Exhibit 10.65
EXECUTION COPY
NON-EXONERATION AGREEMENT
THIS NON-EXONERATION AGREEMENT (this "AGREEMENT") is made as
of the ___ day of February, 2003 by AMERCO, a Nevada Corporation (the "SUPPORT
PARTY") in favor of the Administrative Agent (as defined below) for the benefit
of the Lenders (as defined below).
RECITALS
A. Reference is hereby made to (i) that certain Amended
and Restated Credit Agreement, dated the date hereof (the "AMENDED CREDIT
AGREEMENT"), among PRIVATE MINI STORAGE REALTY, L.P., a Texas limited
partnership (the "BORROWER"), STORAGE REALTY L.L.C., a Texas limited liability
company and general partner of the Borrower, the financial institutions listed
on Schedule 1 hereto (together with each financial institution that becomes a
"Lender" pursuant to Section 9.04 of the Amended Credit Agreement, collectively,
the "LENDERS"), JPMORGAN CHASE BANK, as administrative agent for the benefit of
the Lenders (in such capacity, the "ADMINISTRATIVE AGENT") and X.X. XXXXXX
SECURITIES INC., as sole bookrunner and sole lead arranger; and (ii) that
certain Support Party Agreement, dated as of December 30, 1997 (the "SUPPORT
PARTY AGREEMENT"), entered into by the Support Party and the Borrower in favor
of the Administrative Agent for the benefit of the Lenders. Capitalized terms
used in this Agreement and not otherwise defined herein have the meanings
assigned to them in the Amended Credit Agreement.
B. As a result of an event of default under Section 7(m)
of the Existing Credit Agreement (the "CREDIT AGREEMENT DEFAULT"), the
Administrative Agent exercised the Lenders' rights on their behalf to declare
the obligations of the Borrower under the Existing Credit Agreement immediately
due and payable. The Borrower did not pay the amounts due by their due date.
Pursuant to Section 2.1(a)(ii)(y) of the Support Party Agreement, the
Administrative Agent by its letter dated December 16, 2002 (the "EXERCISE
LETTER") exercised the Lenders' option (the "LOAN PURCHASE OPTION") on their
behalf to require the Support Party to purchase the right, title and interest of
the Lenders in and to their respective Commitments (as such term is defined in
the Existing Credit Agreement) and Revolving Credit Exposures (as such term is
defined in the Existing Credit Agreement) for an amount equal to the principal
of the Revolving Credit Exposures plus accrued interest thereon and fees and
other obligations of the Borrower. The Support Party failed to timely purchase
obligations pursuant to the Loan Purchase Option as required by the Exercise
Letter and defaulted under the Support Party Agreement (the "SPA DEFAULT").
C. Notwithstanding the existence and continuance of the
SPA Default, the Borrower has requested that the Administrative Agent and the
Lenders amend and restate the Existing Credit Agreement by entering into the
Amended Credit
Agreement and thereby effectuate a cure of the Credit Agreement Default as to
the Borrower. The Support Party has an economic interest in the transactions
contemplated by the Amended Credit Agreement, including, without limitation, the
effectuation of a cure of the Credit Agreement Default, as to the Borrower and,
accordingly, the Support Party has also requested that the Administrative Agent
and the Lenders amend and restate the Existing Credit Agreement by entering into
the Amended Credit Agreement and has advised the Administrative Agent that it
consents thereto. The Administrative Agent and the Lenders are willing to enter
into the Amended Credit Agreement and effectuate a cure of the Credit Agreement
Default as to the Borrower, provided that the Support Party acknowledges and
agrees that the obligation to perform the Loan Purchase Option has ripened and
that the SPA Default remains outstanding, notwithstanding the Amended Credit
Agreement and that the SPA Default is due, owing and unpaid. Therefore, as
consideration for the Administrative Agent and the Lenders entering into the
Amended Credit Agreement, the Support Party is providing to the Administrative
Agent this Agreement pursuant to Section 4.01(a) of the Amended Credit
Agreement.
CONFIRMATION OF OBLIGATIONS
The Support Party hereby confirms that, (a) the Support
Party's obligation to purchase the Commitments and the Revolving Credit
Exposures has fully ripened and is in full force and effect, (b) the Support
Party consents to the Lenders amending and restating the Existing Credit
Agreement by entering into the Amended Credit Agreement, and (c) despite (i) the
effectuation of a cure of the Credit Agreement Default as to the Borrower, (ii)
the change in the Revolving Credit Exposures from revolving loans to term loans
under the Amended Credit Agreement and (iii) all other changes in the terms of
the obligations of the Borrower to the Lenders under the Amended Credit
Agreement: (x) the SPA Default consisting of the obligation of the Support Party
to purchase the Commitments and Revolving Credit Exposures (now represented by
the Loans, including all accrued interest thereon and all fees and other
obligations of the Borrower under the Amended Credit Agreement) as required by
the Administrative Agent's exercise of the Loan Purchase Option remains a
default and is a valid and binding obligation that is due, owing and unpaid
under Article II of the Support Party Agreement; (y) the Support Party Agreement
is not terminated by the execution of the Amended Credit Agreement and (z) all
obligations of the Support Party under the Support Party Agreement continue to
exist and remain valid, binding, and outstanding with respect to the Amended
Credit Agreement. Any payment that the Support Party makes with respect to the
Support Party Default shall constitute a ratable purchase of the Loans under the
Amended Credit Agreement, and shall be subordinated to the rights of the Lenders
in accordance with Sections 2.1(b) and 2.8 of the Support Party Agreement. The
obligations confirmed under this paragraph are confirmed subject to and in
accordance with the terms of the Support Party Agreement, except to the extent
that the Support Party's confirmation of those obligations under this paragraph
are inconsistent with the Support Party Agreement, in which case the terms of
this paragraph shall control. Notwithstanding anything to the contrary set forth
herein, the Support Party's obligations to the Lenders in respect of the SPA
Default are limited by and subject to the provisions in that certain Standstill
Agreement of even date herewith by and among the Support Party, the
Administrative Agent and the Lenders pursuant to which, inter alia, the Lenders
have agreed to forebear
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temporarily from exercising their rights and remedies in respect of the SPA
Default and certain other Existing Defaults (as defined therein).
REPRESENTATIONS AND WARRANTIES OF SUPPORT PARTY
The Support Party represents and warrants to the
Administrative Agent for the benefit of the Lenders that:
x. Xxxxxx. The Support Party has the power and authority
to execute and deliver this Agreement and to carry out the transactions
contemplated herein and in the Support Party Agreement.
b. Authorization; Enforceability. The Support Party has
duly executed and delivered this Agreement. This Agreement constitutes a
legal, valid and binding obligation of the Support Party, 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.
c. Obligations Ripened. The Support Party's obligation
to purchase the Commitments and Revolving Credit Exposures is fully ripened
and the Support Party has no defenses thereto.
d. Governmental Approvals; No Conflicts. The execution
and delivery of this Agreement (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, (b) will not violate any applicable law, statute, rule or regulation
or the charter, by-laws or other organizational documents of the Support Party
(or its subsidiaries) or any order, writ, ruling, injunction or decree of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, agreement or other instrument binding upon the Support Party (or
its subsidiaries) or its assets, or give rise to a right thereunder to require
the Support Party (or its subsidiaries) to make any payment, and (d) will not
result in the creation or imposition of any Lien on any asset of the Support
Party (or its subsidiaries).
e. Representations Bringdown. Except as otherwise
disclosed in writing to the Administrative Agent, as of the date of and after
giving effect to this Agreement, all representations and warranties set forth
in the Support Party Agreement are true and correct as if made again on and as
of such date (except those, if any, which by their terms specifically relate
only to a different date).
f. Lenders' Reliance. The Support Party acknowledges
that the Lenders, in entering into the Amended Credit Agreement, are relying
on the Support Party's representations made herein.
MISCELLANEOUS
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a. Release and Waiver. Each of the Borrower and the Support
Party hereby releases the Lenders, the Administrative Agent, and the Lenders'
and the Administrative Agent's officers, employees, representatives, agents,
counsel and directors from any and all actions, claims, demands, damages and
liabilities of whatever kind or nature, in law or in equity, now known or
unknown, suspected or unsuspected, to the extent that any of the foregoing
arises from any action or failure to act on or prior to the date hereof with
respect to matters arising under the Existing Credit Agreement or the
amendment and restatement thereto pursuant to the Amended Credit Agreement.
The Support Party hereby (i) reaffirms and incorporates herein
by reference Sections 2.3, 2.4 and 2.6 of the Support Party Agreement and (ii)
represents that it has no claims, counterclaims, offsets or defenses to the
Loan Documents or to the performance of its obligations thereunder, or if the
Support Party did have any such claims, counterclaims, offsets or defenses to
the Loan Documents or any transaction related to the Loan Documents, the same
are hereby waived, relinquished and released in consideration of each Lender's
and the Administrative Agent's execution and delivery of the Amended Credit
Agreement.
b. Execution in Counterparts. This Agreement may be executed
in counterparts, all of which taken together shall constitute one and the same
instrument.
c. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective authorized officers as of the day
and year first above written.
AMERCO ACKNOWLEDGED BY:
as Support Party
PRIVATE MINI STORAGE REALTY, L.P.
as Borrower
By: /s/ Xxxx X. Xxxxxx
____________________________
Name: Xxxx X. Xxxxxx By: STORAGE REALTY L.L.C., its
Title: Treasurer General Partner
By: /s/ Xxxx Xxxxxxxx
______________________
Name: Xxxx Xxxxxxxx
Title: President of Storage
Realty, LLC, which is
the general partner of
PMSRLP
ACKNOWLEDGED BY:
JPMORGAN CHASE BANK,
as Administrative Agent
By: /s/ Xxxx XxXxxxxx
__________________________
Name: Xxxx XxXxxxxx
Title: Managing Director
SCHEDULE I
LENDERS
Name of Lender
JPMorgan Chase Bank
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx XxXxxxxx
Facsimile: (000) 000-0000
Bank of America, N.A.
Xxxxxxx X. Xxxxx
000 X. Xxxxxx Xx. 0/X
Xxx Xxxxxxx, XX 00000
Mail Code: CA9-706-09-37
Facsimile: (000) 000-0000
and
Xxxxxx Xxxxxx
Banc of America
Strategic Solutions, Inc.
CA9-706-09-37
000 X. Xxxxxx Xx. 0/X
Xxx Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Dresdner Bank AG,
New York Branch and
Grand Cayman Branch
_________________________________
_________________________________
_________________________________
Attention: Xxxxxx Xxxxxxxx
Facsimile: 000-000-0000
KBC Bank N.V.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxx Xxxxxxx
Facsimile: (000) 000-0000
Xxxxx Fargo Bank, NA.
00 Xxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxx Xxxxx
Facsimile: (000) 000-0000
ABN AMRO Bank, N.V.
Financial Restructuring &
Recovery
000 Xxxx Xxx., 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxx
Facsimile: (000) 000-0000
Citicorp USA, Inc.
000 Xxxx Xxxxxx
0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxxx
Facsimile: (000) 000-0000
Fleet National Bank
000 Xxxx Xxxxxx
Xxxx Xxxx. XX EH 40221A
Xxxxxxxx, XX 00000
Attention: Xxxx X. XxxXxxxx
Facsimile: (000) 000-0000
Union Bank of California, N.A.
000 Xxxxxxxxxx Xxxxxx
0xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx
Facsimile: (000) 000-0000
Bank One, NA
0000 Xxxx Xxxxxx
0xx xxxxx, XX0-0000
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
Comerica Bank - Texas
000 Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attention: Xx. Xxx Xxxxxxxx
Facsimile: (000) 000-0000
Mizuho Corporate Bank, Ltd.
f/k/a The Fuji Bank, Limited,
Los Angeles Agency
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxx
Facsimile: (000) 000-0000
WestLB AG, New York Branch
Credit Department
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx III,
Associate
Director
Facsimile: (000) 000-0000
