GUARANTEE
Exhibit
10.92
GUARANTEE,
dated as of June
6,
2006, made by U-HAUL INTERNATIONAL, INC. (the “Guarantor”),
in
favor of BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK BRANCH and other lenders
party
to
the Credit Agreement from time to time the “Lenders”
and
the
“Lender
Parties”)
and
BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK BRANCH, as administrative agent
(the “Administrative
Agent”
and
together with the Lenders, the “Lender
Parties”),
parties to the Credit Agreement referred to below.
RECITALS
Pursuant
to the Credit Agreement, dated as of June
6,
2006 (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, BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK BRANCH as
Administrative Agent and the Lenders, the Lenders have agreed to make loans
to
the Borrowers upon the terms and subject to the conditions set forth therein,
such loans to be evidenced by the Note issued by the Borrowers 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
Lenders 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
Parties.
NOW,
THEREFORE, in consideration of the premises and to induce the Lenders to enter
into the Credit Agreement and make the loans to the Borrowers, under the Credit
Agreement, the Guarantor hereby agrees with the Lender Parties as
follows:
Defined
Terms.
Unless
otherwise defined herein, terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
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.
The
meanings given to terms defined herein shall be equally applicable to both
the
singular and plural forms of such terms.
The
Guarantor hereby, unconditionally and irrevocably, guarantees to the Lender
Parties and their respective successors, indorsees, transferees and assigns,
the
prompt and complete payment and performance by each of U-Haul Sales &
Leasing 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.
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 event exceed the amount which can be guaranteed by the Guarantor
under applicable federal and state laws relating to the insolvency of
debtors.
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 any Lender Party 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.
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 any Lender Party
hereunder.
No
payment or payments made by any Borrower, the Guarantor, any other guarantor
or
any other Person or received or collected by any Lender Party 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.
The
Guarantor agrees that whenever, at any time, or from time to time, it shall
make
any payment to the Lender Parties on account of its liability hereunder, it
will
notify the Lender Parties in writing that such payment is made under this
Guarantee for such purpose..
Right
of Set-off.
The
Guarantor hereby irrevocably authorizes each Lender Party 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 such Lender Party to or for the credit
or the account of the Guarantor, or any part thereof in such amounts as such
Lender Party may elect, against and on account of the obligations and
liabilities of the Guarantor to such Lender Party hereunder and claims of every
nature and description of such Lender Party against the Guarantor, in any
currency, whether arising hereunder, under the Credit Agreement, the Note,
any
Loan Documents or otherwise, as such Lender Party may elect, whether or not
such
Lender Party has made any demand for payment and although such obligations,
liabilities and claims may be contingent or unmatured. Each Lender Party shall
notify the Guarantor promptly of any such set-off and the application made
by
such Lender Party, provided
that the
failure to give such notice shall not affect the validity of such set-off and
application. The rights of each Lender Party under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) which each Lender Party may have.
No
Subrogation.
Notwithstanding any payment or payments made by the Guarantor hereunder or
any
set-off or application of funds of the Guarantor by any Lender Party, the
Guarantor shall not be entitled to be subrogated to any of the rights of any
Lender Party against the Affiliate Borrowers or any other guarantor or any
collateral security or guarantee or right of offset held by any Lender Party
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 Parties 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 Parties, segregated from other
funds of the Guarantor, and shall, forthwith upon receipt by the Guarantor,
be
turned over to the Lender Parties in the exact form received by the Guarantor
(duly indorsed by the Guarantor to each Lender Party, if required), to be
applied against the Obligations, whether matured or unmatured, in such order
as
the Lender Parties may determine.
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, (a) any demand for payment of any of the Obligations
made by any Lender Party may be rescinded by such party and any of the
Obligations continued, (b) 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 Parties, (c) 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 Parties may deem advisable from time to time,
and (d) any collateral security, guarantee or right of offset at any time held
by any Lender Party for the payment of the Obligations may be sold, exchanged,
waived, surrendered or released. No Lender Party shall have any obligation
to
protect, secure, perfect or insure any Lien at any time held by it as security
for the Obligations or for this Guarantee or any property subject thereto.
When
making any demand hereunder against the Guarantor, each Lender Party may, but
shall be under no obligation to, make a similar demand on the Affiliate
Borrowers or any other guarantor, and any failure by any Lender Party 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 any Lender Party against the Guarantor.
For
the purposes hereof “demand” shall include the commencement and continuance of
any legal proceedings.
Guarantee
Absolute and Unconditional.
The
Guarantor waives (i) any and all notice of the creation, renewal, extension
or
accrual of any of the Obligations, (ii)notice of or proof of reliance by each
Lender Party upon this Guarantee and (iii) acceptance of this Guarantee by
any
Lender Party. 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 Parties 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 any Lender Party,
(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 any Lender Party, 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, each
Lender Party 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 any Lender Party 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 such Lender Party 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 each Lender
Party, 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.
Reinstatement.
This
Guarantee shall continue to be effective, or be reinstated, as the case may
be,
if at any time payment, or any part thereof, of any of the Obligations is
rescinded or must otherwise be restored or returned by the Lender Parties upon
the insolvency, bankruptcy, dissolution, liquidation or reorganization of any
Affiliate Borrower or the Guarantor, or upon or as a result of the appointment
of a receiver, intervenor or conservator of, or trustee or similar officer
for,
any Affiliate Borrower or the Guarantor or any substantial part of its property,
or otherwise, all as though such payments had not been made.
Not
Affected by Bankruptcy.
Notwithstanding any modification, discharge or extension of the Obligations
or
any amendment, modification, stay or cure of each Lender Party's rights which
may occur in any bankruptcy or reorganization case or proceeding against any
Affiliate Borrower, whether permanent or temporary, and whether or not assented
to by each Lender Party, the Guarantor hereby agrees that it shall be obligated
hereunder to pay and perform the Obligations and discharge its other obligations
in accordance with the terms of the Obligations and the terms of this Guarantee.
The Guarantor understands and acknowledges that, by virtue of this Guarantee,
it
has specifically assumed any and all risks of a bankruptcy or reorganization
case or proceeding with respect to any or all Affiliate Borrowers. Without
in
any way limiting the generality of the foregoing, any subsequent modification
of
the Obligations in any reorganization case concerning any Affiliate Borrower
shall not affect the obligation of the Guarantor to pay and perform the
Obligations in accordance with the original terms thereof.
Payments.
The
Guarantor hereby guarantees that payments hereunder will be paid to each Lender
Party without set-off or counterclaim in U.S. Dollars at the office of each
Lender Party, as applicable, as specified in Section 12.01 of the Credit
Agreement.
Notices.
All
notices, requests and demands to or upon each Lender Party or the Guarantor
to
be effective shall be in writing (or by telex, fax or similar electronic
transfer confirmed in writing) and shall be deemed to have been duly given
or
made (1) when delivered by hand or (2) if given by mail, when deposited in
the
mails by certified mail, return receipt requested, or (3) if by telex, fax
or
similar electronic transfer, when sent and receipt has been confirmed, addressed
as follows:
if
to
Bayerische Hypo- und Vereinsbank AG, New York Branch, as Lender or as
Administrative Agent, at its address or transmission number for notices as
provided in Section 12.01 of the Credit Agreement;
if
to any
other Lender, at its address or transmission number for notices as provided
in
Section 12.01 of the Credit Agreement; and
if
to the
Guarantor, at its address or transmission number for notices set forth under
its
signature below.
Each
Lender Party and the Guarantor may change its address and transmission numbers
for notices by notice in the manner provided in this Section.
Severability.
Any
provision of this Guarantee which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of
such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in
any
other jurisdiction.
Integration.
This
Guarantee represents the agreement of the Guarantor with respect to the subject
matter hereof and there are no promises or representations by any Lender Party
relative to the subject matter hereof not reflected herein.
Amendments
in Writing; No Waiver; Cumulative Remedies.
None
of
the terms or provisions of this Guarantee may be waived, amended, supplemented
or otherwise modified except by a written instrument executed by the Guarantor
and each Lender Party, provided that any provision of this Guarantee may be
waived by the Lender Parties in a letter or agreement executed by the Lender
Parties or by telex or facsimile transmission from the Lender
Parties.
Each
Lender Party shall not by any act (except by a written instrument pursuant
to
Section 13(a) hereof), delay, indulgence, omission or otherwise be deemed to
have waived any right or remedy hereunder or to have acquiesced in any default
or Event of Default or in any breach of any of the terms and conditions hereof.
No failure to exercise, nor any delay in exercising, on the part of any Lender
Party, any right, power or privilege hereunder shall operate as a waiver
thereof. No single or partial exercise of any right, power or privilege
hereunder shall preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. A waiver by any Lender Party of any
right or remedy hereunder on any one occasion shall not be construed as a bar
to
any right or remedy which such Lender Party would otherwise have on any future
occasion.
The
rights and remedies herein provided are cumulative, may be exercised singly
or
concurrently and are not exclusive of any other rights or remedies provided
by
law.
Section
Headings.
The
section headings used in this Guarantee are for convenience of reference only
and are not to affect the construction hereof or be taken into consideration
in
the interpretation hereof.
Successors
and Assigns.
This
Guarantee shall be binding upon the successors and assigns of the Guarantor
and
shall inure to the benefit of each Lender Party and its successors and
assigns.
GOVERNING
LAW.
THIS
GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
Submission
To Jurisdiction; Waivers.
The
Guarantor hereby irrevocably and unconditionally:
submits
for itself and its property in any legal action or proceeding relating to this
Guarantee and the other Loan Documents to which it is a party, or for
recognition and enforcement of any judgment in respect thereof, to the
non-exclusive general jurisdiction of the courts of the State of New York,
the
courts of the United States of America for the Southern District of New York,
and appellate courts from any thereof;
consents
that any such action or proceeding may be brought in such courts and waives
any
objection that it may now or hereafter have to the venue of any such action
or
proceeding in any such court or that such action or proceeding was brought
in an
inconvenient court and agrees not to plead or claim the same;
agrees
that service of process in any such action or proceeding may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to the Guarantor at its address set
forth under its signature below or at such other address of which the Lender
Parties shall have been notified pursuant hereto;
agrees
that nothing herein shall affect the right to effect service of process in
any
other manner permitted by law or shall limit the right to xxx in any other
jurisdiction; and
waives,
to the maximum extent not prohibited by law, any right it may have to claim
or
recover in any legal action or proceeding referred to in this Section any
special, exemplary, punitive or consequential damages.
Acknowledgments.
The
Guarantor hereby acknowledges that:
it
has
been advised by counsel in the negotiation, execution and delivery of this
Guarantee and the other Loan Documents to which it is a party;
no
Lender
shall have any fiduciary relationship with or duty to the Guarantor arising
out
of or in connection with this Guarantee or any of the other Loan Documents
to
which it is a party, and the relationship between the Guarantor and the
Affiliate
Borrowers
on the
one hand, and the Guarantor and the Lender Parties, on the other hand, in
connection herewith or therewith is solely that of debtor and creditor;
and
no
joint
venture is created hereby or by the other Loan Documents or otherwise exists
by
virtue of the transactions contemplated hereby among the Guarantor, the
Affiliate
Borrowers,
and
any Lender Party.
WAIVER
OF JURY TRIAL.
EACH
GUARANTOR HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY
LEGAL ACTION OR PROCEEDING RELATING TO THIS GUARANTEE OR ANY OTHER LOAN DOCUMENT
AND FOR ANY COUNTERCLAIM THEREIN.
[Signature
Page Follows]
IN
WITNESS WHEREOF, each of the undersigned has caused this Guarantee to be duly
executed and delivered by its duly authorized officer as of the day and year
first above written.
U-HAUL
INTERNATIONAL, INC.
By: ______________________
Name:
Title:
Address
for Notices:
0000
Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxx 00000
Tel: (000)
000-0000
Fax: (000)
000-0000
|
Date:
June 6, 2006
ACCEPTED
AND AGREED:
BAYERISCHE
HYPO- UND VEREINSBANK AG, NEW YORK BRANCH, as the Administrative
Agent, on
behalf of itself and each Lender
By: ______________________
Name:
Title:
By: ______________________
Name:
Title:
|
