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 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) ARTICLE I DEFINITIONS

Exhibit 10.90

 

 

 

 

 

 

(Truck Term Loan Facility)

 

 

ARTICLE I

 

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

 

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  

 

 

 

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 1/100^th 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 Edward J. Shoen, Mark V. Shoen, James P. Shoen 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  

 

 

 

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  

 

 

 

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  

 

 

 

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 2727 N. Central Avenue, Phoenix, AZ 85004, 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  

 

 

 

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  

 

 

 

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  

 

 

 

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  

 

 

 

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 Seidman, 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  

 

 

 

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  

 

 

 

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  

 

 

 

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 1325 Airmotive Way, Reno, NV ###-###-####, Attention: Rocky Wardrip (email: ***@***) (Facsimile No. (775) 688-6338);

 

(b)  if to UHI, in any capacity, or U-Haul Co. of Arizona, to such party at 2727 N. Central Avenue, Phoenix, AZ 85004, Attention: Jennifer Settles (email: ***@***) (Facsimile No. (602) 263-6173);

 

(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 150 East 42nd Street New York, New York 10017, Attention: Michael Whitman (email: ***@***) / Wayne Miller (email: ), (Facsimile No. ((212) 672-5930).

 

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

 

 

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 Merrill Lynch 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 Merrill Lynch 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 Morgan Stanley 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 Merrill Lynch Capital, a division of Merrill Lynch 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 Merrill Lynch 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 Morgan Stanley 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 Merrill Lynch 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

 

AMERCO Insurance Program

 

 

EXHIBIT A

 

[FORM OF 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

 

_____________, 20__

 

Bayerisch Hypo- und Vereinsbank AG, New York Branch

150 East 42nd Street

New York, New York 10017

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.

 

 

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	Notice Address	Wire Instructions
	Bayerische Hypo- und Vereinsbank AG, New York Branch	Attention: Michael Whitman email: ***@***   Attention: Michael Whitman 150 East 42nd Street New York, New York 10017	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.:  ###-###-#### Reference: U-Haul Re:  Michael Whitman

 

EXHIBIT I

 

 

[FORM OF DEALERSHIP CONTRACT]

 

EXHIBIT J

 

 

[FORM OF RENTAL COMPANY CONTRACT]

 

EXHIBIT K

 

 

BORROWER WIRE INSTRUCTIONS

 

 

To Borrowers:

 

JP Morgan Chase 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.