO
A
TRIAL
BY
JURY
IN
ANY
LEGAL
PROCEEDING
39
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT,
ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY
(WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
EACH PARTY
HERETO
(A)
CERTIFIES
THAT
NO
REPRESENTATIVE,
AGENT
OR
ATTORNEY
OF
ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER
PARTY
WOULD
NOT,
IN
THE
EVENT
OF
LITIGATION,
SEEK
TO
ENFORCE
THE
FOREGOING
WAIVER
AND
(B)
ACKNOWLEDGES
THAT
IT
AND
THE
OTHER
PARTIES
HERETO
HAVE
BEEN
INDUCED
TO
ENTER
INTO
THIS
AGREEMENT
BY,
AMONG
OTHER
THINGS,
THE
MUTUAL
WAIVERS
AND
CERTIFICATIONS
IN
THIS
SECTION.
Section
12.11. Headings. Article
and
Section
headings
and
the
Table
of
Contents used herein are for convenience of reference only, are not part of this Agreement
and
shall
not affect the construction of, or be taken into
consideration in interpreting, this Agreement.
Section
12.12. Confidentiality.
The Lender agrees to maintain the confidentiality
of
the
Information
(as
defined
below)
and
not
use
the
Information
for
any
purpose
not
contemplated
by
this
Agreement,
except
that
Information
may
be
disclosed
(a)
to
its
and
its
Affiliates’
directors,
officers,
employees
and
agents,
including
accountants,
legal
counsel
and
other
advisors
(it
being
understood
that
the
Persons to
whom
such
disclosure
is
made
will
be
informed of the confidential nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority, (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party
to
this
Agreement,
(e)
in
connection
with
the
exercise
of
any
remedies
hereunder
or
any
suit,
action or proceeding relating to this Agreement or any other Loan Document or the enforcement
of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially
the same as those of this Section, to any assignee of or Participant in, or any prospective assignee
of or Participant in, any of its rights or obligations under this Agreement, (g) with the consent of
UHI or the Borrowers or (h) to the extent such Information (i) becomes publicly available other
than
as
a
result
of
a
breach
of
this
Section
or
(ii)
becomes
available
to
the
Lender
on
a
nonconfidential basis from a source other than UHI or the Borrowers.
For the purposes of this
Section,
“Information”
means
all
information
received
from UHI
or
the
Borrowers
relating
to
UHI or the Borrowers or its business, other than any such information that is publicly available
or
available
to
the
Lender
on
a
nonconfidential
basis
prior
to
disclosure
by
UHI
or
the
Borrowers, provided that such information is identified at the time of delivery as confidential.
Any Person required to maintain the confidentiality of Information as provided in this Section
shall be considered to have complied with its obligation to do so if such Person has exercised the
same degree of care to maintain the confidentiality of such Information as such Person would
accord
to
its own confidential information.
Section
12.13. Joint
and
Several
Liability
of
Borrowers.
Each
Borrower
acknowledges and agrees that, whether or not specifically
indicated as such
in a Loan Document,
all
Obligations
shall
be
joint
and
several
Obligations
of
each
individual
Borrower,
and
in
furtherance
of
such
joint
and
several
Obligations,
each
Borrower
hereby
irrevocably
and
unconditionally
guarantees
the
payment
of
all
Obligations
of
each
other
Borrower. Each
Borrower
hereby
acknowledges
and
agrees
that
such
Borrower
shall
be
jointly
and
severally
40
liable to the Lender for all representations, warranties, covenants, obligations and indemnities of
the
Borrowers hereunder.
[Signature
Page
Follows]
41
Schedule
6.04
Liabilities
(in Excess of $25,000,000)
1. U-Haul
International,
Inc.
is
the
guarantor
of
all
obligations
under
that
Amended
and
Restated Credit Agreement among Amerco Real Estate Company, Amerco Real Estate Company
of Texas, Inc., Amerco Real Estate Company of Alabama, Inc., U-Haul Co. of Florida, U-Haul
International, Inc. and Xxxxxxx Xxxxx Commercial Finance Corp., dated as of June 8, 2005,
as
amended,
in
the amount
of
$500,000,000.
2. U-Haul International, Inc. is the guarantor of certain obligations under the $240,000,000,
in
aggregate
amount,
of
CMBS
loans
originated
by
Xxxxxxx
Xxxxx
Mortgage
Lending,
Inc.
to
affiliates
of U-Haul International,
Inc.,
dated
June
8,
2005.
3. U-Haul International, Inc. is the guarantor of certain obligations under the $240,000,000,
in aggregate amount, of CMBS loans originated by Xxxxxx Xxxxxxx Mortgage Capital, Inc. to
affiliates
of U-Haul International,
Inc.,
dated
June
8,
2005.
4. U-Haul Leasing & Sales Co. is the lessee under a Master Equipment Lease, between AIG
Commercial
Equipment
Finance,
Inc.,
as
lessor
and
U-Haul
Leasing
&
Sales
Co.,
dated
March
29,
2005, in the amount of $42,818,676.35.
5. U-Haul
Leasing
&
Sales
Co.
is
the
lessee
under
a
Master
Equipment
Lease,
between
Banc
of
America
Leasing
&
Capital,
LLC,
as
lessor
and
U-Haul
Leasing
&
Sales
Co.,
dated
December
19,
1997, in the amount
of
$54,696,396.62.
6. U-Haul
Leasing
&
Sales
Co.
is
the
lessee
under
a
Master
Equipment
Lease,
between
General
Electric
Capital
Corporation,
as
lessor
and
U-Haul
Leasing
&
Sales
Co.,
dated
October
22, 2004, in the amount
of
$90,950,539.06.
7. U-Haul
Leasing
&
Sales
Co.
is
the
lessee
under
a
Master
Equipment
Lease,
between
Xxxxxxx Xxxxx Capital, a division
of Xxxxxxx Xxxxx Business Financial Services
Inc., as lessor
and
U-Haul
Leasing & Sales Co., dated April
30,
2004, in the amount of $40,875,369.22.
8. U-Haul Leasing & Sales Co., U-Haul Co. of Arizona and U-Haul International, Inc. are
borrowers pursuant
to
a
Credit
Agreement
between
such
parties,
U-Haul
International,
Inc.
as
guarantor and Xxxxxxx Xxxxx Commercial Finance Corporation, as lender, dated as of June
28,
2005,
in
an amount
up
to $150,000,000.
9. U-Haul
Leasing
is
lessee
under
a
Master
Equipment
Lease,
between
Chase
Equipment
Leasing, Inc. as Lessor and U-Haul Leasing & Sales Co., dated June 17, 1999, in the amount of
$38,764,463.17.
10. U-Haul
Leasing
is
lessee
under
a
Master
Equipment
Lease,
between
National
City
Leasing Corporation, as Lessor and U-Haul Leasing & Sales Co., dated December 15, 1999, in
the
amount
of
$30,638,189.26.
11. Obligations as Guarantor under that certain Promissory Note dated August 12, 2005 in
the maximum amount of up to $50,000,000 (of which $20,000,000 has currently been drawn)
made by AREC Holdings, LLC and UHIL Holdings, LLC in favor of Xxxxxx Xxxxxxx Mortgage
Capital, Inc.
12. U-Haul Leasing & Sales Co., U-Haul Co. of Arizona and U-Haul International, Inc. are
borrowers pursuant
to
a
Credit
Agreement
between
such
parties,
U-Haul
International,
Inc.
as
guarantor
and
Xxxxxxx
Xxxxx
Commercial
Finance
Corporation,
as
lender,
dated
as
of
November
10,
2005, in an amount
up
to $150,000,000.
13. U-Haul Leasing & Sales Co., U-Haul Co. of Arizona and U-Haul International, Inc. are
borrowers pursuant to a Credit Agreement between such parties, U-Haul International, Inc. and
AMERCO
as
guarantors,
Orange
Truck
Trust
2006,
as
Collateral
Agent
and
BTMU
Capital
Corporation,
as lender, dated as of May
31,
2006, in an amount
up
to $150,000,000.
14. U-Haul Leasing & Sales Co., U-Haul Co. of Arizona and U-Haul International, Inc. are
borrowers pursuant to a Credit Agreement between such parties, U-Haul International, Inc., as
guarantor, and Bayerische Hypo- und Vereinsbank AG, New York Branch, as lender, dated as of
June
6,
2006, in an amount
up
to $50,000,000.
15. U-Haul Leasing & Sales Co., U-Haul Co. of Arizona and U-Haul International, Inc. are
borrowers pursuant to a Credit Agreement between such parties, U-Haul International, Inc. and
AMERCO,
as
guarantors,
and
U.S.
Bancorp
Equipment
Finance
Inc.,
as
lender,
dated
as
of
February
12, 2007, in an amount
up
to $30,000,000.
2
Schedule
6.15
Insurance
Policies
AMERCO
Insurance Program
Liability
and Excess Insurance
Policies
Business
Auto
Various
A
RatedCarriers
Lead
Excess CarrierAIG
$15
Million XS SIR
Service
Vehicles
and Hawaii Rental
Fleet Self
Insured
Retention
and
Alaska
Rental
Fleet
Self-Insured Status $5
Million
Republic Western
Policy
Department of Transportaion
Arizona
Minimum Financial
Minimum Financial
Responsibility Limits
Responsibility Limits
The
insurance
program for
AMERCO Workers
Compensation
includes
D&O Insurance, Crime, AIG
Aviation Insurance.
The
excess liability insurance
program
includes
business auto.
All
carriers
have
drop
down endorsements
should
the
carrier below be unable to
respond.
Property Insurance
AIG
$100
Million
XS
Deductible
Deductible
The
self-insured status by Arizona
DOT
is
for those trucks licensed
in
Property Insurance
Arizona
which are all trucks except
for Deductible
those
in
Hawaii and
Alaska. $500,000
EXHIBIT
A
[FORM
OF ASSIGNMENT
AND
ACCEPTANCE]
ASSIGNMENT AND ACCEPTANCE
Reference is made to the Amended and Restated Credit Agreement, dated as of
March 12, 2007 (as the same may be amended, supplemented or otherwise modified from time to
time,
the
“Credit
Agreement”),
among
U-HAUL
LEASING
&
SALES
CO.,
a
Nevada
corporation,
U-HAUL
INTERNATIONAL,
INC.,
a
Nevada
corporation,
and
XXXXXXX
XXXXX COMMERCIAL FINANCE CORP., as Lender.
Capitalized terms used herein but not
defined
herein shall have the meanings
assigned to such terms
in the
Credit
Agreement.
1.
The
assignor
named
below
(the
“Assignor”)
sells
and
assigns,
without
recourse, to the assignee named below (the “Assignee”), and the Assignee hereby purchases and
assumes, without recourse, from the Assignor, effective as of the Effective Date set forth below,
the
interests
set
forth
below
(the
“Assigned
Interest”)
in
the
Assignor’s
rights
and
obligations
under the Credit Agreement, including, without limitation, the percentages and amounts set forth
on the reverse hereof of (a) the Commitments of the Assignor on the Effective Date and (b) the
Loans owing to the Assignor that are outstanding on the Effective Date.
The Assignee hereby
acknowledges receipt of a copy of the Credit Agreement.
From and after the Effective Date (a)
the Assignee shall be a party to and be bound by the provisions of the Credit Agreement and, to
the
extent
of
the
interests
assigned
by
this
Assignment
and
Acceptance,
have
the
rights
and
obligations of a Lender thereunder and under the Loan Documents and (b) the Assignor shall, to
the extent of the interests assigned by this Assignment and Acceptance, relinquish its rights and
be
released
from
its
obligations
under
the
Credit
Agreement
(and
in
the
event
that
this
Assignment
and
Acceptance
covers
all
or
the
remaining
portion
of
the
Assignor’s
rights
and
obligations under the Credit Agreement, the Assignor shall cease to be a party thereto but shall
continue to be entitled to the benefits of Sections 5.09, 5.10 and 12.05 thereof, as well as to any
fees
accrued for
its
account
and
not yet paid).
2.
This Assignment and Acceptance is being delivered to the Assignor and the
Borrowers, together with, if the Assignee is organized under the laws
of a jurisdiction outside the
United States, the forms specified in Section 5.10 of the Credit Agreement, duly completed and
executed
by such Assignee.
3.
This
Agreement
and
Acceptance
shall
be
governed
by,
and
construed
in
accordance
with,
the laws of the
State
of New York.
A-1
Date
of
Assignment:
Legal
Name of
Assignee:
Legal
Name of
Assignor:
Assignee’s
Address for
Notices
Effective Date of
Assignment (may not be fewer than five Business Days after the
Date
of
Assignment):
The
terms
set
forth above are hereby agreed to:
[_____________________]
as
Assignor,
By:_____________________
Name:
Title:
[_________________________]
as
Assignee,
By:
_______________________
Name:
Title:
X-0
X-0
EXHIBIT
B
[FORM
OF
GUARANTEE
AGREEMENT]
GUARANTEE
GUARANTEE, dated as of March 12, 2007, made by U-HAUL
INTERNATIONAL, INC. (the “Guarantor”), in favor of XXXXXXX XXXXX COMMERCIAL
FINANCE
CORP., as lender
(the “Lender”),
parties
to
the Credit Agreement
referred
to
below.
RECITALS
Pursuant to the Amended and Restated Credit Agreement, dated as of March 12,
2007
(as
amended,
supplemented
or
otherwise
modified
from
time
to
time,
the
“Credit
Agreement”), among U-HAUL SALES & LEASING CO., U-HAUL CO. OF ARIZONA and U-
HAUL
INTERNATIONAL,
INC.
(each,
a
“Borrower”
and
collectively, the
“Borrowers”),
the
Guarantor and the Lender, the Lender has agreed to make loans to the Borrower upon the terms
and subject to the conditions set forth therein, such loans to be evidenced by the Note issued by
the Borrower thereunder.
The Borrowers are members of an affiliated group of corporations that
includes the Guarantor.
The Borrowers and the Guarantor are engaged in related businesses, and
the Guarantor will derive substantial direct and indirect benefit from the making of the loans.
It
is a condition precedent to the obligation of the Lender to make the loans to the Borrowers under
the Credit Agreement that the Guarantor hereto shall have executed and delivered this Guarantee
to
the
Lender.
NOW, THEREFORE, in consideration of the premises and to induce the Lender
to
enter
into
the
Credit
Agreement
and
make
the
loans
to
the
Borrowers,
under
the
Credit
Agreement,
the
Guarantor
hereby agrees
with
the Lender as follows:
1.
Defined
terms.
(a)
Unless otherwise defined herein, terms defined in the Credit Agreement
and
used
herein
shall
have
the
meanings
given to them in
the
Credit
Agreement.
(b) The
words
“hereof,”
“herein”
and
“hereunder”
and
words
of
similar
import
when used in this Guarantee shall refer to this Guarantee as a whole and not to any particular
provision of this Guarantee, and section and paragraph references are to this Guarantee unless
otherwise specified.
(c)
The
meanings
given
to
terms
defined
herein
shall
be
equally
applicable
to
both
the singular and plural forms
of such
terms.
2.
Guarantee.
B-8
(a)
The Guarantor hereby, unconditionally and irrevocably, guarantees to the Lender and
its respective successors, indorsees, transferees and assigns, the prompt and complete payment
and performance by each of U-Haul Sales & Leading Co. and U-Haul Co. of Arizona (each, an
“Affiliate
Borrower”
and
collectively,
the
“Affiliate
Borrowers”)
of
its
obligations
under
the
Loan
Documents,
whether at stated
maturity,
by acceleration or
otherwise.
(b) Anything herein or in any other Loan Document to the contrary notwithstanding, the
maximum liability of the Guarantor hereunder and under the other Loan Documents shall in no
vent exceed the amount which can be guaranteed by the Guarantor under applicable federal and
xxxx
laws
relating
to
the insolvency
of debtors.
(c)
The
Guarantor
further
agrees
to
pay
any
and
all
expenses
(including,
without
limitation,
all fees and disbursements
of
counsel) which may be paid or
incurred by the Lender in
enforcing, or obtaining advice of counsel in respect of, any rights with respect to, or collecting,
any or all of
the Obligations and/or enforcing any rights with respect to, or collecting against, the
Guarantor under this Guarantee.
This Guarantee shall remain in full force and effect until the
Obligations are paid in full and the Commitments are terminated, notwithstanding that from time
to time prior thereto the Affiliate Borrowers, individually or collectively, may be free from any
Obligations.
(d) The
Guarantor
agrees
that
the
Obligations
may
at
any
time
and
from
time
to
time
exceed the amount of the liability of the Guarantor hereunder without impairing this Guarantee
or
affecting the rights and remedies
of
the Lender hereunder.
(e)
No payment or payments made by any Borrower, the Guarantor, any other guarantor
or any other Person or received or collected by the Lender from any Borrower, the Guarantor,
any other guarantor or any other Person by virtue of any action or proceeding or any set-off or
appropriation or application at any time or from
time to time in reduction of or in payment of the
Obligations
shall
be
deemed
to
modify,
reduce,
release
or
otherwise
affect
the
liability
of
the
Guarantor
hereunder
which
shall,
notwithstanding
any
such
payment
or
payments
other
than
payments made by the Guarantor in respect of the Obligations or payments received or collected
from
the
Guarantor
in
respect
of
the
Obligations,
remain
liable
for
the
Obligations
up
to
the
maximum
liability
of
the
Guarantor
hereunder
until
the
Obligations
are
paid
in
full
and
the
Commitments
are
terminated.
(f)
The Guarantor agrees that whenever, at any time, or from time to time, it shall make
any
payment
to
the
Lender
on
account
of
its
liability
hereunder,
it
will
notify
the
Lender
in
writing
that such payment
is
made under
this Guarantee for such purpose.
3.
Right
of
Set-off.
The Guarantor hereby irrevocably authorizes the Lender at any time
and from time to time without notice to the Guarantor, any such notice being expressly waived
by the Guarantor, to set-off and appropriate and apply any and all deposits (general or special,
time
or
demand,
provisional
or
final),
in
any
currency,
and
any
other
credits,
indebtedness
or
claims, in any currency, in each case whether direct or indirect, absolute or contingent, matured
or unmatured, at any time held or owing by the Lender to or for the credit or the account of the
Guarantor, or any part thereof in such amounts as the Lender may elect, against and on account
of the obligations and liabilities of the Guarantor to the Lender hereunder and claims of every
B-2
nature
and
description
of
the
Lender
against
the
Guarantor,
in
any
currency,
whether
arising
hereunder,
under
the
Credit
Agreement,
the
Note,
any
Loan
Documents
or
otherwise,
as
the
Lender may elect, whether or not the Lender has made any demand for payment and although
such obligations, liabilities and claims may be contingent or unmatured.
The Lender shall notify
the Guarantor promptly of any such set-off and the application made by the Lender, provided
that the failure to give such notice shall not affect the validity of such set-off and application.
The
rights
of
the
Lender
a
under
this
Section
are
in
addition
to
other
rights
and
remedies
(including,
without
limitation,
other rights of set-off) which the Lender may have.
4.
No
Subrogation.
Notwithstanding any payment or payments made by the Guarantor
hereunder or any set-off or application of funds of the Guarantor by the Lender, the Guarantor
shall
not
be
entitled
to
be
subrogated
to
any
of
the
rights
of
the
Lender
against
the
Affiliate
Borrowers or any other guarantor or any collateral security or guarantee or right of offset held by
any Lender for the payment of the Obligations, nor shall
the
Guarantor seek
or
be entitled to seek
any contribution or reimbursement from the Affiliate
Borrowers or any
other guarantor in
respect
of
payments
made
by
the
Guarantor
hereunder,
until
all
amounts
owing
to
the
Lender
by
the
Affiliate
Borrowers
on
account
of
the
Obligations
are
paid
in
full
and
the
Commitments
are
terminated.
If any amount
shall be paid to the
Guarantor on account of such subrogation rights at
any time when all of the Obligations shall not have been paid in full, such amount shall be held
by the Guarantor in trust for the Lender, segregated from other funds of the Guarantor, and shall,
forthwith upon receipt by the Guarantor, be turned over to the Lender in the exact form received
by
the
Guarantor
(duly
indorsed
by
the
Guarantor
to
the
Lender,
if
required),
to
be
applied
against
the
Obligations,
whether
matured
or
unmatured,
in
such
order
as
the
Lender
may
determine.
5.
Amendments,
etc.
with
respect to
the
Obligations; Waiver
of
Rights.
The Guarantor
shall remain obligated hereunder notwithstanding that, without any reservation of rights against
the Guarantor and without notice to or further assent by the Guarantor, any demand for payment
of any of the Obligations made by the Lender may be rescinded by such party and any of the
Obligations
continued,
and the Obligations,
or the liability of any other party upon or for any part thereof,
or
any
collateral
security
or
guarantee
therefor
or
right
of
offset
with
respect
thereto,
may,
from
time
to
time,
in
whole
or
in
part,
be
renewed,
extended,
amended,
modified,
accelerated, compromised,
waived,
surrendered
or
released
by
the
Lender,
and
the
Credit
Agreement,
the
Note
and
the
other
Loan
Documents
and
any
other
documents
executed
and
delivered in
connection
therewith
may
be
amended,
modified,
supplemented
or
terminated,
in
whole
or
in
part,
as
the
Lender
may
deem
advisable
from
time
to
time,
and
any
collateral
security, guarantee
or
right
of
offset
at
any
time
held
by
the
Lender
for
the
payment
of
the
Obligations may be sold,
exchanged, waived, surrendered or released.
The Lender shall not have
any obligation to protect,
secure, perfect or insure any Lien at any time held by it as security forthe Obligations or for this
Guarantee or any property subject thereto.
When making any demand
hereunder against the
Guarantor, the Lender may, but shall be under no obligation to, make a
similar demand on the
Affiliate Borrowers or any other guarantor, and any failure by the Lender
to make any such demand or to collect any payments from the Affiliate Borrowers or any such
other guarantor or any release of an Affiliate Borrower or such other guarantor shall not relieve
the Guarantor of its obligations or liabilities hereunder, and shall not impair or affect the rights
and remedies, express or implied, or as a matter of law, of the Lender against the Guarantor.
For
B-3
the
purposes
hereof
“demand”
shall
include
the
commencement
and
continuance
of
any
legal
proceedings.
6.
Guarantee
Absolute
and
Unconditional.
The Guarantor waives any and all notice of
the creation, renewal, extension or accrual of any of the Obligations and notice of or proof of
reliance by the Lender upon this Guarantee or acceptance of this Guarantee, the Obligations, and
any
of
them,
shall
conclusively
be
deemed
to
have
been
created,
contracted
or
incurred,
or
renewed,
extended,
amended
or
waived,
in
reliance
upon
this
Guarantee;
and
all
dealings
between
the
Affiliate
Borrowers
and
the
Guarantor,
on
the
one
hand,
and
the
Lender
and
the
Affiliate Borrowers, on the other hand, likewise shall be conclusively presumed to have been had
or consummated in reliance upon this Guarantee.
The Guarantor waives diligence, presentment,
protest,
demand
for
payment
and
notice
of
default
or
nonpayment
to
or
upon
the
Affiliate
Borrowers
or
the
Guarantor
with
respect
to
the
Obligations.
The
Guarantor
understands
and
agrees
that
this
Guarantee
shall
be
construed
as
a
continuing,
absolute
and
unconditional
guarantee of payment without regard to (a) the validity, regularity or enforceability of the Credit
Agreement, the Note or any other Loan Document, any of the Obligations or any other collateral
security therefor or guarantee or right of offset with respect thereto at any time or from time to
time
held
by
the
Lender,
(b)
any
defense,
set-off
or
counterclaim
(other
than
a
defense
of
payment of performance) which may at any time be available to or be asserted by the Affiliate
Borrowers against the Lender, or (c) any other circumstance whatsoever (with or without notice
to
or
knowledge
of
any
Affiliate
Borrower
or
the
Guarantor)
which
constitutes,
or
might
be
construed
to
constitute,
an
equitable
or
legal
discharge
of
any
Affiliate
Borrower
for
the
Obligations, or of the Guarantor under this Guarantee, in bankruptcy or in any other instance.
When
pursuing
its
rights
and
remedies
hereunder
against
the
Guarantor,
the
Lender
may,
but
shall
be
under
no
obligation
to,
pursue
such
rights
and
remedies
as
it
may
have
against
any
Affiliate
Borrower
or
any
other
Person
or
against
any
collateral
security
or
guarantee
for
the
Obligations or any right of offset with respect thereto, and any failure by the Lender to pursue
such other rights or remedies or to collect any
payments from any Affiliate Borrower or any such
other Person or to realize upon any such collateral security or guarantee or to exercise any such
right of offset, or any release of any Affiliate Borrower or any such other Person or any such
collateral
security,
guarantee
or
right
of
offset, shall
not
relieve
the
Guarantor
of
any
liability
hereunder,
and
shall
not
impair
or
affect
the
rights
and
remedies,
whether
express,
implied
or
available as a matter of law, of the Lender against
the Guarantor.
This Guarantee shall remain in
full force and effect and be binding in accordance with and to the extent of its terms upon the
Guarantor and the successors and assigns thereof, and shall inure to be benefit of the Lender, and
its
respective
successors,
indorsees,
transferees
and
assigns,
until
all
the
Obligations
and
the
obligations of the Guarantor under this Guarantee shall have been satisfied by payment in full
and
the
Commitments
shall
be
terminated,
notwithstanding
that
from
time
to
time
during
the
term of the Credit Agreement the Affiliate Borrowers, individually or collectively, may be free
from any
Obligations.
7.
Reinstatement.
Th
