GUARANTEE
Exhibit 10.3
Execution
Copy
GUARANTEE,
dated as of June 28, 2005, 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 Credit Agreement, dated as of June 28, 2005 (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.
(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 event exceed the amount which can be guaranteed by the Guarantor
under applicable federal and state 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 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 for the
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 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.
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 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.
8. Not
Affected by Bankruptcy.
Notwithstanding any modification, discharge or extension of the Obligations
or
any amendment, modification, stay or cure of the Lender'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
the
Lender, the Guarantor hereby agrees that it shall be obligated hereunder to
pay
and perform the Obligations and discharge their 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.
9. Payments.
The
Guarantor hereby guarantees that payments hereunder will be paid to the Lender
without set-off or counterclaim in U.S. Dollars at the office of the Lender
specified in Section 9.02 of the Credit Agreement.
10. Notices.
All
notices, requests and demands to or upon the Lender, 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:
(a) if
to the
Lender, at its address or transmission number for notices provided in
Section 12.01 of the Credit Agreement; and
(b) if
to the
Guarantor, at its address or transmission number for notices set forth under
its
signature below.
The
Lender and the Guarantor may change its address and transmission numbers for
notices by notice in the manner provided in this Section.
11. 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.
12. Integration.
This
Guarantee represents the agreement of the Guarantor with respect to the subject
matter hereof and there are no promises or representations by the Lender
relative to the subject matter hereof not reflected herein.
13. Amendments
in Writing; No Waiver; Cumulative Remedies.
(a) 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 the Lender, provided that any provision of this Guarantee may be waived
by
the Lender in a letter or agreement executed by the Lender or by telex or
facsimile transmission from the Lender.
(b) The
Lender shall not by any act (except by a written instrument pursuant to Section
18(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 the Lender, 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 the Lender of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the Lender
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.
14. 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.
15. Successors
and Assigns.
This
Guarantee shall be binding upon the successors and assigns of the Guarantor
and
shall inure to the benefit of the Lender and its successors and
assigns.
16. GOVERNING
LAW.
THIS
GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF NEW YORK.
17. Submission
To Jurisdiction; Waivers.
The
Guarantor hereby irrevocably and unconditionally:
(a) 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;
(b) 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;
(c) 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
shall have been notified pursuant hereto;
(d) 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
(e) 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.
18. Acknowledgments.
The
Guarantor hereby acknowledges that:
(a) 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;
(b) The
Lender has no fiduciary relationship with nor 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 Guarantor and Lender , on the other hand, in connection herewith
or therewith is solely that of debtor and creditor; and
(c) 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 the
Lender.
19. 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:
/s/ Xxxxx X. Xxxxxxx
Name:
Xxxxx X. Xxxxxxx
Title:
Assistant Treasurer
Address
for Notices:
0000
Xxxxx Xxxxxxx Xxxxxx
Xxxxxxx,
Xxxxxxx 00000
Tel: (000)
000-0000
Fax: (000)
000-0000
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Date:
June 29, 2005
ACCEPTED
AND AGREED:
XXXXXXX
XXXXX COMMERCIAL FINANCE CORP.
By:
/s/ Xxxxxxx X. Xxxxx
Name:
Xxxxxxx X. Xxxxx
Title:
Managing Directory
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