CREDIT AGREEMENT dated as of June 6, 2006 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, Guarantor and Custodian BAYERISCHE HYPO- UND VEREINSBANK...
Exhibit
10.90
dated
as of
June
6, 2006
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, Guarantor and Custodian
BAYERISCHE
HYPO- UND VEREINSBANK AG, NEW YORK BRANCH,
AND
OTHER LENDERS PARTY HERETO FROM TIME TO TIME
as
Lenders
and
BAYERISCHE
HYPO- UND VEREINSBANK AG, NEW YORK BRANCH,
as
Administrative Agent
(Truck
Term Loan Facility)
DEFINITIONS
Section
1.01. Defined Terms1
Section
1.02. Terms Generally14
Section
1.03. Accounting Terms; GAAP15
ARTICLE
II
THE
LOANS
Section
2.01. Commitments15
Section
2.02. The Notes16
Section
2.03. Making the Loans16
Section
2.04. Repayment of Loans; Evidence of Debt16
ARTICLE
III
SECURITY
Section
3.01. Security Interest17
Section
3.02. Release of Collateral17
ARTICLE
IV
SERVICING
AND MAINTENANCE
Section
4.01. Servicer/Manager; Monthly Settlement Report18
Section
4.02. Custody of Vehicle Files19
Section
4.03. Maintenance21
ARTICLE
V
FEES,
INTEREST, ACCOUNTS, PAYMENTS, ETC.
Section
5.01. Fees and Expenses21
Section
5.02. Interest on the Loans21
Section
5.03. Collections and Cash Flows22
Section
5.04. Payments to be Made23
Section
5.05. Optional Prepayments24
Section
5.06.[Reserved]24
Section
5.07. Illegality; Substituted Interest Rate, etc24
Section
5.08. Payments of Principal; Mandatory Prepayments25
Section
5.09. Increased Costs25
Section
5.10. Taxes26
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES
Section
6.01. Organization; Powers27
Section
6.02. Authorization; Enforceability27
Section
6.03. Governmental Approvals; No Conflicts28
Section
6.04. Financial Condition; No Material Adverse Change28
Section
6.05. Properties; Liens and Licenses28
Section
6.06. Litigation Matters29
Section
6.07. Compliance with Laws and Agreements29
Section
6.08. Investment and Holding Company Status29
Section
6.09. Taxes29
Section
6.10. ERISA29
Section
6.11. Disclosure29
Section
6.12. The Collateral30
Section
6.13. Liens on the Collateral30
Section
6.14. Eligible Vehicle Collateral30
Section
6.15. Insurance30
Section
6.16. Labor Matters30
Section
6.17. Security Documents31
Section
6.18. Margin Regulations31
ARTICLE
VII
CONDITIONS
Section
7.01. Effective Date31
Section
7.02. Each Loan33
ARTICLE
VIII
AFFIRMATIVE
COVENANTS
Section
8.01. Financial Statements and Other Information34
Section
8.02. Notices of Material Events35
Section
8.03. Information Regarding Collateral36
Section
8.04. Existence; Conduct of Business36
Section
8.05. Payment of Obligations36
Section
8.06. Maintenance of Properties and Fleet Owner Cash Flow36
Section
8.07. Insurance36
Section
8.08. Books and Records; Inspection Rights37
Section
8.09. Compliance with Laws and Agreements37
Section
8.10. Use of Proceeds37
Section
8.11. Further Assurances37
Section
8.12. Casualty37
NEGATIVE
COVENANTS
Section
9.01. Change in Control38
Section
9.02. Use of Collateral38
Section
9.03. Negative Pledge39
Section
9.04. Limitations on Fundamental Changes39
ARTICLE
X
EVENTS
OF
DEFAULT AND ACCELERATED AMORTIZATION
Section
10.01. Events of Default39
Section
10.02. Consequences of an Event of Default41
Section
10.03. Consequences of Accelerated Amortization Event41
ARTICLE
XI
THE
ADMINISTRATIVE AGENT
Section
11.01. The Administrative Agent42
ARTICLE
XII
MISCELLANEOUS
Section
12.01. Notices44
Section
12.02. Waivers; Amendments44
Section
12.03. Expenses; Indemnity; Damage Waiver45
Section
12.04. Successors and Assigns46
Section
12.05. Survival48
Section
12.06. Counterparts; Integration; Effectiveness48
Section
12.07. Severability48
Section
12.08. Right of Setoff49
Section
12.09. Governing Law; Jurisdiction; Consent to Service of Process49
Section
12.10. WAIVER OF JURY TRIAL50
Section
12.11. Headings50
Section
12.12. Confidentiality50
Section
12.13. Joint and Several Liability of the Borrowers50
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 Pool
Amortization Schedule
Exhibit
H Lender
Information
Exhibit
I Form
of
Dealership Contract
Exhibit
J Form
of
Rental Company Contract
Exhibit
K Borrower
Wire Instructions
ANNEXES
Annex
I Eligibility
Requirements
|
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TABLE
OF CONTENTS
(continued)
Page
CREDIT
AGREEMENT, dated as of June 6, 2006, (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 BAYERISCHE HYPO- UND
VEREINSBANK AG, NEW YORK BRANCH and other lenders party hereto from time to
time, as Lenders and BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK BRANCH,
as
Administrative Agent.
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:
"Accelerated
Amortization Event"
means
the Fleet Owner Cash Flow Ratio, at any time after the end of the 12th month
following the end of the Drawdown Period, equals or exceeds 4.0.
"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.
"Administrative
Agent"
means
HVB, together with its successors, indorsees, transferees and assigns, in such
capacity, on behalf of the Lenders.
"Advance
Rate"
means,
on any date of determination and for each Monthly Pool, the rate specified
in
Exhibit
G
hereto.
"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 a Lender and an assignee (with
the
consent of the Borrowers and the Administrative Agent if required by Section
12.04), and accepted by the Administrative Agent, in the form of Exhibit
A
or any
other form approved by the Administrative Agent.
"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,
on any date of determination and for each Monthly Pool, the aggregate Vehicle
Facility Value of all Eligible Vehicle Collateral in such Monthly Pool as of
such date; provided,
if an
Accelerated Amortization Event has occurred and is continuing, the Borrowing
Base will be the lesser of (i) the product of (x) 80% and (y) the
aggregate Black Book Value of the Eligible Vehicle Collateral in such Monthly
Pool, or (ii) the Vehicle Facility Value; provided,
further,
the
Borrowing Base for any Monthly Pool shall be zero at the earliest to occur
of
(i) the end of the 84th month following initial funding of such Monthly
Pool or (ii) the Termination 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 Administrative Agent.
"Borrowing
Base Deficiency"
means,
as of any date and with respect to any Loan, the amount, if any, by which the
outstanding principal amount of such Loan exceeds the Borrowing Base of the
related Monthly Pool.
"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 Administrative Agent.
"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) a
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 Lenders (or, for purposes of
Section 5.09(b), by any lending office of the Lenders or by each of 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
June 6, 2006.
"Code"
means
the Internal Revenue Code of 1986, as amended from time to time.
"Collateral"
has the
meaning set forth in the Security Agreement.
"Collection
Account"
means
the account established with the Collection Account Bank in the name of UHI,
subject to the Collection Account Control Agreement and bearing account No.
707634705.
"Collection Account
Bank"
means
JPMorgan Chase Bank, N.A. and its successors, or another depositary institution
mutually acceptable to the Administrative Agent and the Borrowers.
"Collection
Account Control Agreement"
means
that certain blocked account control agreement (shifting control), dated as
of
June 6, 2006, among the Collection Account Bank, UHI and the Administrative
Agent, relating to the Collection Account.
"Collection
Sub-Account"
means a
sub-account of the Collection Account bearing account No. 707634713
at the
Collection Sub-Account Bank in the name of UHI, within the sole dominion and
control of the Administrative Agent.
"Collection
Sub-Account Bank"
means
JPMorgan Chase Bank, N.A., and its successors, or another depository institution
acceptable to the Administrative Agent.
"Collection
Sub-Account Control Agreement"
means
that certain blocked account control agreement (automatic sweep/frozen account),
dated as of June 6, 2006, among the Collection Account Bank, UHI, the
Administrative Agent and the Lenders, relating to the Collection
Sub-Account.
"Collection
Sub-Account Deposit"
means
for any Deposit Date or Loan Date, the deposit to be made by UHI into the
Collection Sub-Account pursuant to Section 5.03(c), consisting of:
(a) with
respect to a deposit on a Deposit Date relating to the Payment Date next
following such Deposit Date, an amount equal to the sum of (i) the Targeted
Principal, if any, required to be paid on such Payment Date, (ii) all interest,
fees and expenses due to be paid on such Payment Date with respect to the
related Interest Period and (iii) all other Obligations due and payable on
or
prior to such Payment Date; and
(b) with
respect to a deposit on a Loan Date, an amount equal to the sum of (i) the
additional amount monthly Targeted Principal, if any, required to be paid on
the
Payment Date next following the date of such Loan, (ii) all additional interest,
fees and expenses due to be paid on such Payment Date with respect to the
related Interest Period and (iii) any other additional Obligations on or prior
to such Payment Date, in each case as a result of such new Loan.
"Collection
Sub-Account Failure"
means
the failure of UHI to make the required Collection Sub-Account Deposit by any
Deposit Date or Loan Date, as applicable (or, if unrestricted funds are already
on deposit in the Collection Sub-Account, the failure of UHI to deposit an
amount sufficient such that the unrestricted funds on deposit in the Collection
Sub-Account by such Deposit Date or Loan Date, as applicable, is at least equal
to the required Collection Sub-Account Deposit), which failure shall continue
unremedied for one Business Day.
"Commitment"
means,
the commitment, of each Lender to make Loans hereunder up to its respective
Lender 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 Administrative Agent and the
Servicer/Manager.
"Continuing
Directors"
means
the directors of AMERCO on the 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.
"Daily
Collection Account Deposit Amount"
means,
on any Business Day, an amount equal to the product of (i) a fraction, the
numerator of which is 1 and the denominator of which is 22, and (ii) an amount
equal to the Fleet Owner Cash Flows for the previous calendar
month.
"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, substantially in the form attached as Exhibit
I
hereto,
as the same may be updated from time to time by the Borrowers.
"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.
"Drawdown
Period"
shall
mean the period commencing on the Closing Date and ending on the earliest to
occur of (i) July 31, 2006; (ii) the date on which the aggregate principal
amount of Loans made hereunder from time to time equals the Facility Commitment
Amount; or (iii) the Termination Date on which an Event of Default has
occurred.
"Effective
Date"
means
the date on which the conditions specified in Section 7.01 are satisfied (or
waived in accordance with Section 12.02).
"Eligible
Vehicle Collateral"
means,
as of any date, a Vehicle pledged to the Administrative Agent 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
Borrowers, 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 Lenders to the Borrowers pursuant
to
this Agreement.
"Facility
Commitment Amount"
means
$50,000,000.
"Fee
Letter"
shall
mean the letter agreement, dated as of the Closing Date, by the Lenders, the
Administrative Agent 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.
"Fixed
Charge Ratio"
means,
at any time, the ratio obtained by dividing (i) EBITDAR of AMERCO for the
preceding twelve calendar months by (ii) the sum of (A) AMERCO'S lease
expenses for such twelve-month period plus (B) AMERCO's interest expenses for
such twelve-month period.
"Fleet
Owner Agreement"
means
the Fleet Owner Contract - Rental Trucks, dated as of June 23, 2005, between
U-Haul Leasing & Sales Co., as fleet owner, and UHI, as amended from time to
time.
"Fleet
Owner Cash Flow"
means,
for any calendar month, the amounts payable to U-Haul Leasing & Sales Co.
with respect to such calendar month pursuant to the Fleet Owner Agreement,
which
amount shall be the gross rental revenue collected from Eligible Vehicle
Collateral during such month, plus
all
damage waiver amounts collected with respect to the Eligible Vehicle Collateral
during such month, plus
all
payments collected with respect to a Warranty payment on the Eligible Vehicle
Collateral during such month minus
all
dealer and marketing company commissions, licensing fees, maintenance costs,
insurance expenses and other adjustments under the Dealership Contracts related
to such Eligible Vehicle Collateral paid during such month.
"Fleet
Owner Cash Flow Determination Date"
means,
with respect to any Fleet Owner Cash Flows collected during any calendar month,
the third Friday of the next succeeding calendar month, or if such day is not
a
Business Day, then the next succeeding Business Day.
"Fleet
Owner Cash Flow Ratio"
means
at any time, the ratio obtained by dividing (i) the aggregate amount of
Outstanding Loans by (ii) Fleet Owner Cash Flow for the immediately
preceding twelve-month period.
"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 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
obligor")
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 purchase 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 Lenders, in the form of Exhibit B.
"Hedge
Agreement"
has the
meaning specified in Section 7.01(m).
"Hedge
Breakage"
means
any amounts payable to the Hedge Provider in connection with the termination
or
reduction of the notional amount of a Hedge.
"Hedge
Provider"
means
HVB, as swap counterparty under the Hedge, or any other counterparty acceptable
to the Lenders.
"HVB"
means
Bayerische Hypo- und Vereinsbank AG, New York Branch, a German banking
corporation acting through its New York Branch.
"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 Closing
Date
to but excluding the first Payment Date.
"Interest
Rate"
means,
with respect to any Loan and any Interest Period, subject to Sections 5.07
and
10.03, a rate (in each case computed on the basis of the actual number of days
elapsed, but assuming a 360-day year) equal to:
(a) from
the Closing Date through the initial twelve months following the end of Drawdown
Period or any date on which the conditions specified in clause (b) or (c) are
not satisfied, LIBOR plus 1.75%; or
(b) at
any time after the twelfth month following the end of the Drawdown Period,
LIBOR
plus 1.50% provided the following conditions are satisfied:
(i) the
Fleet
Owner Cash Flow Ratio is less than 2.5;
(ii) EBITDA
of
AMERCO for the preceding twelve calendar months as reported to the Lenders
and
in a form satisfactory to the Lenders is at least $300,000,000; and
(iii) net
income before preferred stock dividends of AMERCO for the preceding twelve
calendar months (based upon the most recent audited annual or quarterly
financial statements of AMERCO on file with the Securities and Exchange
Commission) is at least $60 million; or
(c) at
any time after the twenty-fourth month following the end of the Drawdown Period,
LIBOR plus 1.25% provided the following conditions are satisfied:
(i) the
Fleet
Owner Cash Flow Ratio is less than 2.25;
(ii) EBITDA
of
AMERCO for the preceding twelve calendar months as reported to the Lenders
and
in a form satisfactory to the Lenders is at least $325,000,000;
(iii) net
income before preferred stock dividends of AMERCO for the preceding twelve
calendar months (based upon the most recent audited annual or quarterly
financial statements of AMERCO on file with the Securities and Exchange
Commission) is at least $75 million; and
(iv) the
Fixed
Charge Ratio of AMERCO at such time is greater than 2.1;
provided,
that if
an Accelerated Amortization Event has occurred and is continuing, the Interest
Rate will be increased by 1.00% per annum; provided further,
that if
an Event of Default has occurred and is continuing, the Interest Rate will
be
increased by 2.00% per annum.
"Lender
Commitment Amount"
means,
for each Lender, the amount specified on Exhibit H hereto.
"Lender
Commitment Percentage"
means,
for each Lender, the amount specified on Exhibit H hereto.
"Lenders"
means
HVB and each other Person executing an Assignment and Acceptance as a lender,
together with their respective successors 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
Administrative Agent) 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"
means
an advance made to the Borrowers by a Lender pursuant to this
Agreement.
"Loan
Date"
means
any date on which a Loan is made to the Borrowers by a Lender pursuant to this
Agreement.
"Loan
Documents"
means
this Agreement, the Notes, the Guarantee Agreement, the Collection Account
Control Agreement, the Collection Sub-Account Control Agreement, any Hedge
Agreement and the Security Documents.
"Loan
Parties"
means
the Guarantor, the Servicer/Manager and the Borrowers.
"Margin
Stock"
has the
meaning set forth in Regulation U of the Board.
"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 Administrative Agent in the
Collateral.
"Monthly
Pool"
means a
pool of Eligible Vehicle Collateral designated by the Servicer/Manager as
belonging to a specified pool and segregated by month of acquisition for the
purpose of financing such pool with the proceeds of a single Loan
hereunder.
"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.
"Note"
means a
Note, dated the Closing Date, executed by the Borrowers, payable to the order
of
a Lender, in the maximum principal amount of the applicable Lender Commitment
Amount, each in substantially the form of Exhibit F.
"Obligations"
means
all obligations secured under the Loan Documents.
"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).
"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 August 2006.
"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
Borrowers;
(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 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.
"Prepayment
Protection Period"
means
the period commencing on the Closing Date and ending on the date which is
forty-eight (48) calendar months from the last day of the Drawdown
Period.
"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.
"Purchase
Order"
means
an approved purchase order of the Borrower which shall specifically identify
the
Vehicles being financed pursuant to the terms hereof.
"Records
Location List"
has the
meaning set forth in Section 4.02(c).
"Related
Parties"
means,
with respect to any specified Person, such Person’s Affiliates and the
respective directors, officers, employees, agents and advisors of such Person
and such Person’s Affiliates.
"Rental
Company Contract"
means
an agreement between UHI, on the one hand, and a regional marketing and
administrative company Affiliate, on the other, substantially in the form
attached as Exhibit
J
hereto,
as the same may be updated from time to time by the Borrowers.
"Required
Lenders"
means,
Lenders, at any time, holding 66 2/3% of the principal balance of the
Outstanding Loans at such time.
"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 6, 2006, by and among the Borrowers
and
the Administrative Agent, on behalf of the Lenders, as may from time to time
be
amended, restated, supplemented and/or modified in accordance with the terms
thereof.
"Security
Documents"
means
the Security Agreement, the Collection Account Control Agreement, the Collection
Sub-Account Control 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 Lenders
(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 Lenders under such Regulation D or any
comparable regulation. 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 sum, for each Monthly
Pool, of the difference, if any, between the outstanding principal amount of
the
Loans funding such Monthly Pool on such Deposit Date and the Borrowing Base
of
such Monthly Pool as of the related Payment Date, without giving effect to
any
amounts in the Sub-Account; provided,
however,
that
upon the occurrence of an Event of Default, the Targeted Principal shall equal
the principal balance of all 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 earliest to occur of (i) 84 months from the most recent Monthly Pool
Funding or (ii) the occurrence of an Event of Default.
"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.
"UCC"
means
the Uniform Commercial Code as in effect in the State of New York as of the
date
hereof.
"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.
"Vehicle
Cost"
means
the sum of (i) the acquisition cost to U-Haul Leasing & Sales Co. directly
incurred in the purchase and assembly of the Eligible Vehicle Collateral as
evidenced by one or more Purchase Orders submitted by Borrowers to Lenders
and
(ii) any other costs directly incurred by Borrowers in the assembly of Eligible
Vehicle Collateral; provided,
that if
a Vehicle is determined by the Servicer/Manager to be lost, stolen or destroyed
in accordance with its usual and customary servicing practices, then the Vehicle
Cost of such Vehicle shall be deemed to be zero; provided,
further,
that if
the date on which a Vehicle is allocated to a Monthly Pool is more than 60
days
after the date on which such Vehicle was completed, the Vehicle Cost of such
Vehicle shall be an amount mutually agreed upon by the Borrowers and
Administrative Agent.
"Vehicle
Facility Value"
means,
on any date of determination, for any Eligible Vehicle Collateral or any Monthly
Pool of Eligible Vehicle Collateral, the product of (i) the applicable
Advance Rate for such date and such Monthly Pool, and (ii) the Vehicle Cost
of such Vehicle or such Monthly Pool.
"Vehicle
Files"
means,
with respect to each Vehicle, (i) the original Certificate of Title (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 Administrative Agent; and (ii) any and all other 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 Administrative Agent 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 Administrative
Agent.
"Warranty"
means
any warranty with respect to any Vehicle or any component parts thereof, whether
from the dealer, seller or manufacturer of such Vehicle or any third party
warranty provider, relating to the merchantability of such Vehicle or parts
or
the life or performance of such Vehicle or parts and all available remedies
thereunder, including payment, replacement, repair, substitution or other
remedies.
"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 the 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 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, each Lender agrees to make Loans
to the Borrowers during the Drawdown Period from time to time during the term
of
this Agreement in an aggregate principal amount not exceeding its respective
Lender Commitment Amount. Each Loan will be related to a Monthly Pool and Loan
Date pursuant to this Agreement. 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
and repaid in accordance with the terms of this Agreement. All Loans shall
be
full recourse to the Borrowers, jointly and severally.
Section
2.02. The
Notes.
(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 Notes. Each 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 its Note, endorse such
information on the schedule attached to such Note or any continuation thereof.
The failure of a Lender to make any such recordation shall not affect the
obligations of the Borrowers hereunder or under such 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 Administrative Agent a
completed Borrowing Request, together with a Borrowing Base Certificate
calculating the Borrowing Base for the Monthly Pool requested to be funded
by
such Loan and all other Monthly Pools as of the prior Business Day not later
than 3:00 p.m., New York City time, three (3) Business Days before the date
of the proposed Loan; provided
that the
Borrowers may make not more than one (1) request for Loans in any single
calendar month. Each such Borrowing Request shall be irrevocable and shall
be
delivered by telecopy to the Administrative Agent of a written Borrowing Request
in a form approved by the Administrative Agent and signed by the
Borrowers.
(b) Any
requested Loan shall relate to a single Monthly Pool, and shall be made ratably
by the Lenders in accordance with their respective Lender Commitment
Percentages. Each Loan shall, together with each other Loan relating to such
single Monthly Pool, be in an initial aggregate principal amount that is an
amount not less than the lesser of (i) $10,000,000 and (ii) the
difference between (x) the Facility Commitment Amount and (y) the sum
of the initial principal balances for all Outstanding Loans; provided
that in
no event shall any loan be in an initial aggregate principal amount of less
than
$5,000,000.
(c) The
Lenders 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
Lenders the then unpaid principal amount of each Loan as provided in
Section 5.08. Any outstanding principal of, or accrued and unpaid interest
on any Loans shall be due and payable in full on the Payment Date occurring
in
the 84th month following the month in which such Loan was made.
(b) The
Administrative Agent shall maintain in accordance with its usual practice an
account or accounts evidencing the indebtedness of the Borrowers to the Lenders
resulting from each Loan, including the amounts of principal and interest
payable and paid to the Lenders from time to time hereunder.
(c) The
Administrative Agent 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 Lenders 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 Administrative Agent 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
Administrative Agent, and its successors, indorsees, transferees and assigns,
as
agent on behalf of the Lenders, 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 amounts on deposit in the Collection Account or the
Collection Sub-Account, and 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
Administrative Agent or the Lenders 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
Article IV to the same extent as if this Agreement had not been executed,
(ii) the exercise by the Administrative Agent, 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
Administrative Agent 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 Administrative Agent for the benefit of the Lenders,
with respect to the Collateral shall terminate (i) with respect to any
Collateral released pursuant to Section 3.02(c), upon receipt by the
Administrative Agent and 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 Administrative Agent 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 Administrative Agent
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
Accelerated Amortization Event, Default or Event of Default has occurred and
is
continuing, the Borrowers may without the consent of the Administrative Agent
or
the Lenders, 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 Administrative
Agent and each Lender (i) written prior written notice of such release,
including an attached Borrowing Base Certificate with a calculation of the
Borrowing Base for each affected Monthly Pool 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
with respect to any Monthly Pool and detailing, if necessary, a deposit of
cash
into the Collection Sub-Account on such date representing a prepayment of
principal in an amount necessary to cause no Borrowing Base Deficiency to exist
and (C) no Accelerated Amortization Event, Default or Event of Default exists
on
the Facility.
ARTICLE
IV
SERVICING
AND MAINTENANCE
Section
4.01. Servicer/Manager;
Monthly Settlement Report.
(a) UHI
will
act as Servicer/Manager hereunder to provide administration and collection
services with respect to the Fleet Owner Cash Flows, 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 such time as a successor Servicer/Manager has accepted an
appointment hereunder in accordance with the terms hereof. UHI hereby makes
to
the Lenders, 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 Administrative Agent a Monthly Settlement
Report (including a Borrowing Base Certificate for each Monthly Pool) relating
to the preceding calendar month, which shall include Fleet Owner Cash Flow
data
from the second preceding calendar month.
Section
4.02. Custody
of Vehicle Files.
(a) The
Administrative Agent and the Lenders hereby revocably appoint UHI as Custodian
of the Vehicle Files, and UHI hereby confirms its acceptance of such
appointment, to act as the agent of the Administrative Agent and the Lenders
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) On
or
before any Loan Date, UHI shall provide an officer’s certificate to the
Administrative Agent and the Lenders 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 Administrative
Agent and the Lenders for the purposes set forth in this Section 4.02, including
the documents referred to herein. The Administrative Agent and the Lenders
are
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 Administrative
Agent and the Lenders, 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 Administrative Agent
and
the Lenders to identify all Vehicle Files and such related accounts, records
and
computer systems and to verify, if the Administrative Agent or the Lenders
so
elects, the accuracy of UHI’s record-keeping. UHI shall promptly report to the
Administrative Agent and each 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. UHI may, with the consent of the Administrative Agent and the
Required Lenders, which consent may be withheld for any reason in the sole
discretion of the Administrative Agent and the Required Lenders, 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
Administrative Agent and the Lenders, 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
Administrative Agent and the Lenders 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 Administrative
Agent
and the Lenders 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 Administrative Agent and the Lenders; (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, the Administrative Agent and the
Lenders 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 Administrative Agent and the Lenders, 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, the Administrative Agent and the Lenders, to verify the
accuracy of UHI’s and the Servicer/Manager’s record keeping, (C) promptly
report to the Administrative Agent and each 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 Administrative Agent and the Lenders, by thirty (30) days’
prior written notice; (ix) permit the Administrative Agent or the Lenders,
or
their 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 Administrative Agent or the Lenders, release as soon as
practicable the Vehicle Files, or any or all documents in any Vehicle File,
to
the Administrative Agent, or any of its agents or designees, as the case may
be,
at such place or places as Administrative Agent may designate.
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 Administrative Agent, 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) To
the
Administrative Agent on the date hereof, a one-time upfront structuring fee
as
defined in the Fee Letter;
(b) To
the
Administrative Agent, on the date hereof and thereafter, an agency fee as
defined in the Fee Letter;
(c) To
the
Lenders, ratably in accordance with their Lender Commitment Percentages, on
any
date during the Prepayment Protection Period on which a prepayment of
Outstanding Loans, that when taken together with all other prepayments, equal
or
exceeds seventy-five percent (75%) or more of all Outstanding Loans measured
at
the time of each prepayment, is made pursuant to Section 5.05, a prepayment
fee in an amount equal to the product of (i) the cumulative amount of all Loan
prepayments as of such date (to the extent such prepayments were not previously
the subject of a prepayment fee pursuant to this Section 5.01(c)), and (ii)
1.00%, together with any applicable Hedge Breakage; and
(d) To
the
Administrative Agent, as applicable, on the date hereof and thereafter promptly
upon receipt of an invoice therefor, all legal and due diligence expenses of
the
Administrative Agent 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 Administrative
Agent 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.
(c) If,
by
the terms of this Agreement or any Note, the Borrowers at any time are 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 each
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 Administrative Agent and
communicated to the Borrowers on each LIBOR Determination Date, and each such
determination shall be conclusive absent manifest error.
Section
5.03. Collections
and Cash Flows.
(a) UHI
shall
have established and shall maintain the Collection Account and the Concentration
Account. The Borrowers shall not change any Concentration Account or Collection
Account, or open any new Concentration Account or Collection Account, into
which
any revenues related to the Collateral may be deposited without the prior
written consent of the Administrative Agent; provided,
that
any such consent, with respect to any new or changed Concentration Account,
shall not be unreasonably withheld by the Administrative Agent.
(b) The
Servicer/Manager shall deposit or cause to be deposited all gross collections,
receipts and proceeds on all Collateral into the Concentration Account. Not
later than 3:00 p.m., New York City time on each Fleet Owner Cash Flow
Determination Date, the Servicer/Manager shall deposit or cause to be deposited
into the Collection Account in immediately available funds, an amount equal
to
Fleet Owner Cash Flows and Hedge payments for the immediately preceding month,
plus any other amounts that otherwise are or shall be part of the Collateral
(to
the extent not already deposited in full pursuant to Section 5.03(d), below).
So
long as no Accelerated Amortization Event, Default, Event of Default or
Collection Sub-Account Failure shall have then occurred and be continuing,
the
funds deposited in the Collection Account pursuant to this Section 5.03(b)
may
be transferred on the same Business Day at the direction of UHI. Neither the
Servicer/Manager nor any Borrower shall instruct the Concentration Account
Bank
in a manner inconsistent with this Section 5.03(b) or the Collection Account
Control Agreement without the prior written consent of the Administrative Agent.
(c) UHI
shall
deposit into the Collection Sub-Account, (i) not later than each Deposit
Date, the Collection Sub-Account Deposit for such month and (ii) not later
than each Loan Date, the Collection Sub-Account Deposit for such Loan Date
(or,
in each case, an amount sufficient so that after such deposit, together with
unrestricted funds already on deposit in the Collection Sub-Account, the total
amount of unrestricted funds on deposit in the Collection Sub-Account would
not
be less than the Collection Sub-Account Deposit). The Administrative Agent
shall
be entitled, and is hereby authorized and directed by the Servicer/Manager
and
the Borrowers, to withdraw any amounts on deposit in the Collection Sub-Account
on the next subsequent Payment Date and apply such amounts to the payment of
principal, interest and other Obligations due on such Payment Date. So long
as
no Accelerated Amortization Event, Default, Event of Default, Collection
Sub-Account Failure or Borrowing Base Deficiency shall have then occurred and
be
continuing, any excess funds in the Collection Sub-Account after such Payment
Date shall be transferred on the same Business Day to the Collection
Account.
(d) Upon
an
Event of Default or a Collection Sub-Account Failure, not later than 3:00 p.m.,
New York City time on each Business Day, the Servicer/Manager shall deposit
or
cause to be deposited into the Collection Account from funds on deposit in
the
Concentration Account, an amount equal to the Daily Collection Account Deposit
Amount. In addition, upon an Event of Default or a Collection Sub-Account
Failure, the Administrative Agent may exercise its rights under the Collection
Account Control Agreement, and thereafter, on any Payment Date (or at such
times
as the Administrative Agent may choose in its sole discretion) any amounts
in
the Collection Account and Collection Sub-Account shall be applied from the
Collection Account in the following order:
|
(i)
|
first,
to the payment of all interest, fees and expenses due and payable
to the
Lenders and the Administrative Agent, pro rata in accordance with
the
amounts owing under this Agreement;
|
|
(ii)
|
second,
to
the payment of amounts owing to the Hedge
Provider;
|
|
(iii)
|
third,
to
the payment of Targeted Principal payable to the Lenders under this
Agreement, pro rata in accordance with their Lender Commitment
Percentages;
|
|
(iv)
|
fourth,
to the payment in full of all other Obligations then due and payable
under
this Agreement; and
|
|
(v)
|
fifth,
to the Collection Sub-Account to be held until the next Payment Date
and
applied in accordance with this Section
5.03.
|
Section
5.04. Payments
to be Made.
(a) The
Borrowers shall make each payment (including principal of or interest on any
Loan or other amounts) or deposit hereunder and under any other Loan Document
not later than 3:00 p.m., New York City time, on each Deposit Date or Payment
Date, as applicable, in immediately available funds, without setoff, defense
or
counterclaim (i) in the case of interest, Targeted Principal, on the Deposit
Date immediately preceding 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 Lenders at such
place
as may be designated from time to time by the Lenders in writing to the
Borrowers. If any deposit or 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 deposit,
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 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, if applicable.
(c) If
on any
Deposit Date, all or any portion of the amounts required to be deposited in
the
Sub-Account pursuant to Section 5.03(b) are not deposited by or on behalf of
the
Borrowers by the time specified in the first sentence of Section 5.04(a), then
the Administrative Agent shall immediately have the right to take control of
the
Collection Account in accordance with the Collection Account Control Agreement.
Such remedy shall be in addition to and not exclusive of any other remedies
provided for under this Agreement.
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
Administrative Agent, provided that (i) the principal amount prepaid is at
least $1,000,000 (unless otherwise agreed to in writing by the Lenders),
(ii) the Borrowers pay to the Lenders, on the date of prepayment, accrued
unpaid interest on the amount so prepaid and (iii) the Borrowers shall pay
any
applicable Hedge Breakage. The Borrowers may notify the Administrative Agent
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, together with payment in full the fee described in Section
5.01(c), and the termination of the Facility, the Administrative Agent’s
interest in the Collateral shall be released in accordance with
Section 3.02 and the Commitment of the Lenders 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 a Lender to make or maintain any Loans at the Interest Rate
or
(ii) such 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 such Lender
to make or maintain Loans at the Interest Rate shall be suspended and such
Lender shall promptly notify the Borrowers and the Administrative Agent thereof
(by telephone confirmed in writing) and (b) each of such Lender's 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 such Lender 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, such Lender shall so
notify the Borrowers, and the obligation of such 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; Mandatory Prepayments.
(a) On
each
Payment Date, the Borrowers shall pay to the Lenders, an aggregate amount equal
to the Targeted Principal, if any, for such Payment Date. Such amount shall
be
allocated among the Lender's ratably in accordance with their respective Lender
Commitment Percentages.
(b) If
any
Monthly Settlement Report reports that a Borrowing Base Deficiency exists as
of
such date with respect to any Monthly Pool, then the Borrowers shall no later
than the next Business Day following delivery of such Monthly Settlement Report
pay to the Lenders an amount equal to the Borrowing Base Deficiency for such
Monthly Pool on such date, and any applicable Hedge Breakage. Such amount shall
be allocated among the Lender's ratably in accordance with their respective
Lender Commitment Percentages. 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 Lenders under the definition of Eligible Vehicle Collateral,
as reasonably determined by the Lenders in its sole discretion, the Vehicle
Facility Value of such Collateral as of such date of determination will be
deemed to be zero.
(c) Upon
discovery by any of the Loan Parties of a breach of any of the representations
and warranties set forth in Section 6.14, the party discovering such breach
shall give prompt written notice to the Borrowers and the Administrative Agent
and to the other parties. If such breach would, in and of itself, result in
a
Borrowing Base Deficiency with respect to any Monthly Pool, 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 Lenders an amount equal
to the amount of such Borrowing Base Deficiency, in the manner set forth in
Section 5.08(b). The foregoing obligation shall apply to all
representations and warranties of the Borrowers contained in Section 6.14
whether or not the Borrowers have knowledge of the breach at the time of the
breach or at the time the representations and warranties were made. Neither
the
Administrative Agent nor any Lender shall 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 Lenders (except any such reserve
requirement reflected in the Adjusted LIBO Rate); or (ii) impose on the Lenders
or the London interbank market any other condition affecting this Agreement
or
Loans made by the Lenders; and the result of any of the foregoing shall be
to
increase the cost to the Lenders 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 Lenders hereunder (whether of principal,
interest or otherwise), then the Borrowers shall, jointly and severally, pay
to
the Lenders such additional amount or amounts as will compensate the Lenders
for
such additional costs incurred or reduction suffered.
(b) If
a
Lender determines that any Change in Law regarding capital requirements has
or
would have the effect of reducing the rate of return on such Lender’s capital or
on the capital of such Lender’s holding company, as a consequence of this
Agreement or the Loans made by such Lender to a level below that which such
Lender or the Lender’s holding company could have achieved but for such Change
in Law (taking into consideration such Lender’s policies and the policies of
such Lender’s holding company with respect to capital adequacy), then from time
to time the Borrowers shall, jointly and severally, pay to such Lender such
additional amount or amounts as will compensate such Lender or such Lender’s
holding company for any such reduction suffered.
(c) A
certificate of a Lender setting forth the amount or amounts necessary to
compensate such Lender or its holding company, as the case may be, as specified
in paragraph (a) or (b) of this Section 5.09 and the basis therefor shall
be delivered to the Borrowers by each Lender and shall be conclusive absent
manifest error. The Borrowers shall pay each Lender the amount shown as due
on
any such certificate within 30 days after receipt thereof.
(d) Failure
or delay on the part of a Lender to demand compensation pursuant to this Section
shall not constitute a waiver of such Lender’s right to demand such
compensation; provided
that the
Borrowers shall not be required to compensate any Lender pursuant to this
Section for any increased costs or reductions incurred more than 90 days prior
to the date that the Administrative Agent or any Lender notifies the Borrowers
of the Change in Law giving rise to such increased costs or reductions and
of
any 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) each 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, indemnify a Lender, within 10 days
after
written demand therefor, for the full amount of any Taxes paid by such 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 a 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 Administrative Agent 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 Administrative
Agent.
(d) If
any
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 such 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 such Lender, agree to repay the amount paid
over to the Borrowers (plus any penalties, interest or other charges imposed
by
the relevant Governmental Authority) to such Lender in the event such Lender
is
required to repay such refund to such Governmental Authority. Nothing contained
in this Section 5.10 shall require such 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.
(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 survive the termination of this Agreement.
ARTICLE
VI
REPRESENTATIONS
AND WARRANTIES
Each
of
the Loan Parties represents and warrants to the Administrative Agent and each
Lender as of the Closing Date and on each Loan Date 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 Administrative Agent the consolidated balance sheet
and statements of income, equity and cash flows of AMERCO as of and for the
fiscal year ended March 31, 2005 and fiscal quarter ended December 31, 2005.
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
December 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.
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 Administrative Agent 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 Administrative Agent 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 any Person other than the
Administrative Agent.
With
respect to the Borrowers, the Security Agreement is effective to create in
favor
of the Administrative Agent, 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 Administrative Agent in the Collateral will be perfected under Article
9
of the UCC or the 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 Administrative Agent 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
Administrative Agent’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, and on each Loan 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 Administrative Agent.
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.
ARTICLE
VII
CONDITIONS
Section
7.01. Effective
Date.
The
obligations of the Lenders to make the initial Loans hereunder shall not become
effective until the date on which each of the following conditions is satisfied
(or waived in accordance with Section 12.02):
(a) The
Administrative Agent, or its counsel, 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 Administrative Agent (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
Administrative Agent shall have received a favorable written opinion of counsel
to the Loan Parties addressed to the Administrative Agent, each Lender and
the
Hedge Provider, dated the Closing Date and addressing such matters relating
to
the Loan Parties, the Loan Documents and the Transactions as the Administrative
Agent shall reasonably request, (in each case in form and substance reasonably
satisfactory to the Administrative Agent) including, without limitation,
opinions of counsel regarding general corporate matters, due authorization
and
execution, delivery, no conflict of laws or contracts and no material litigation
with respect to each Loan Party. Additionally, Administrative Agent shall have
received a favorable written opinion of outside counsel to the Loan Parties
addressed to the Administrative Agent and any Lender, dated the Closing Date
and
addressing matters as to enforceability under New York law as well as the
creation, perfection and priority of security interests in the Collateral (in
each case in form and substance reasonably satisfactory to the Administrative
Agent).
(c) The
Administrative Agent shall have received such documents and certificates as
the
Administrative Agent or its counsel may reasonably request relating to the
organization, existence and good standing of each Loan Party, the authorization
of the Transactions and any other legal matters relating to each Loan Party,
the
Loan Documents or the Transactions, all in form and substance satisfactory
to
the Administrative Agent and its counsel.
(d) The
Administrative Agent shall have received a certificate, dated the Closing Date
and signed by the Chief Executive Officer, President, a Vice President or a
Financial Officer of each Loan Party, confirming compliance with the conditions
set forth in paragraphs (a), (b) and (c) of Section 7.02 and that no Material
Adverse Change has occurred which has not been disclosed to the Administrative
Agent and any Lender.
(e) The
Administrative Agent 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.
(f) The
Administrative Agent shall be reasonably satisfied with the corporate and legal
structure and capitalization of each Loan Party, including the charter and
by-laws of each Loan Party and each agreement or instrument evidencing material
Indebtedness.
(g) The
Administrative Agent shall have received counterparts of the Guarantee Agreement
signed on behalf of each Loan Party thereto.
(h) The
Administrative Agent 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 Administrative
Agent that all documents and instruments, including UCC financing statements
and
Certificates of Title with respect to all Vehicles constituting Collateral,
required by law or reasonably requested by the Administrative Agent 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.
(i) The
Administrative Agent shall have received (i) the results of a search of the
UCC
(or equivalent) filings made with respect to the Borrowers in the jurisdictions
contemplated by the Security Agreement as of a date reasonably close to the
Closing Date and otherwise acceptable to the Administrative Agent in its sole
discretion and (ii) copies of the financing statements (or similar documents)
disclosed by such search and evidence reasonably satisfactory to the
Administrative Agent that the Liens indicated by such financing statements
(or
similar documents) are either Permitted Encumbrances or have been
released.
(j) The
Administrative Agent shall have received evidence satisfactory to it that the
insurance required to be maintained by the Borrowers pursuant to Section 8.07
is
in effect, and such insurance policies shall be in form, substance and insured
amount satisfactory to the Administrative Agent.
(k) Each
Lender shall have received an original Note, executed and delivered by the
Borrowers.
(l) The
Administrative Agent (i) shall have been given access to the management,
records, books of account, contracts and properties of the Loan Parties and
shall have received such financial, business and other information regarding
the
Loan Parties as the Administrative Agent shall have reasonably requested and
(ii) shall have completed their due diligence review of the Loan Parties and
shall be reasonably satisfied with the results of such review.
(m) The
Borrowers shall have entered into one or more forward starting swap agreements
to limit Borrowers’ interest exposure (each, a "Hedge
Agreement")
and
shall have assigned the Borrowers' rights to receive payments under such Hedge
to Lenders. Each such Hedge shall have been entered into with a Hedge
Provider.
The
Administrative Agent shall notify the Borrowers of the Effective Date, and
such
notice shall be conclusive and binding. Notwithstanding the foregoing, the
obligations of the Lenders 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 June 6, 2006
(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 Lenders to make Loans is subject to the satisfaction of the
following conditions:
(a) At
the
time of and immediately after giving effect to such Loans, 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 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 Loans, no Accelerated
Amortization Event, Default, Event of Default, Borrowing Base Deficiency or
Collection Sub-Account Failure shall have occurred and be
continuing.
(c) At
the
time of and immediately after giving effect to such Loans, no Material Adverse
Change shall have occurred.
(d) The
Borrowers shall have delivered to the Administrative Agent (i) a Borrowing
Request and a Borrowing Base Certificate, for each Monthly Period, calculated
as
of a date not more recent than three (3) Business Days prior to the date of
the
related Borrowing Request, in connection with such Loan showing no Borrowing
Base Deficiency; (ii) a certificate of the type required by Section
4.02(b), if applicable and (iii) one or more Purchase Orders identifying the
Vehicles in such Monthly Pool and such other information necessary to determine
Vehicle Cost, each in a form satisfactory to Administrative Agent.
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), and (c)
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 Administrative
Agent and each Lender that:
Section
8.01. Financial
Statements and Other Information.
The
Loan Parties shall furnish to the Administrative Agent:
(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 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 with 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 Administrative Agent
may
reasonably request; and
(g) provided
that the Administrative Agent is unable to obtain such other information from
a
publicly available source, promptly following any request therefore, 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 Administrative Agent written notice of the following
promptly upon obtaining knowledge thereof:
(i) the
occurrence of any Default or Accelerated Amortization Event;
(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 Administrative Agent 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 Administrative Agent 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 and Fleet Owner Cash Flow.
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. U-Haul Leasing & Sales Co. shall (i)
maintain the Fleet Owner Agreement in effect as a valid and existing obligation
of itself and its marketing Affiliates, (ii) update the Fleet Owner Agreement
from time to time as appropriate to reflect changes in the marketing Affiliates
party to the various Dealership Contracts and Rental Company Contracts and
(iii)
not without the prior written consent of the Administrative Agent, amend or
otherwise modify the Fleet Owner Agreement in a manner that would materially
and
adversely effect the amount of Fleet Owner Cash Flows payable to U-Haul Leasing
& Sales Co. thereunder.
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
Administrative Agent, with standard coverage and subject to deductibles and
with
reputable insurance companies, as may be reasonably required by the
Administrative Agent. If the Administrative Agent 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 Administrative
Agent to the Borrowers of a written request therefor, the Borrowers shall cause
the Administrative Agent 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
Administrative Agent, 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 to finance the purchase and
assembly of Eligible Vehicle Collateral (including the manufacture of the van
box of any Vehicle comprising Eligible Vehicle Collateral) occurring during
the
60 days immediately preceding the date of such Loan.
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 Administrative Agent 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
Administrative Agent, upon request, evidence reasonably satisfactory to the
Administrative Agent as to the perfection and priority of the Liens created
or
intended to be created by the Security Documents.
Section
8.12. Casualty.
(a) Each
Loan
Party shall furnish to the Administrative Agent prompt notice of any casualty
or
other damage to any portion of the Collateral having a value in excess of
$75,000
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 Administrative
Agent is authorized to collect such Net Proceeds and, if received by a Loan
Party, such Net Proceeds shall be deposited in the Collection Sub-Account.
All
such Net Proceeds retained by or paid over to the Administrative Agent shall
be
held by the Administrative Agent 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 Administrative Agent or deposited in the Collection
Sub-Account as provided above continue to be held by the Administrative Agent
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.
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 Administrative Agent and each 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 the Administrative Agent and each
Required 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 Borrowers’ 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 Borrowers’ business.
(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 Lenders hereunder, or (ii) to have a Material Adverse
Effect.
ARTICLE
X
EVENTS
OF DEFAULT AND ACCELERATED AMORTIZATION
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 or deposit
any principal of or interest (including any Borrowing Base Deficiency pursuant
to Article V, but not including any monthly Collection Sub-Account Deposit)
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; or the Borrowers
or the Servicer/Manager shall fail to deposit to the Collection Account any
Daily Collection Account Deposit Amount on the date and time such deposit is
required to be made pursuant to Section 5.03(d);
(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 Administrative Agent to the
Borrowers;
(d) any
Loan
Party shall fail to make any payment (whether of principal or interest and
regardless of amount) in respect of any Indebtedness in excess of $15,000,000,
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 Indebtedness in excess of $15,000,000
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 (e) 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 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) any
of
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 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 Administrative Agent or the Lenders under the Loan Documents, except
as a
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;
and
(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 (f), (g) or (h) of Section 10.01), 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 (f), (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 Administrative Agent, on behalf of the Lenders, shall have the right
to collect, receive, appropriate or realize upon the Collateral or otherwise
foreclose or enforce Administrative Agent’s security interests in any or all
Collateral in any manner permitted by the Security Agreement. Additionally,
if
an Event of Default shall have occurred and be continuing, no monies on deposit
in the Collection Account shall be released until the Principal Balance is
paid
in full. Further, if an Event of Default shall occur and be continuing, then,
and in every such event the Administrative Agent shall have the right to draw
upon the Guarantee. Notwithstanding the foregoing, if an Event of Default shall
occur and be continuing the Administrative Agent and each Lender may pursue
any
remedies available to it in order to seek repayment of the Principal Balance
in
full.
Section
10.03. Consequences
of Accelerated Amortization Event.
(a) Within
a
reasonable (at the discretion of the Administrative Agent) period of time
following an Accelerated Amortization Event, the Borrowers may elect, upon
prior
written notice to the Administrative Agent, to pledge additional Eligible
Vehicle Collateral under the Security Agreement and allocate such Eligible
Vehicle Collateral to one or more Monthly Pools, without borrowing additional
amounts hereunder, to satisfy the Fleet Owner Cash Flow Ratio requirement and
avoid an Accelerated Amortization Event; provided,
that if
the Borrowers elect to pledge additional Eligible Vehicle Collateral in
accordance with this Section 10.03(a), then from and after the date of such
election, the Interest Rate on all Outstanding Loans shall be LIBOR plus 2.00%
per annum for the remaining term of the Facility.
(b) Upon
the
occurrence of an Accelerated Amortization Event, (i) the Borrowing Base shall
be
reduced as provided herein; and (ii) the Lender may draw upon the Guarantee
(if
needed) to pay down the Outstanding Loans and avoid a Borrowing Base Deficiency.
ARTICLE
XI
THE
ADMINISTRATIVE AGENT
Section
11.01. The
Administrative Agent.
Each of
the Lenders hereby irrevocably appoints the Administrative Agent and authorizes
the Administrative Agent to take such actions on its behalf and to exercise
such
powers as are delegated to such Administrative Agent by the terms of the Loan
Documents, together with such actions and powers as are reasonably incidental
thereto. Without limiting the generality of the foregoing, the Administrative
Agent is hereby expressly authorized to execute any and all documents (including
releases) with respect to the Collateral and the rights of the secured parties
with respect thereto, as contemplated by and in accordance with the provisions
of this Agreement and the Security Documents.
The
financial institution serving as the Administrative Agent hereunder shall have
the same rights and powers in its capacity as a Lender as any other Lender
and
may exercise the same as though it were not an Administrative Agent, and such
financial institution and its Affiliates may accept deposits from, lend money
to
and generally engage in any kind of business with the Servicer, the Borrower
or
other Affiliate thereof as if it were not an Administrative Agent
hereunder.
The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in the Loan Documents. Without limiting the generality
of
the foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether an Event of Default
has
occurred and is continuing, (b) the Administrative Agent shall not have any
duty
to take any discretionary action or exercise any discretionary powers, except
discretionary rights and powers expressly contemplated hereby that such
Administrative Agent is required to exercise in writing by the Lenders (or
such
other number or percentage of the Lenders as shall be necessary under the
circumstances as provided in Section
11.02),
and
(c) except as expressly set forth in the Loan Documents, the Administrative
Agent shall not have any duty to disclose, nor shall it be liable for the
failure to disclose, any information relating to the Borrower that is
communicated to or obtained by the financial institution serving as
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken
by it
with the consent or at the request of the Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section
11.02)
or in
the absence of its own gross negligence or willful misconduct. The
Administrative Agent shall not be deemed to have knowledge of any Event of
Default unless and until written notice thereof is given to such Administrative
Agent by the Borrower or a Lender, and the Administrative Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with any Loan
Document, (ii) the contents of any certificate, report or other document
delivered thereunder or in connection therewith, (iii) the performance or
observance of any of the covenants, agreements or other terms or conditions
set
forth in any Loan Document, (iv) the validity, enforceability, effectiveness
or
genuineness of any Loan Document or any other agreement, instrument or document
or (v) the satisfaction of any condition set forth in Article
VII
in this
Agreement or elsewhere in any Loan Document, other than to confirm receipt
of
items expressly required to be delivered to such Administrative
Agent.
The
Administrative Agent shall be entitled to rely upon, and shall not incur any
liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing believed by it to be genuine
and to have been signed or sent by the proper person. The Administrative Agent
may also rely upon any statement made to it orally or by telephone and believed
by it to have been made by the proper person, and shall not incur any liability
for relying thereon. The Administrative Agent may consult with legal counsel
(who may be counsel for the Borrower), independent accountants and other experts
selected by it, and shall not be liable for any action taken or not taken by
it
in accordance with the advice of any such counsel, accountants or
experts.
The
Administrative Agent may perform any and all its duties and exercise its rights
and powers by or through any one or more sub-agents appointed by it. The
Administrative Agent and any such sub-agent may perform any and all its duties
and exercise its rights and powers by or through their respective Affiliates.
The exculpatory provisions of the preceding paragraphs shall apply to any such
sub-agent and to the Affiliates of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with
the
syndication of the credit facilities provided for herein as well as activities
as Administrative Agent.
Subject
to the appointment and acceptance of a successor Administrative Agent as
provided below, the Administrative Agent may resign at any time by notifying
the
Lenders and the Borrowers. Upon any such resignation, the Lenders shall have
the
right, in consultation with the Borrowers, to appoint a successor. If no
successor shall have been so appointed by the Lenders and shall have accepted
such appointment within 30 days after the retiring Administrative Agent
gives notice of its resignation, then the retiring Administrative Agent may,
on
behalf of the Lenders, appoint a qualified successor Administrative Agent which
shall be a financial institution with an office in New York, New York, or an
Affiliate of any such financial institution. Upon the acceptance of its
appointment as Administrative Agent hereunder by a successor, such successor
shall succeed to and become vested with all the rights, powers, privileges
and
duties of the retiring Administrative Agent, and the retiring Administrative
Agent shall be discharged from its duties and obligations hereunder. The fees
payable by the Borrowers to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the
Borrowers and such successor. After an Administrative Agent’s resignation
hereunder, the provisions of this Article
XI
and
Section 11.03
shall
continue in effect for the benefit of such retiring Administrative Agent, its
sub-agents and their respective Affiliates in respect of any actions taken
or
omitted to be taken by any of them while acting as Administrative
Agent.
Each
Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement. Each Lender also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it shall from time
to time deem appropriate, continue to make its own decisions in taking or not
taking action under or based upon this Agreement or any other Loan Document,
any
related agreement or any document furnished hereunder or
thereunder.
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, sent by telecopy, or sent by electronic mail
as
follows:
(a) if
to
U-Haul Leasing & Sales Co., to it at 0000 Xxxxxxxxx Xxx, Xxxx, XX
00000-0000, Attention: Xxxxx Xxxxxxx (email: xxxxxxxx@xxxxxx.xxx) (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 (email:
xxxxxxxx_xxxxxxx@xxxxx.xxx) (Facsimile No. (000) 000-0000);
(c) if
to
HVB, to it at the address specified on Exhibit
H;
(d) if
to any
other Lender, to it at the address specified on Exhibit
H;
and
(e) if
to the
Administrative Agent, to it at 000 Xxxx 00xx Xxxxxx Xxx Xxxx, Xxx Xxxx 00000,
Attention: Xxxxxxx Xxxxxxx (email: xxxxxxx_xxxxxxx@xxxxxxxxxxx.xxx) / Xxxxx
Xxxxxx (email: ),
(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
H
or
Exhibit
K
hereto,
as applicable, 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 Administrative Agent and any 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 Administrative Agent and
any 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 any 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
Administrative Agent and any 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,
the Required Lenders and the Administrative Agent 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
Required Lenders and the Administrative Agent; provided
that no
such agreement shall (i) increase the Commitment of any Lender without the
written consent of such Lender or the Administrative Agent, (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 each affected
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 Administrative
Agent and each affected Lender, (iv) change any of the provisions of this
Section without the written consent of the Administrative Agent and each 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 Administrative Agent and each 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 Administrative Agent and each
Lender.
Section
12.03. Expenses;
Indemnity; Damage Waiver.
(a) The
Borrowers shall pay (i) all costs and expenses incurred by the Administrative
Agent, including the reasonable fees, charges and disbursements of counsel
for
the Administrative Agent, 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 Administrative Agent and the Lenders, including the reasonable
fees, charges and disbursements of any counsel for the Administrative Agent
and
the Lenders, 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 Administrative Agent and the Lenders,
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 Administrative Agent and the Lenders, 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 Administrative
Agent and the Required Lenders (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 Administrative Agent and each Lender) any legal or equitable
right, remedy or claim under or by reason of this Agreement.
(b) Each
Lender may, with the consent of the Administrative Agent and 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 such assigning Lender
or
its successors or assigns, or an assignment of the entire remaining amount
of
such Lender’s Commitment or entire remaining Loans of such assigning Lender, 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 and the Administrative Agent 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, (iv) the assignee, if it shall not be a Lender hereunder prior
to
such assignment, shall pay an assignment fee in the amount of $3,500 to the
Administrative Agent, and (v) the assignee, if it shall not be a Lender
hereunder prior to such assignment, shall deliver to the Borrowers and the
Administrative Agent 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 5.07, 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) Each
Lender may, with the consent of the Administrative Agent and without the consent
of the Loan Parties, sell participations to one or more Persons (a "Participant")
in all
or a portion of such 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 5.07, 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 Lender.
(d) Each
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 such 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.
(e) The
Administrative Agent, in its capacity as administrative agent, may not assign
all or a portion of its rights and obligations as administrative agent under
this Agreement without the prior written consent of the Borrowers and the
Required Lenders. Such consent shall not be unreasonably withheld.
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 Lenders 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, 12.03 and 12.12 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 Administrative Agent or the Lenders 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 Lenders and
the
Administrative Agent and when the Lenders and the Administrative Agent 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 Administrative
Agent
and the Lenders and each of their respective Affiliates are hereby authorized
at
any time and from time 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 Administrative Agent and the Lenders or their respective Affiliates
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 Lenders, irrespective of whether or not the Lenders shall have made
any
demand under this Agreement and although such obligations may be unmatured.
The
rights of the Lenders under this Section are in addition to other rights and
remedies (including other rights of setoff) which the Lenders 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) Each
of
the Servicer/Manager, the Guarantor and each Borrower 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 Lenders or the Administrative Agent 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 Lenders and the
Administrative Agent 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 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
Lenders and the Administrative Agent agree 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 Lenders or the Administrative Agent 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 Lenders or the Administrative Agent 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 the 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 liable
to the Lenders and the Administrative Agent for all representations, warranties,
covenants, obligations and indemnities of the Borrowers hereunder.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the day and year first
above written.
U-HAUL
LEASING & SALES CO., as a Borrower
By:
Name:
Title:
U-HAUL
CO. OF ARIZONA, as a Borrower
By:
Name:
Title:
U-HAUL
INTERNATIONAL, INC., as a Borrower, as Servicer/Manager, Guarantor and as
Custodian
By:
Name:
Title:
BAYERISCHE
HYPO- UND VEREINSBANK AG, NEW YORK BRANCH, as a Lender
By:
Name:
Title:
By:
Name:
Title:
BAYERISCHE
HYPO- UND VEREINSBANK AG, NEW YORK BRANCH, as Administrative Agent
By:
Name:
Title:
By:
Name:
Title:
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 in the amount of $465 million.
2. U-Haul
International, Inc. is the guarantor of certain obligations under the $240
million, 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
million, 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.
Schedule
6.15
Insurance
Policies
AMERCO
Insurance Program
Liability
and Business Auto
EXHIBIT
A
[FORM
OF
ASSIGNMENT AND ACCEPTANCE]
ASSIGNMENT
AND ACCEPTANCE
Reference
is made to the Credit Agreement, dated as of June 6, 2006 (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, BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK
BRANCH, a German banking corporation, operating through its New York Branch,
as
a Lender, and BAYERISCHE HYPO- UND VEREINSBANK AG, NEW YORK BRANCH, as
Administrative Agent. 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, the Administrative
Agent 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.
|
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:
ACKNOWLEDGED
AND CONSENTED TO BY:
[_________________________]
as
Administrative Agent,
By:
Name:
Title:
EXHIBIT
B
[FORM
OF
GUARANTEE AGREEMENT]
EXHIBIT
C
FORM
OF
BORROWING REQUEST
_____________,
00__
Xxxxxxxxx
Xxxx- xxx Xxxxxxxxxxx XX, Xxx Xxxx Branch
000
Xxxx
00xx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
[________]
|
Re:
|
$50,000,000
Credit Agreement
|
Ladies
and Gentlemen:
The
undersigned are Responsible Officers of U-Haul Leasing & Sales Co., U-Haul
Co. of Arizona and U-Haul International, Inc. (collectively, the "Borrowers"),
and
are authorized to execute and deliver this Borrowing Request on behalf of the
Borrowers pursuant to the Credit Agreement, dated as of June 6, 2006 (as
amended, supplemented or modified from time to time, the "Agreement"),
among
the Borrowers, U-Haul International, Inc., as Servicer/Manager and Guarantor,
Bayerische Hypo- und Vereinsbank AG, New York Branch, a German banking
corporation, acting through its New York Branch ("HVB"),
as a
Lender and HVB, as Administrative Agent. Capitalized terms not otherwise defined
herein have the meanings ascribed thereto in the Agreement. The Borrowers hereby
request that Loans be made under the Agreement on __________, 20__ in the
aggregate amount of $__________. In connection with the foregoing, the
undersigned hereby certifies, on behalf of the Borrowers, as
follows:
(i) Each
of
the representations and warranties contained in Article Six of the Agreement
is
true and correct in all respects on and as of the date hereof as though made
as
of the date hereof and on the date of the Loan requested hereby, immediately
after giving effect to such Loan.
(ii) No
Default, Event of Default or Accelerated Amortization Event has occurred and
is
occurring. No Default, Event of Default, Accelerated Amortization Event,
Borrowing Base Deficiency or Collection Sub-Account Failure will exist as a
result of making the requested Loan.
(iii) Attached
hereto as Schedule I is a copy of the Borrowing Base Certificate calculated
as
of ______, 20__, together with an accompanying Vehicle Schedule.
(iv) Attached
hereto as Schedule II is the confirmation of receipt of the Custodian required
pursuant to Section 4.02(b) of the Agreement, if applicable.
(v) Attached
hereto as Schedule III is a calculation showing the Collection Sub-Account
Deposit, if any, required in connection with the requested Loan.
(vi) No
Material Adverse Change has occurred since [___________], 200__.
The
information supplied in the Schedules hereto is accurate as of the dates
specified therein.
U-HAUL
LEASING & SALES CO.
By:
Name:
Title:
U-HAUL
CO. OF ARIZONA
By:
Name:
Title:
U-HAUL
INTERNATIONAL, INC.
By:
Name:
Title:
EXHIBIT
D
[FORM
OF
BORROWING BASE CERTIFICATE]
|
Monthly
Analysis
|
||||
|
New
Truck Term Loan Facility
|
||||
|
Borrowing
Base Analysis
|
||||
|
Monthly
Pool #1:
|
[Date
of Funding]
|
|||
|
End
of Month
|
Number
of
Vehicles
|
Vehicle
Cost
|
Advance
Rate
|
Vehicle
Facility Value
|
|
1
|
98.33%
|
|||
|
2
|
96.67%
|
|||
|
3
|
95.00%
|
|||
|
4
|
93.33%
|
|||
|
5
|
91.67%
|
|||
|
6
|
90.00%
|
|||
|
7
|
88.33%
|
|||
|
8
|
86.67%
|
|||
|
9
|
85.00%
|
|||
|
10
|
83.33%
|
|||
|
11
|
81.67%
|
|||
|
12
|
80.00%
|
|||
|
13
|
78.75%
|
|||
|
14
|
77.50%
|
|||
|
15
|
76.25%
|
|||
|
16
|
75.00%
|
|||
|
17
|
73.75%
|
|||
|
18
|
72.50%
|
|||
|
19
|
71.25%
|
|||
|
20
|
70.00%
|
|||
|
21
|
68.75%
|
|||
|
22
|
67.50%
|
|||
|
23
|
66.25%
|
|||
|
24
|
65.00%
|
|||
|
25
|
63.75%
|
|||
|
26
|
62.50%
|
|||
|
27
|
61.25%
|
|||
|
28
|
60.00%
|
|||
|
29
|
58.75%
|
|||
|
30
|
57.50%
|
|||
|
31
|
56.25%
|
|||
|
32
|
55.00%
|
|||
|
33
|
53.75%
|
|||
|
34
|
52.50%
|
|||
|
35
|
51.25%
|
|||
|
36
|
50.00%
|
|||
|
37
|
49.50%
|
|||
|
38
|
49.00%
|
|||
|
39
|
48.50%
|
|||
|
40
|
48.00%
|
|||
|
41
|
47.50%
|
|||
|
42
|
47.00%
|
|||
|
43
|
46.50%
|
|||
|
44
|
46.00%
|
|||
|
45
|
45.50%
|
|||
|
46
|
45.00%
|
|||
|
47
|
44.50%
|
|||
|
48
|
44.00%
|
|||
|
49
|
43.58%
|
|||
|
50
|
43.17%
|
|||
|
51
|
42.75%
|
|||
|
52
|
42.33%
|
|||
|
53
|
41.92%
|
|||
|
54
|
41.50%
|
|||
|
55
|
41.08%
|
|||
|
56
|
40.67%
|
|||
|
57
|
40.25%
|
|||
|
58
|
39.83%
|
|||
|
59
|
39.42%
|
|||
|
60
|
39.00%
|
|||
|
61
|
38.59%
|
|||
|
62
|
38.17%
|
|||
|
63
|
37.75%
|
|||
|
64
|
37.33%
|
|||
|
65
|
36.92%
|
|||
|
66
|
36.50%
|
|||
|
67
|
36.08%
|
|||
|
68
|
35.66%
|
|||
|
69
|
35.25%
|
|||
|
70
|
34.83%
|
|||
|
71
|
34.41%
|
|||
|
72
|
34.00%
|
|||
|
73
|
33.67%
|
|||
|
74
|
33.33%
|
|||
|
75
|
33.00%
|
|||
|
76
|
32.67%
|
|||
|
77
|
32.33%
|
|||
|
78
|
32.00%
|
|||
|
79
|
31.67%
|
|||
|
80
|
31.33%
|
|||
|
81
|
31.00%
|
|||
|
82
|
30.67%
|
|||
|
83
|
30.33%
|
|||
|
84
|
0.00%
|
|||
EXHIBIT
E
[FORM
OF
MONTHLY SETTLEMENT REPORT]
|
Monthly
Pool #1
|
Monthly
Pool #2
|
Monthly
Pool #3
|
Monthly
Pool #N
|
||
|
Payment
Date in:
|
Vehicle
Facility Value
|
Vehicle
Facility Value
|
Vehicle
Facility Value
|
Vehicle
Facility Value
|
Borrowing
Base
|
|
September
2006
|
|||||
|
October
2006
|
|||||
|
November
2006
|
|||||
|
December
2006
|
|||||
|
January
2007
|
|||||
|
February
2007
|
|||||
|
March
2007
|
|||||
|
April
2007
|
|||||
|
May
2007
|
|||||
|
June
2007
|
|||||
|
July
2007
|
|||||
|
August
2007
|
|||||
|
September
2007
|
|||||
|
October
2007
|
|||||
|
November
2007
|
|||||
|
December
2007
|
|||||
|
January
2008
|
|||||
|
February
2008
|
|||||
|
March
2008
|
|||||
|
April
2008
|
|||||
|
May
2008
|
|||||
|
June
2008
|
|||||
|
July
2008
|
|||||
|
August
2008
|
|||||
|
September
2008
|
|||||
|
October
2008
|
|||||
|
November
2008
|
|||||
|
December
2008
|
|||||
|
January
2009
|
|||||
|
February
2009
|
|||||
|
March
2009
|
|||||
|
April
2009
|
|||||
|
May
2009
|
|||||
|
June
2009
|
|||||
|
July
2009
|
|||||
|
August
2009
|
|||||
|
September
2009
|
|||||
|
October
2009
|
|||||
|
November
2009
|
|||||
|
December
2009
|
|||||
|
January
2010
|
|||||
|
February
2010
|
|||||
|
March
2010
|
|||||
|
April
2010
|
|||||
|
May
2010
|
|||||
|
June
2010
|
|||||
|
July
2010
|
|||||
|
August
2010
|
|||||
|
September
2010
|
|||||
|
October
2010
|
|||||
|
November
2010
|
|||||
|
December
2010
|
|||||
|
January
2011
|
|||||
|
February
2011
|
|||||
|
March
2011
|
|||||
|
April
2011
|
|||||
|
May
2011
|
|||||
|
June
2011
|
|||||
|
July
2011
|
|||||
|
August
2011
|
|||||
|
September
2011
|
|||||
|
October
2011
|
|||||
|
November
2011
|
|||||
|
December
2011
|
|||||
|
January
2012
|
|||||
|
February
2012
|
|||||
|
March
2012
|
|||||
|
April
2012
|
|||||
|
May
2012
|
|||||
|
June
2012
|
|||||
|
July
2012
|
|||||
|
August
2012
|
|||||
|
September
2012
|
|||||
|
October
2012
|
|||||
|
November
2012
|
|||||
|
December
2012
|
|||||
|
January
2013
|
|||||
|
February
2013
|
|||||
|
March
2013
|
|||||
|
April
2013
|
|||||
|
May
2013
|
|||||
|
June
2013
|
|||||
|
July
2013
|
|||||
|
August
2013
|
|
Monthly
Analysis
|
||||
|
Truck
Term Loan Facility
|
||||
|
Eligibility
Criteria and Minimum Fleet Owner Cash Flow Test
|
||||
|
Amount
|
Test
|
Compliance
|
||
|
1)
TTM Fleet Owner Cash Flow
|
||||
|
2)
Fleet Owner Cash Flow Ratio
|
Not
to exceed 4.0x
|
YES
|
||
|
3)
Commitment Amount
|
Up
to $50,000,000
|
|||
|
4)
Borrowing Base
|
||||
|
5)
Current Outstanding Loans
|
Not
to exceed Borrowing Base
|
|||
|
Not
to exceed Commitment Amount
|
YES
|
|||
|
6)
EBITDA of AMERCO for the preceding 12 calendar
months
|
||||
|
7)
EBITDAR of AMERCO for the preceding 12 calendar
months
|
||||
|
8)
Net income before preferred stock dividends of AMERCO for the preceding
12
calendar months
|
||||
|
9)
Fixed Charge Ratio
|
||||
|
Payment
Waterfall
|
||||
|
Fees,
Interest, Expenses
|
$
|
|||
|
Targeted
Principal
|
$
|
|||
|
All
Other Obligations
|
$
|
|||
|
Total
amount to be withdrawn from Collection Sub-Account
|
$
|
|||
EXHIBIT
F
FORM
OF
NOTE
NOTE
$_________________________________________,
2006
FOR
VALUE
RECEIVED, U-Haul Leasing & Sales Co., a Nevada corporation, U-Haul Co. of
Arizona, an Arizona corporation an U-Haul International, Inc., a Nevada
Corporation (collectively, the "Borrowers"),
jointly and severally, hereby unconditionally promise to pay to
________________________(the "Lender"),
by
wire transfer to the Collection Sub-Account or to such other location or account
in the United States as the Lenders shall specify to the Borrower from time
to
time, in Federal or other immediately available funds in lawful money of the
United States the maximum principal amount of _______________________
($____________) or, if less, the aggregate unpaid principal amount of all Loans
made to the Borrower pursuant to the Agreement (as defined herein) in
installments in such amounts and on such dates as are determined pursuant to
the
Agreement.
The
Borrowers, jointly and severally, promise to pay interest on the unpaid
principal amount of all Loans made by the Lender hereunder and under the
Agreement from time to time from the date each such Loan is made until payment
in full thereof, in like money at the rates and on the dates set forth in the
Agreement.
To
the
extent not due prior to such time, the entire unpaid principal balance of this
Note, together with accrued unpaid interest, shall be due and payable upon
the
occurrence of an Event of Default.
The
Lender shall (i) record on its books the date and amount of each Loan made
by
the Lender to the Borrowers hereunder and (ii) prior to any transfer of this
Note (or, at the discretion of the Lender, at any other time), endorse such
information on the schedule attached hereto or any continuation thereof. The
failure of the Lender to make any such recordation shall not affect the
obligations of the Borrowers under this Note or the Agreement.
This
Note
may be assigned or participated only in accordance with Section 12.04 of the
Agreement. Any purported assignment or participation of this Note in violation
of such Section shall be null and void ab
initio.
This
Note
is the Note referred to in and is entitled to the benefits and subject to the
terms of, the Credit Agreement, dated as of June 6, 2006 (as amended,
supplemented or modified from time to time, the "Agreement"),
among
the Borrowers, U-Haul International, Inc., as Servicer/Manager and Guarantor,
the Lender and HVB, as Lenders, and the Administrative Agent. The Agreement
contains, among other things, provisions for acceleration of the maturity hereof
upon the occurrence of certain stated events and also for prepayments on account
of the principal hereof prior to the maturity hereof upon the terms and
conditions specified therein.
Except
as
otherwise specified in the Agreement, presentment, demand, protest and all
other
notices of any kind are hereby expressly waived by the Borrowers.
Capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in the Agreement.
THIS
NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH, AND BE GOVERNED BY, THE LAWS OF
THE
STATE OF NEW YORK.
U-HAUL
LEASING & SALES CO.,
as
a
Borrower
By:
Name:
Title:
U-HAUL
CO. OF ARIZONA,
as
a
Borrower
By:
Name:
Title:
U-HAUL
INTERNATIONAL, INC.
as
a
Borrower
By:
Name:
Title:
SCHEDULE
TO NOTE
|
Date
of
Loan
|
Amount
of Loan
|
Date
of Payment/
Prepayment
|
Amount
of Payment/
Prepayment
|
Initialed
by
|
EXHIBIT
G
POOL
AMORTIZATION SCHEDULE
|
Pool
Amortization Schedule
|
|
|
(End
of)
Funding
Month
|
Advance
Rate
(%
of Vehicle Cost)
|
|
1
|
98.33%
|
|
2
|
96.67%
|
|
3
|
95.00%
|
|
4
|
93.33%
|
|
5
|
91.67%
|
|
6
|
90.00%
|
|
7
|
88.33%
|
|
8
|
86.67%
|
|
9
|
85.00%
|
|
10
|
83.33%
|
|
11
|
81.67%
|
|
12
|
80.00%
|
|
13
|
78.75%
|
|
14
|
77.50%
|
|
15
|
76.25%
|
|
16
|
75.00%
|
|
17
|
73.75%
|
|
18
|
72.50%
|
|
19
|
71.25%
|
|
20
|
70.00%
|
|
21
|
68.75%
|
|
22
|
67.50%
|
|
23
|
66.25%
|
|
24
|
65.00%
|
|
25
|
63.75%
|
|
26
|
62.50%
|
|
27
|
61.25%
|
|
28
|
60.00%
|
|
29
|
58.75%
|
|
30
|
57.50%
|
|
31
|
56.25%
|
|
32
|
55.00%
|
|
33
|
53.75%
|
|
34
|
52.50%
|
|
35
|
51.25%
|
|
36
|
50.00%
|
|
37
|
49.50%
|
|
38
|
49.00%
|
|
39
|
48.50%
|
|
40
|
48.00%
|
|
41
|
47.50%
|
|
42
|
47.00%
|
|
43
|
46.50%
|
|
44
|
46.00%
|
|
45
|
45.50%
|
|
46
|
45.00%
|
|
47
|
44.50%
|
|
48
|
44.00%
|
|
49
|
43.58%
|
|
50
|
43.17%
|
|
51
|
42.75%
|
|
52
|
42.33%
|
|
53
|
41.92%
|
|
54
|
41.50%
|
|
55
|
41.08%
|
|
56
|
40.67%
|
|
57
|
40.25%
|
|
58
|
39.83%
|
|
59
|
39.42%
|
|
60
|
39.00%
|
|
61
|
38.59%
|
|
62
|
38.17%
|
|
63
|
37.75%
|
|
64
|
37.33%
|
|
65
|
36.92%
|
|
66
|
36.50%
|
|
67
|
36.08%
|
|
68
|
35.66%
|
|
69
|
35.25%
|
|
70
|
34.83%
|
|
71
|
34.41%
|
|
72
|
34.00%
|
|
73
|
33.67%
|
|
74
|
33.33%
|
|
75
|
33.00%
|
|
76
|
32.67%
|
|
77
|
32.33%
|
|
78
|
32.00%
|
|
79
|
31.67%
|
|
80
|
31.33%
|
|
81
|
31.00%
|
|
82
|
30.67%
|
|
83
|
30.33%
|
|
84
|
0.00%
|
EXHIBIT
H
LENDER
INFORMATION
|
Lender
|
Notice
Address
|
Wire
Instructions
|
|
|
Bayerische
Hypo- und Vereinsbank AG, New York Branch
|
Attention:
Xxxxxxx Xxxxxxx
email:
xxxxxxx_xxxxxxx@xxxxxxxxxxx.xxx
Attention:
Xxxxxxx Xxxxxxx
000
Xxxx 00xx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
|
Account
No. A/C
594-012033-4055-01
Bank: Federal
Reserve Bank of New York
In
Favor of: Bayerische
Hypo- und Vereinsbank AG, New York Branch
ABA
No.: 000000000
Reference: U-Haul
Re: Xxxxxxx
Xxxxxxx
|
|
EXHIBIT
I
[FORM
OF
DEALERSHIP CONTRACT]
EXHIBIT
J
[FORM
OF
RENTAL COMPANY CONTRACT]
EXHIBIT
K
BORROWER
WIRE INSTRUCTIONS
To
Borrowers:
XX
Xxxxxx
Xxxxx Bank
Phoenix,
AZ
ABA#
1221
0002 4
For
benefit of: U-Haul
Account
#
424903
ANNEX
I
ELIGIBILITY
REQUIREMENTS
As
of any
date of determination, a Vehicle constitutes Eligible Vehicle Collateral if
such
Vehicle meets all of the requirements set forth below:
(i) such
Vehicle is a new GMC C5500 regular cab and chassis 2 wheel drive model JH truck
(or such other model as may be approved in writing by the Required Lenders)
comprising part of Borrowers’ "U-Move" fleet;
(ii) such
Vehicle is in good working condition and the Servicer/Manager has performed
all
maintenance on such Collateral in accordance with industry
standards;
(iii) such
Vehicle had not been acquired by Borrowers more than 60 days prior to the date
on which such Vehicle is first added to a Monthly Pool hereunder;
(iv) the
Vehicle Cost for each Vehicle does not exceed $39,000;
(v) such
Vehicle is, when not rented by a consumer in the ordinary course of Borrowers’
business, located at U-Move rental locations in the United States;
(vi) the
Administrative Agent has a legal, valid and enforceable security interest in
such Vehicle and the interest of the Administrative Agent in the Collateral
is
perfected under the applicable state motor vehicle law, 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);
(vii) (A)
the
Certificate of Title for such Vehicle has been amended or reissued to note
the
Lien of "BAYERISCHE HYPO- UND VEREINSBANK, AS AGENT" in the manner prescribed
in
the applicable jurisdiction, (B) if necessary to perfect in any jurisdiction,
the lien of the Administrative Agent shall be identified on a notice of lien
or
other filing made in the appropriate state motor vehicle filing office, and
(C)
all applicable fees in connection with the activities described in the foregoing
clauses (A) and (B) shall be paid in full; provided, that notwithstanding clause
(A), with respect to those jurisdictions that have a twenty-five (25) character
limitation when noting the names of lien holders, such Certificates of Title
shall note a Lien in favor of "HYPOVEREINSBANK, AS AGENT" or such other
formulation acceptable to the Administrative Agent; and
(viii) such
Vehicle conforms to any additional specifications as agreed to by Borrowers
and
Administrative Agent and the Lenders.
Capitalized
terms used herein that are not otherwise defined shall have the meanings
ascribed thereto in the Agreement to which this Annex I is
attached.
