Exhibit 10.1
AMENDMENT
NO. 1
TO
AMENDED AND RESTATED
CREDIT
AGREEMENT AND SECURITY AGREEMENT
AMENDMENT
NO. 1 TO AMENDED AND RESTATED CREDIT AGREEMENT AND SECURITY
AGREEMENT
,
dated
as of August 18, 2006 (this “
First
Amendment
”),
to
the (i) Amended and Restated Credit Agreement, dated as of June 8, 2005 (as
amended, restated, supplemented or otherwise modified prior to the date hereof,
the “
Existing
Credit Agreement
”;
as
amended hereby and as further amended, restated, supplemented or otherwise
modified and in effect from time to time, the “
Credit
Agreement
”),
among
AMERCO REAL ESTATE COMPANY, a Nevada corporation (“
AMERCO
Real Estate
”),
AMERCO REAL ESTATE COMPANY OF TEXAS INC., a Texas corporation (“
AMERCO
Texas
”),
AMERCO REAL ESTATE COMPANY OF ALABAMA, INC., an Alabama corporation
(“
AMERCO
Alabama
”),
and
U-HAUL CO. OF FLORIDA, INC., a Florida corporation (“
U-Haul
Florida
”)
(each,
a “
Borrower
”
and,
individually and collectively, jointly and severally, the “
Borrowers
”),
U-HAUL INTERNATIONAL, INC., a Nevada corporation (“
U-Haul
International
”)
and
MERRILL LYNCH COMMERCIAL FINANCE CORP., a Delaware corporation (together with
its permitted successors or assigns, the “
Lender
”)
and
(ii) Security Agreement, dated as of June 8, 2005 (as amended, restated,
supplemented or otherwise modified prior to the date hereof, the “
Existing
Security Agreement
”;
as
amended hereby and as further amended, restated, supplemented or otherwise
modified and in effect from time to time, the “
Security
Agreement
”),
among
the Grantors and the Lender. Capitalized terms used but not otherwise defined
herein shall have the meanings given to them in the Credit
Agreement.
RECITALS
WHEREAS,
the Borrowers have requested the Lender to agree to amend certain provisions
of
the Existing Credit Agreement as set forth in this Amendment. The Lender is
willing to agree to such amendments, but only on the terms and subject to the
conditions set forth in this Amendment.
NOW,
THEREFORE, in consideration of the premises and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged,
the
Borrowers and the Lender hereby agree as follows:
SECTION
1.
Amendments
.
(a)
Section
1.1 of the Existing Credit Agreement is hereby amended by deleting the
definition of “Applicable Amortization Schedule” and substituting in lieu
thereof the following new definition:
““
Applicable
Amortization Schedule
”:
(a) at
any time with respect to the Term Loan Commitments, (i) if no Rapid Amortization
Event is in effect, the schedule attached hereto as Schedule 1.3-A, and (ii)
if
a Rapid Amortization Event is in effect, sum of (A) the amount set forth in
Schedule 1.3-A for such time
plus
(B) such
an additional amount that, after giving effect to the reduction of the Term
Loan
Commitment pursuant to both subclauses (A) and (B) of this clause (ii) and
the
prepayments of the Term Loan required pursuant to Section 3.6(a) as a result
thereof, on a pro forma basis as if such reductions and prepayments occurred
as
of the last day of the fiscal quarter of the Borrowers immediately preceding
such time, the Debt Service Coverage Ratio would be 1.50, and (b) in the case
of
the Revolving Credit Commitments at all times, the schedule attached hereto
as
Schedule 1.3-B.”
(b)
Section
1.1 of the Existing Credit Agreement is hereby amended by deleting the
definition of “Applicable Margin” and substituting in lieu thereof the following
new definition:
“
Applicable
Margin
”:
(a)
for any Term Loan, 1.50% per annum and (b) for any Revolving Credit Loan as
of
any date, the applicable rate per annum set forth below in the table opposite
the Debt Service Coverage Ratio for the fiscal quarter most recently ended
prior
to such date:
|
Debt
Service Coverage Ratio
|
Applicable
Margin
|
|
x
≥
3.40
|
1.50%
|
|
3.40
>
x
≥ 3.20
|
1.60%
|
|
3.20
>
x
≥ 3.00
|
1.70%
|
|
3.00
>
x
≥ 2.80
|
1.80%
|
|
2.80
>
x
≥ 2.00
|
1.90%
|
|
2.00
>
x
|
2.00%
|
(c)
Section
1.1 of the Existing Credit Agreement is hereby amended by deleting the
definition of “CMBS Properties Excess Cash Flow” and substituting in lieu
thereof the following new definition:
““
CMBS
Properties Excess Cash Flow
”:
for
any period, the sum of (a) all amounts which are distributable to any of the
“Borrowers” under and as defined in any CMBS Mortgage Agreements pursuant to
Section 5.05 of such CMBS Mortgage Agreements for such period, net of, without
duplication, Operating Expenses in respect of any CMBS Properties subject to
such CMBS Mortgage Agreements and payments of principal and interest under
the
CMBS Mortgage Agreements, in each case accrued during such period, and (b)
any
Permitted CMBS Refinancing Excess Cash Flow and any Unencumbered CMBS Excess
Cash Flow for such period.”
(d)
Section
1.1 of the Existing Credit Agreement is hereby amended by deleting the
definition of “Collection Sub-Account Deposit ” and substituting in lieu thereof
the following new definition:
““
Collection
Sub-Account Deposit
”:
for
any calendar month, the deposit to be made by U-Haul International into the
Collection Sub-Account pursuant to Section 6.10(c) for such month, consisting
of
an amount equal to the sum of (i) the monthly principal amortization payment,
if
required, of the Loans pursuant to the Applicable Amortization Schedule hereto
required to be paid on the Payment Date next following the end of such month,
and (ii) the interest which would be due to be paid on the Payment Date next
following the end of such month calculated assuming that applicable Debt Service
Coverage Ratio at all times during such month would result in the Loans bearing
the highest possible interest rate provided for under Section 3.1(a) at all
times during such month.”
(e)
Section
1.1 of the Existing Credit Agreement is hereby amended by deleting the
definition of “Commitment” and substituting in lieu thereof the following new
definition:
““
Commitment
”:
collectively, the Term Loan Commitment and the Revolving Credit
Commitment.”
(f)
Section
1.1 of the Existing Credit Agreement is hereby amended by deleting the
definition of “Commitment Period” and substituting in lieu thereof the following
new definition:
““
Commitment
Period
”:
the
period from and including the First Amendment Effective Date to but not
including the Termination Date or such earlier date on which the Revolving
Credit Commitment shall terminate as provided herein.”
(g)
Section
1.1 of the Existing Credit Agreement is hereby amended by deleting the
definition of “Continuing Directors” and substituting in lieu thereof the
following new definition:
““
Continuing
Directors
”:
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 or by
a
Permitted Holder.”
(h)
Section
1.1 of the Existing Credit Agreement is hereby amended by deleting the
definition of “Debt Service Coverage Ratio” and substituting in lieu thereof the
following new definition:
““
Debt
Service Coverage Ratio
”:
as of
the last day of any fiscal quarter of the Borrowers, the ratio of (a) the sum
of
(i) NOI of the CMBS Properties for the period of twelve consecutive calendar
months ended on the last day of the month immediately preceding the month in
which such day occurs
divided
by
four and
(ii) Combined NOI for the period of twelve consecutive calendar months ended
on
the last day of the month immediately preceding the month in which such day
occurs,
divided
by
four, to
(b) the sum of (i) interest payable on the Loans during the fiscal quarter
ended
on such day and (ii) payments of principal on the Loans made during the fiscal
quarter ended on such day;
provided
,
that
for purposes of calculating such NOI for the CMBS Properties if less than twelve
months have elapsed since the closing of the transaction contemplated by the
CMBS Documents as to which the Borrowers have provided the reports contemplated
in Section 6.1, the amount in clause (a)(i) of this definition shall be the
NOI
for the CMBS Properties for the period from such closing of the transaction
contemplated by the CMBS Documents to such last day of the month immediately
preceding the month in which such last day of such fiscal quarter occurs
multiplied by a fraction, the numerator of which is 12 and the denominator
of
which is the number of calendar months elapsed since the closing of the
transaction contemplated by the CMBS Documents as to which such reports
contemplated in Section 6.1 have been provided.”
(i)
Section
1.1 of the Existing Credit Agreement is hereby amended by deleting the
definition of “Interest Period” and substituting in lieu thereof the following
new definition:
““
Interest
Period
”:
with
respect to any Eurodollar Loan:
(a)
initially, the period commencing on the borrowing date with respect to such
Eurodollar Loan and ending on the next following Payment Date; and
(b)
thereafter,
each period commencing on the day following the last day of the preceding
Interest Period applicable to such Eurodollar Loan and ending (a) with respect
to any Term Loan, on the next following Payment Date and (b) with respect to
any
Revolving Credit Loan, one, two or three months thereafter, as selected by
the
Borrowers in a notice of borrowing or Continuation, as the case may be, given
with respect thereto (in the form of Annex I);
provided
that,
all of the foregoing provisions relating to Interest Periods are subject to
the
following:
(1)
if
any
Interest Period would otherwise end on a day that is not a Business Day, such
Interest Period shall be extended to the next succeeding Business Day;
and
(2)
any
Interest Period with respect to any Loan that would otherwise extend beyond
the
Termination Date, shall end on the Termination Date.”
(j)
Section
1.1 of the Existing Credit Agreement is hereby amended by deleting the
definition of “Loans” and substituting in lieu thereof the following new
definition:
““
Loans
”:
any
Term Loan or Revolving Credit Loan made by the Lender pursuant to this
Agreement.”
(k)
Section
1.1 of the Existing Credit Agreement is hereby amended by deleting the
definition of “Non-Usage Amount” in its entirety.
(l)
Section
1.1 of the Existing Credit Agreement is hereby amended by deleting the
definition of “Note” and substituting in lieu thereof the following new
definition:
““
Note
”:
as
defined in Section 3.4(c).”
(m)
Section
1.1 of the Existing Credit Agreement is hereby amended by deleting the
definition of “Termination Date” and substituting in lieu thereof the following
new definition:
““
Termination
Date
”:
the
earliest to occur of (a) August 18, 2018 and (b) the date of termination of
the
Commitment pursuant to Sections 2.4, 2.5, 2.6 or 8.”
(n)
Section
1.1 of the Existing Credit Agreement is hereby amended by adding the following
new definitions in proper alphabetical order:
““
Applicable
Unencumbered CMBS Properties Percentage
”:
with
respect to any Unencumbered CMBS Properties, (i) 50%, if such percentage would
result in the Debt Service Coverage Ratio, on a pro forma basis for the fiscal
quarter of the Borrowers most recently ended and after the application of such
percentage to the determination of Unencumbered CMBS Properties Excess Cash
Flow
for such period, to be at least 1.50; (ii) 75%, if such percentage would result
in the Debt Service Coverage Ratio, on a pro forma basis for the fiscal quarter
of the Borrowers most recently ended and after the application of such
percentage to the determination of Unencumbered CMBS Properties Excess Cash
Flow
for such period, to be at least 1.50 and the percentage specified in clause
(i)
of this definition would not have such result; and (iii) 100%, if neither the
percentage in clause (i) or (ii) of this definition would result in the Debt
Service Coverage Ratio, on a pro forma basis for the fiscal quarter of the
Borrowers most recently ended and after the application of such respective
percentages to the determination of Unencumbered CMBS Properties Excess Cash
Flow for such period, to be at least 1.50.”
““
CMBS
Maturity Date
”:
as
defined in Section 6.9(a).”
““
Existing
Loans
”:
as
defined in Section 2.1(a).”
““
Facility
Fee
”:
with
respect to any Payment Date during the Commitment Period, an amount equal to:
(i) $16,666.67, if the average daily outstanding principal balance of the
Revolving Credit Loans for the calendar month ended immediately preceding such
Payment Date is less than $100,000,000, (ii) $40,625, if the average daily
outstanding principal balance of the Revolving Credit Loans for the calendar
month ended immediately preceding such Payment Date is greater than or equal
to
$100,000,000 but less than $150,000,000 or (iii) $75,000, if the average daily
outstanding principal balance of the Revolving Credit Loan for the calendar
month ended immediately preceding such Payment Date is greater than or equal
to
$150,000,000; and with respect to the Termination Date, an amount equal to
the
prorated portion of the amount which would have accrued for the period since
the
most recent Payment Date to the Termination Date, based on the calculation
set
forth above.”
““
First
Amendment
”:
Amendment No. 1 to Amended and Restated Credit Agreement and Security Agreement,
dated as of August 18, 2006, among the Borrowers, U-Haul International and
the
Lender.”
““
First
Amendment Effective Date
”:
the
“Amendment Effective Date” as defined in Section 2 of the First
Amendment.”
““
Permitted
CMBS Refinancing
”:
with
respect to any CMBS Properties, a financing (whatever the form) with respect
to
such CMBS Properties which:
(a)
provides for the payment of excess cash flow to the Borrowers or Affiliates
of
the Borrowers in an amount during each fiscal quarter of the Borrowers
sufficient such that the Debt Service Coverage Ratio for such fiscal quarter
would be equal to at least 1.50 (such excess cash flow in respect of any
Permitted CMBS Refinancing being referred to herein as “
Permitted
CMBS Refinancing Excess Cash Flow
”),
unless otherwise approved by the Lender;
(b)
the
Borrowers shall have entered into, and shall have caused the applicable
financing parties subject to such proposed Permitted CMBS Refinancing and other
Persons to have entered into, such direction letters and other documents to
provide that the Permitted CMBS Refinancing Excess Cash Flow shall be directed
to the Collection Account in the same manner as provided in Section 6.10 with
respect to CMBS Properties Excess Cash Flow; and
(c)
the
Lender shall have received substantially final drafts of the proposed Permitted
CMBS Refinancing Documents at least ten (10) Business Days prior to the closing
date of such proposed Permitted CMBS Refinancing, and which documents shall
be
consistent with the terms of this definition and otherwise in form and substance
reasonably satisfactory to the Lender.”
““
Permitted
CMBS Refinancing Documents
”:
with
respect to any Permitted CMBS Refinancing, all of the mortgage notes, mortgage
agreements, other security agreements, assignments and other financing documents
evidencing, governing or otherwise relating to such Permitted CMBS
Refinancing.”
““
Permitted
CMBS Refinancing Excess Cash Flow
”:
as
defined in the definition of “Permitted CMBS Refinancing” in this Section
1.1.”
““
Revolving
Credit Commitment
”:
the
obligation of the Lender to make Revolving Credit Loans to the Borrowers
pursuant to Section 2.1 in an aggregate principal amount at any one time
outstanding not to exceed, during any month following the First Amendment
Effective Date, the amount set forth opposite such month on the Applicable
Amortization Schedule under the caption “Revolving Credit Commitment”. As of the
First Amendment Effective Date, the Revolving Credit Commitment was
$200,000,000.”
““
Revolving
Credit Loan
”:
as
defined in Section 2.1.”
““
Term
Loan
”:
as
defined in Section 2.1.”
““
Term
Loan Commitment
”:
the
obligation of the Lender to make Term Loans to the Borrowers pursuant to Section
2.1 in an aggregate principal amount at any one time outstanding not to exceed,
during any month following the First Amendment Effective Date, the amount set
forth opposite such month on the Applicable Amortization Schedule under the
caption “Term Loan Commitment”, as such amount may be changed from time to time
in accordance with the provisions of this Agreement. As of the First Amendment
Effective Date, the Term Loan Commitment was $300,000,000.”
“
Unencumbered
CMBS Properties
”:
as
defined in Section 6.9(a)(ii).
“
Unencumbered
CMBS Properties Excess Cash Flow
”:
as
defined in Section 6.9(a)(ii).
““
Unencumbered
CMBS Properties Security Documents
”:
as
defined in Section 6.9(a)(ii).”
(o)
Section
2.1 of the Existing Credit Agreement is hereby amended and restated in its
entirety as follows:
“(a)
Term
Loan Commitments
.
On the
Closing Date, concurrently with the amendment and restatement of the Existing
Loan Agreement hereby, the Lender acquired the outstanding loans under the
Existing Loan Agreement as provided under the terms of the Existing Loan
Assignment Agreement, and such loans and the terms thereof were immediately
amended, restated and reconstituted as, and were thereupon for all purposes
of
the Loan Documents, loans outstanding under this Agreement. Subject to the
terms
and conditions hereof and as of the First Amendment Effective Date, the Lender
agrees that “Loans” then outstanding under and as defined in this Agreement
(prior to giving effect to the amendments effected pursuant to the First
Amendment) (the “
Existing
Loans
”)
shall
be amended, restated and reconstituted as a term loan, and the Lender agrees
to
make a further new term loan to the Borrowers in a principal amount equal to
the
excess of the Term Loan Commitment as of the First Amendment Effective Date
and
the outstanding principal balance of the Existing Loans, which term loans
(collectively, the “
Term
Loan
”)
shall
be outstanding pursuant to this Section 2.1(a) as a unitary Term Loan in an
amount not to exceed the amount of the Term Loan Commitment of the Lender then
in effect. Principal amounts of the Term Loan, once paid or prepaid, may not
be
reborrowed.
(b)
Revolving
Credit Commitments
.
Subject
to the terms and conditions hereof, the Lender agrees to make revolving credit
loans (“
Revolving
Credit Loans
”)
to the
Borrowers from time to time during the Commitment Period in an aggregate
principal amount at any one time outstanding not to exceed the amount of the
Revolving Credit Commitment then in effect. During the Commitment Period the
Borrower may use the Revolving Credit Commitments by borrowing, prepaying the
Revolving Credit Loans in whole or in part, and reborrowing, all in accordance
with the terms and conditions hereof.
(c)
The
Loans hereunder shall be Eurodollar Loans.”
(p)
Section
2.2 of the Existing Credit Agreement is hereby amended and restated in its
entirety as follows:
“(a)
Procedure
for Term Loan Borrowing
.
On the
First Amendment Effective Date, the Existing Loans shall be amended, restated
and reconstituted as the Term Loan outstanding under Section 2.1(a), and to
the
extent that the Term Loan Commitment then in effect exceeds the aggregate
outstanding principal amount of such Existing Loans, the Lender shall make
an
additional new term loan to the Borrowers, to be outstanding as part of the
Term
Loan outstanding under Section 2.1(a), in a principal amount equal to such
excess. The Lender will make such borrowing available to the Borrowers by the
Lender’s transferring funds relating to such borrowing to an account of the
Borrowers by wire transfer in accordance with the instructions separately
certified to the Lender by the Borrowers in writing prior to the First Amendment
Effective Date and specified as such in the Account and Payment Instructions
Certificate.
(b)
Procedure
for Revolving Credit Borrowing
.
The
Borrowers may borrow under the Revolving Credit Commitment during the Commitment
Period on any Business Day ,not to exceed four (4) times in a single month,
in
an aggregate principal amount not exceeding the lesser of the Commitment and
Revolving Credit Commitment then in effect;
provided
,
that
the Borrowers shall give the Lender irrevocable notice (which notice must be
received by the Lender prior to 2:00 p.m., New York City time, two (2) Business
Days prior to the requested Borrowing Date) in the form of Annex I hereto,
duly
completed, specifying (i) the amount to be borrowed, (ii) the requested
Borrowing Date and (iii) and the respective lengths of the initial Interest
Periods therefor. Each borrowing under the Revolving Credit Commitment shall
be
in an amount equal to $1,000,000 or a whole multiple of $100,000 in excess
thereof.”
(q)
Section
2.3 of the Existing Credit Agreement is hereby amended and restated in its
entirety as follows:
“
Facility
Fee
.
The
Borrowers agree to pay to the Lender a Facility Fee on each Payment Date and
on
the Termination Date.”
(r)
Section
2.4 of the Existing Credit Agreement is hereby amended and restated in its
entirety as follows:
“2.4
Termination
and Mandatory Reduction of Commitment
.
(a)
Termination
of Revolving Credit Commitments
.
The
Borrowers shall have the right, upon not less than [five (5)] Business Days’
notice to the Lender, to terminate the Revolving Credit Commitment in full;
provided
,
that no
such termination shall be permitted unless all Revolving Credit Loans have
been
or are concurrently therewith repaid in full; and
provided
,
further
,
that
upon such termination the Borrowers shall pay to the Lender a prepayment fee
in
an amount equal to the product of the Revolving Credit Commitment in effect
immediately prior to such notice
multiplied
by (i)
75 basis points (0.75%), in the case that such termination is made within twelve
(12) months following the First Amendment Effective Date, (ii) 50 basis points
(0.50%), in the case that such termination is made more than twelve (12) months
following the First Amendment Effective Date but within twenty-four (24) months
following the First Amendment Effective Date, and (iii) 25 basis points (0.25%),
otherwise.
(b)
Mandatory
Reduction of Commitment
.
The
Commitment shall automatically be reduced on the dates and in the amounts (a)
as
set forth on the Applicable Amortization Schedule, (b) as provided in the second
sentence of Section 3.6(b), and (c) upon any sale, transfer, exchange or other
disposition of any Eligible Property or any interest (other than leases of
or
easements on any such Eligible Property not prohibited hereby) therein, or
upon
any Eligible Property ceasing to be an Eligible Property pursuant to Sections
6.11(b)(i)(B) or 6.11(e), in an amount equal to 65% of the Appraised Value
of
such Eligible Property,
provided
that, if
in connection with such sale, transfer, exchange or other disposition of an
Eligible Property the Borrowers substitute a new Eligible Property pursuant
to
Section 2.6, such amount of reduction of the Commitment shall be limited to
65%
of the excess, if any, of the Appraised Value of the Eligible Property so being
disposed of over the Appraised Value of the new Eligible Property being
substituted therefor; and in each such case the Borrowers shall prepay the
Loans
and all other amounts owing under the Loan Documents as provided in Section
3.6(a).”
(s)
Section
2.5 of the Existing Credit Agreement is hereby deleted in its entirety and
the
remaining clause renumbered accordingly.
(t)
Section
3.1(b) of the Existing Credit Agreement is hereby amended and restated in its
entirety as follows:
“(b)
If
any Event of Default shall have occurred and be continuing, (i) the principal
of
all Loans and any interest, facility fee or other amount then due and payable
hereunder shall bear interest at a rate per annum which is (x) in the case
of
principal, the rate that would otherwise be applicable thereto pursuant to
the
foregoing provisions of this Section plus 2.00% or (y) in the case of any
such overdue interest, facility fee or other amount, the rate described in
paragraph (a) of this Section plus 2.00%, in each case from the date
of such Event of Default until such Event of Default is cured or waived in
accordance with this Agreement (as well after as before judgment).”
(u)
Section
3.2 of the Existing Credit Agreement is hereby amended and restated in its
entirety as follows:
“3.2
Continuation
.
Any
Term Loan which is a Eurodollar Loan shall be Continued as such upon the
expiration of the then current Interest Period with respect thereto. Any
Revolving Credit Loan which is a Eurodollar Loan may be Continued as such upon
the expiration of the then current Interest Period with respect thereto by
the
Borrowers giving irrevocable notice to the Lender, in accordance with the
applicable provisions of the term “Interest Period” set forth in Section 1.1, of
the length of the next Interest Period to be applicable to such Revolving Credit
Loan.”
(v)
Section
3.4(c) of the Existing Credit Agreement is hereby amended and restated in its
entirety as follows:
“(c)
The
Borrowers agree that, upon the request by the Lender, the Borrowers will execute
and deliver to the Lender (i) a promissory note of the Borrowers evidencing
the
Term Loans of the Lender, substantially in the form of Exhibit A-1 (a
“
Term
Loan Note
”)
and
(ii) a promissory note of the Borrowers evidencing the Revolving Credit Loans
of
the Borrowers, substantially in the form of Exhibit A-2 ( a “
Revolving
Credit Note
”;
collectively, the Term Loan Note and the Revolving Credit Note are referred
to
herein as the “
Notes
”),
in
each case with appropriate insertions as to date and principal
amount.”
(w)
Section
3.5 of the Existing Credit Agreement is hereby amended and restated in its
entirety as follows:
“
Optional
Prepayments
.
(a) The
Borrower may at any time prepay the Term Loans, in whole but not in part, upon
irrevocable notice to the Lender (in the form of Annex III) prior to 2:00 p.m.,
New York City time, at least three (3) Business Days prior thereto, specifying
the date and amount of prepayment. If any such notice is given, the amount
specified in such notice shall be due and payable on the date specified therein,
(a) together with any amounts payable pursuant to Section 3.13 and (b) a
prepayment fee in an amount equal to the product of the Term Loan Commitment
then in effect
multiplied
by (i)
75 basis points (.75%), in the case the Term Loans are prepaid within twelve
(12) months following the First Amendment Effective Date, (ii) 50 basis points
(.50%) in the case the Term Loans are prepaid more than twelve (12) months
but
within twenty-four (24) months following the First Amendment Effective Date
and
(iii) 25 basis points (.25%), otherwise.
(b)
The
Borrower may at any time prepay the Revolving Credit Loans, in whole or in
part,
upon irrevocable notice to the Lender (in the form of Annex III) prior to 2:00
p.m., New York City time, at least three (3) Business Days prior thereto,
specifying the date and
amount
of
prepayment. If any such notice is
given,
the amount specified in such notice shall be due and payable on the date
specified therein, together with (i) any amounts payable pursuant to
Section 3.13 and (ii) if the Revolving Credit Commitment is terminated in
full, a prepayment fee in accordance with Section 2.4(a).
Partial
prepayments pursuant to this Section shall be in an aggregate principal
amount of $1,000,000 or a whole multiple of $100,000 in excess thereof,
exclusive of any fees or accrued interest then due.
”
(x)
Section
3.6(a) of the Existing Credit Agreement is hereby amended and restated in its
entirety as follows:
“(a)
If
on any date the aggregate outstanding principal amount of the Term Loans or
the
Revolving Credit Loans exceeds the Term Loan Commitment or the Revolving Credit
Commitment, respectively, the Borrowers shall immediately prepay such Loans
in
an amount equal to the amount of such excess.”
(y)
Section
3.7(a) of the Existing Credit Agreement is hereby amended and restated in its
entirety as follows:
“(a)
All
facility fees and interest shall be calculated on the basis of a 360-day year
for the actual days elapsed. The Lender shall as soon as practicable notify
the
Borrowers of each determination of a Eurodollar Rate. Any change in the interest
rate on a Loan resulting from a change in the Eurocurrency Reserve Requirements
shall become effective as of the opening of business on the day on which such
change becomes effective. The Lender shall as soon as practicable notify the
Borrowers, by facsimile transmission or electronic mail, of the effective date
and the amount of each such change in interest rate.”
(z)
Section
5.3 of the Existing Credit Agreement is hereby deleted in its
entirety.
(aa)
Section
6.9 of the Existing Credit Agreement is hereby amended and restated in its
entirety as follows:
“6.9
CMBS
Maturity and Refinancing
.
(a)
In
the event that the Indebtedness under any of the CMBS Documents is to mature
at
a time when any Loans are unpaid or the Commitment is in effect, the Borrowers
shall either:
(i)
if
the CMBS Properties subject to such CMBS Documents are to be subject to a new
financing after the maturity of such Indebtedness, cause such new financing
to
be a Permitted CMBS Refinancing; and
(ii)
if
such CMBS Properties subject to such CMBS Documents are not to be subject to
a
new financing after the maturity of such Indebtedness, or if they otherwise
cease to be encumbered by such CMBS Documents (any such pool of CMBS Properties,
“
Unencumbered
CMBS Properties
”),
(A)
enter into such supplements to or amendments of the Security Documents, and
enter into such additional Security Documents (collectively, the “
Unencumbered
CMBS Properties Security Documents
”),
as
shall be reasonably requested by the Lender to create and perfect a
first-priority Lien on property constituting not less than the Applicable
Unencumbered CMBS Properties Percentage of the NOI of such Unencumbered CMBS
Properties (such portion of such NOI, “
Unencumbered
CMBS Properties Excess Cash Flow
”),
(B)
cause such Unencumbered CMBS Properties Excess Cash Flow to be directed to
the
Collection Account in the same manner as provided in Section 6.10 for CMBS
Properties Excess Cash Flow, and (C) enter into arrangements whereby the Lender
or a third-party servicer satisfactory to the Lender shall service the
collection and remittance of such Unencumbered CMBS Properties Excess Cash
Flow,
pursuant to servicing documents reasonably satisfactory to the
Lender;
in
each
case not later than the date of the maturity of such Indebtedness under such
CMBS Documents (the maturity date of the Indebtedness under any CMBS Documents
or Permitted CMBS Refinancing Documents being referred to as the “
CMBS
Maturity Date
”
thereof).
(b)
The
Borrowers may not, without the prior written consent of the Lender:
(i)
with
respect to any CMBS Properties subject to any CMBS Documents or Permitted CMBS
Refinancing Documents, release any such CMBS Properties from such CMBS Documents
or Permitted CMBS Refinancing Documents, or
(ii)
with
respect to any Unencumbered CMBS Properties, substitute any property for any
CMBS Property.
(c)
Upon
the consummation of any Permitted CMBS Refinancing, or a pool of CMBS Properties
becoming Unencumbered CMBS Properties, all of the provisions of this Agreement
and the other Loan Documents applicable to the transactions under the CMBS
Documents and to the CMBS Properties Excess Cash Flow (including, without
limitation, Sections 6.10 and 7.3 of this Agreement and Sections 3, 4(d) and
5(f) and (j) of the Security Agreement) shall apply to such Permitted CMBS
Refinancing or Unencumbered CMBS Properties, the Permitted CMBS Refinancing
Documents or Unencumbered CMBS Properties Security Documents therefor, and
the
Permitted CMBS Excess Cash Flow and Unencumbered CMBS Excess Cash Flow related
thereto,
mutatis
mutandis
.”
(bb)
Section
7
of the Existing Credit Agreement is hereby amended by adding a new Section
7.6
at the end thereof, in proper numerical order, as follows:
“7.6
Alterations
.
Make any
alteration or modification to any Eligible Property unless such alterations
or
modifications would not impair or diminish the Appraised Value of the
Property.”
(cc)
Schedule
1.3 to the Existing Credit Agreement is hereby amended and restated in its
entirety in the form of
Schedules
1.3-A and 1.3-B
attached
hereto
(dd)
Exhibit
A
to the Existing Credit Agreement is hereby amended and restated in its entirety
in the form of
Exhibits
A-1
and
A-2
attached
hereto.
(ee)
Annex
I
to the Existing Credit Agreement is hereby amended and restated in its entirety
in the form of
Annex
I
attached
hereto.
(ff)
Section
1
of the Existing Security Agreement is hereby amended by adding the following
new
definitions in proper alphabetical order:
““
CMBS
Properties Excess Cash Flow Collateral
”:
collectively, all right, title and interest of any Grantor in and to any cash
or
right to receive cash, or any Accounts, Chattel Paper, General Intangibles,
Instruments, Receivables, Securities, Securities Accounts, Security
Entitlements, or other property, comprising, evidencing or arising from, in
whole or in part, any CMBS Properties Excess Cash Flow or any Permitted CMBS
Refinancing Excess Cash Flow, and all products and Proceeds
thereof.”
““
Excluded
Assets
”:
all
Vehicles (but not the Grantor’s interest in truck and other vehicle rental
revenue related to the Eligible Properties), and any property of any Grantor
to
the extent not comprising any part of, or arising or derived from, or otherwise
related to, any of the Eligible Properties or the CMBS Properties Excess Cash
Flow Collateral, including, without limitation, the property listed on Schedule
II.”
SECTION
2.
Conditions
Precedent
.
This
Amendment shall become effective on the date (the “
Amendment
Effective Date
”)
on
which the following conditions precedent shall have been satisfied or
waived:
(a)
the
Lender shall have received the following:
(i)
This
Amendment, executed and delivered by a duly authorized officer of each Borrower;
(ii)
For
the
account of the Lender, a Term Loan Note and a Revolving Credit Note, conforming
to the requirements of the Credit Agreement and executed by a duly authorized
officer of the Borrowers;
(iii)
A
closing
certificate of each Borrower, dated the First Amendment Effective Date,
substantially in the form of Exhibit E to the Existing Credit Agreement,
with appropriate insertions and attachments, satisfactory in form and substance
to the Lender, executed by the Treasurer and the Secretary of such
Borrower;
(iv)
A
copy of
the resolutions, in form and substance satisfactory to the Lender, of the Board
of Directors of each Borrower authorizing (i) the execution, delivery and
performance of this First Amendment, (ii) the borrowings contemplated
hereunder and (iii) the granting by it of, and the continuation of, the
Liens created pursuant to the Security Documents, certified by the Secretary
or
an Assistant Secretary of such Borrower as of the First Amendment Effective
Date, which certification shall be included in the certificate delivered in
respect of such Borrower pursuant to clause (c) above, shall be in form and
substance satisfactory to the Lender and shall state that the resolutions
thereby certified have not been amended, modified, revoked or
rescinded;
(v)
A
certificate of each Borrower, dated the First Amendment Effective Date, as
to
the incumbency and signature of the officers of such Borrower executing this
First Amendment, which certificate shall be included in the certificate
delivered in respect of such Borrower pursuant to clause (c) above, shall be
satisfactory in form and substance to the Lender, and shall be executed by
the
President or any Vice President and the Secretary or any Assistant Secretary
of
such Borrower;
(vi)
True
and
complete copies of the Governing Documents of each Borrower, certified as of
the
First Amendment Effective Date as complete and correct copies thereof by the
Secretary or an Assistant Secretary of such Borrower, which certification shall
be included in the certificate delivered in respect of such Borrower pursuant
to
clause (c) above and shall be in form and substance satisfactory to the
Lender;
(vii)
Certificates
dated as of a recent date from the Secretary of State or other appropriate
authority, evidencing the good standing of each Borrower (i) in the
jurisdiction of its organization and (ii) in each other jurisdiction where
its ownership, lease or operation of property or the conduct of its business
requires it to qualify as a foreign Person except, as to this
subclause (ii), where the failure to so qualify would not have a Material
Adverse Effect;
(viii)
The
executed legal opinions of counsel to the Borrowers, covering such matters
incident to the transactions contemplated by this First Amendment as the Lender
may reasonably require, and in form and substance satisfactory to the Lender;
(ix)
All
partnership, corporate and other proceedings, and all documents, instruments
and
other legal matters in connection with the transactions contemplated by this
First Amendment shall be satisfactory in form and substance to the Lender,
and
the Lender shall have received such other documents and legal opinions in
respect of any aspect or consequence of the transactions contemplated hereby
or
thereby as it shall reasonably request; and
(x)
An
amendment fee in an amount equal to $2,500,000.
(b)
Any
filings, recordings, registrations and other actions, including, without
limitation, the filing of duly executed financing statements on form UCC-1
or
amendments to financing statements on form UCC-3, necessary or, in the opinion
of the Lender, desirable to perfect or to continue the perfection of the Liens
created by the Security Documents shall have been completed or arrangements
satisfactory to the Lender to complete the same shall have been
made.
(c)
Each
of
the representations and warranties made by the Borrowers and the other Loan
Parties in or pursuant to the Loan Documents shall be true and correct in all
material respects on and as of such date as if made on and as of such date
(unless such representation and warranty is made as of an earlier date in which
case such representation and warranty shall be true and correct as of such
earlier date).
(d)
No
Default or Event of Default shall have occurred and be continuing on such date
or after giving effect to the Loans requested to be made on such
date.
(e)
All
partnership, corporate and other proceedings, and all documents, instruments
and
other legal matters in connection with the transactions contemplated by this
First Amendment shall be satisfactory in form and substance to the Lender,
and
the Lender shall have received such other documents and legal opinions in
respect of any aspect or consequence of the transactions contemplated hereby
as
it shall reasonably request.
SECTION
3.
Representations
and Warranties
.
Each
Borrower hereby represents and warrants to the Lender that it is in compliance
with all the terms and provisions set forth in the Loan Documents on its part
to
be observed or performed, and that no Default or Event of Default has occurred
or is continuing, and, after giving effect to the amendment set forth in Section
1 hereof, hereby confirms and reaffirms the representations and warranties
contained in Section 4 of the Credit Agreement.
SECTION
4.
Limited
Effect
.
Except
as expressly amended and modified hereby, the Existing Credit Agreement shall
continue to be, and shall remain, in full force and effect in accordance with
its terms; provided that upon the Amendment Effective Date, all references
therein and herein to the “Loan Documents” shall be deemed to include, in any
event, this Amendment and each reference to the Credit Agreement in any of
the
other Loan Documents shall be deemed to be a reference to the Credit Agreement
as amended hereby.
SECTION
5.
Counterparts
.
This
Amendment may be executed by each of the parties hereto on any number of
separate counterparts, each of which shall be an original and all of which
taken
together shall constitute one and the same instrument. Delivery of an executed
signature page of this Amendment in Portable Document Format (PDF) or by
facsimile transmission shall be effective as delivery of a manually executed
original counterpart hereof.
SECTION
6.
Reproduction
of Documents
.
This
Amendment, and all documents relating hereto, may be reproduced by any
photographic, photostatic, microfilm, microcard, miniature photographic or
other
similar process and any such reproduction shall be admissible in evidence as
the
original itself in any judicial or administrative proceeding, whether or not
the
original is in existence and whether or not such reproduction was made by a
party in the regular course of business, and that any enlargement, facsimile
or
further reproduction of such reproduction shall likewise be admissible in
evidence.
SECTION
7.
GOVERNING
LAW
.
THIS
AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS
OF
THE STATE OF NEW YORK.
[SIGNATURES
FOLLOW]
IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed and delivered as of the day and year first above written.
AMERCO
REAL ESTATE COMPANY, as a Borrower and a Grantor
AMERCO
REAL ESTATE COMPANY OF TEXAS, INC., as a Borrower and a Grantor
AMERCO
REAL ESTATE COMPANY OF ALABAMA, INC., as a Borrower and a Grantor
U-HAUL
CO. OF FLORIDA, INC., as a Borrower and a Grantor
By:
Name:
Gary B. Horton
Title:
Treasurer
U-HAUL
CO. OF ALABAMA, INC.
U-HAUL
CO. OF ALASKA
U-HAUL
CO. OF ARIZONA
U-HAUL
CO. OF CALIFORNIA
U-HAUL
CO. OF COLORADO
U-HAUL
CO. OF CONNECTICUT
U-HAUL
CO. OF GEORGIA
U-HAUL
CO. OF IDAHO, INC.
U-HAUL
CO. OF ILLINOIS, INC.
U-HAUL
CO. OF INDIANA, INC.
U-HAUL
CO. OF IOWA, INC.
U-HAUL
CO. OF KANSAS, INC.
U-HAUL
CO. OF KENTUCKY
U-HAUL
CO. OF LOUISIANA
U-HAUL
CO. OF MAINE, INC.
U-HAUL
CO. OF MARYLAND, INC.
U-HAUL
CO. OF MASSACHUSETTS AND OHIO, INC.
U-HAUL
CO. OF MICHIGAN
U-HAUL
CO. OF MINNESOTA
U-HAUL
CO. OF MISSISSIPPI
U-HAUL
CO. OF MONTANA, INC.
U-HAUL
CO. OF NEBRASKA
U-HAUL
CO. OF NEVADA, INC.
U-HAUL
CO. OF NEW HAMPSHIRE, INC.
U-HAUL
CO. OF NEW JERSEY, INC.
U-HAUL
CO. OF NEW MEXICO, INC.
U-HAUL
CO. OF NEW YORK AND VERMONT, INC.
U-HAUL
CO. OF NORTH CAROLINA
U-HAUL
CO. OF NORTH DAKOTA
U-HAUL
CO. OF OKLAHOMA, INC.
U-HAUL
CO. OF OREGON
U-HAUL
CO. OF PENNSYLVANIA
U-HAUL
CO. OF RHODE ISLAND
U-HAUL
CO. OF SOUTH CAROLINA, INC.
U-HAUL
CO. OF SOUTH DAKOTA, INC.
U-HAUL
CO. OF TENNESSEE
U-HAUL
CO. OF TEXAS
U-HAUL
CO. OF UTAH
U-HAUL
CO. OF VIRGINIA
U-HAUL
CO. OF WASHINGTON
U-HAUL
CO. OF WEST VIRGINIA
U-HAUL
CO. OF WISCONSIN, INC.
as
Grantors
By
Name:
Gary B. Horton
Title:
Treasurer
MERRILL
LYNCH COMMERCIAL FINANCE CORP., as Lender
By:
Name:
Ryan D. Bell
Title:
Vice President
Acknowledged
and Agreed:
U-HAUL
INTERNATIONAL, INC.,
as
Guarantor
By:
___________________________
Name:
Gary B. Horton
Title:
Treasurer
Schedule
1.3-A
Mandatory
Reductions in Term Loan Commitment, Amortization and Rapid
Amortization
|
Date
|
Term
Loan Commitment
*
Commitment reductions pursuant to provisions of the Credit Agreement
other
than Section 2.4(a) shall be deemed applied to reduce each amount
set
forth in this schedule.
|
|
First
Amendment Effective Date
|
$300,000,000.00
|
|
September
10, 2006
|
$300,000,000.00
|
|
October
10, 2006
|
$299,167,000.00
|
|
November
10, 2006
|
$298,333,000.00
|
|
December
10, 2006
|
$297,500,000.00
|
|
January
10, 2007
|
$296,667,000.00
|
|
February
10, 2007
|
$295,833,000.00
|
|
March
10, 2007
|
$295,000,000.00
|
|
April
10, 2007
|
$294,167,000.00
|
|
May
10, 2007
|
$293,333,000.00
|
|
June
10, 2007
|
$292,500,000.00
|
|
July
10, 2007
|
$291,667,000.00
|
|
August
10, 2007
|
$290,833,000.00
|
|
September
10, 2007
|
$290,000,000.00
|
|
October
10, 2007
|
$289,167,000.00
|
|
November
10, 2007
|
$288,333,000.00
|
|
December
10, 2007
|
$287,500,000.00
|
|
January
10, 2008
|
$286,667,000.00
|
|
February
10, 2008
|
$285,833,000.00
|
|
March
10, 2008
|
$285,000,000.00
|
|
April
10, 2008
|
$284,167,000.00
|
|
May
10, 2008
|
$283,333,000.00
|
|
June
10, 2008
|
$282,500,000.00
|
|
July
10, 2008
|
$281,667,000.00
|
|
August
10, 2008
|
$280,833,000.00
|
|
September
10, 2008
|
$280,000,000.00
|
|
October
10, 2008
|
$279,167,000.00
|
|
November
10, 2008
|
$278,333,000.00
|
|
December
10, 2008
|
$277,500,000.00
|
|
January
10, 2009
|
$276,667,000.00
|
|
February
10, 2009
|
$275,833,000.00
|
|
March
10, 2009
|
$275,000,000.00
|
|
April
10, 2009
|
$274,167,000.00
|
|
May
10, 2009
|
$273,333,000.00
|
|
June
10, 2009
|
$272,500,000.00
|
|
July
10, 2009
|
$271,667,000.00
|
|
August
10, 2009
|
$270,833,000.00
|
|
September
10, 2009
|
$270,000,000.00
|
|
October
10, 2009
|
$269,167,000.00
|
|
November
10, 2090
|
$268,333,000.00
|
|
December
10, 2009
|
$267,500,000.00
|
|
January
10, 2010
|
$266,667,000.00
|
|
February
10, 2010
|
$265,833,000.00
|
|
March
10, 2010
|
$265,000,000.00
|
|
April
10, 2010
|
$264,167,000.00
|
|
May
10, 2010
|
$263,333,000.00
|
|
June
10, 2010
|
$262,500,000.00
|
|
July
10, 2010
|
$261,167,000.00
|
|
August
10, 2010
|
$260,833,000.00
|
|
September
10, 2010
|
$260,000,000.00
|
|
October
10, 2010
|
$259,167,000.00
|
|
November
10, 2010
|
$258,333,000.00
|
|
December
10, 2010
|
$257,500,000.00
|
|
January
10, 2011
|
$256,667,000.00
|
|
February
10, 2011
|
$255,833,000.00
|
|
March
10, 2011
|
$255,000,000.00
|
|
April
10, 2011
|
$254,167,000.00
|
|
May
10, 2011
|
$253,333,000.00
|
|
June
10, 2011
|
$252,500,000.00
|
|
July
10, 2011
|
$251,667,000.00
|
|
August
10, 2011
|
$250,833,000.00
|
|
September
10, 2011
|
$250,000,000.00
|
|
October
10, 2011
|
$249,167,000.00
|
|
November
10, 2011
|
$248,333,000.00
|
|
December
10, 2011
|
$247,500,000.00
|
|
January
10, 2012
|
$246,667,000.00
|
|
February
10, 2012
|
$245,833,000.00
|
|
March
10, 2012
|
$245,000,000.00
|
|
April
10, 2012
|
$244,167,000.00
|
|
May
10, 2012
|
$243,333,000.00
|
|
June
10, 2012
|
$242,500,000.00
|
|
July
10, 2012
|
$241,667,000.00
|
|
August
10, 2012
|
$240,833,000.00
|
|
September
10, 2012
|
$240,000,000.00
|
|
October
10, 2012
|
$239,167,000.00
|
|
November
10, 2012
|
$238,333,000.00
|
|
December
10, 2012
|
$237,500,000.00
|
|
January
10, 2013
|
$236,667,000.00
|
|
February
10, 2013
|
$235,833,000.00
|
|
March
10, 2013
|
$235,000,000.00
|
|
April
10, 2013
|
$234,167,000.00
|
|
May
10, 2013
|
$233,333,000.00
|
|
June
10, 2013
|
$232,500,000.00
|
|
July
10, 2013
|
$231,667,000.00
|
|
August
10, 2013
|
$230,833,000.00
|
|
September
10, 2013
|
$230,000,000.00
|
|
October
10, 2013
|
$229,167,000.00
|
|
November
10, 2013
|
$228,333,000.00
|
|
December
10, 2013
|
$227,500,000.00
|
|
January
10, 2014
|
$226,667,000.00
|
|
February
10, 2014
|
$225,833,000.00
|
|
March
10, 2014
|
$225,000,000.00
|
|
April
10, 2014
|
$224,167,000.00
|
|
May
10, 2014
|
$223,333,000.00
|
|
June
10, 2014
|
$222,500,000.00
|
|
July
10, 2014
|
$221,667,000.00
|
|
August
10, 2014
|
$220,833,000.00
|
|
September
10, 2014
|
$220,000,000.00
|
|
October
10, 2014
|
$219,167,000.00
|
|
November
10, 2014
|
$218,333,000.00
|
|
December
10, 2014
|
$217,500,000.00
|
|
January
10, 2015
|
$216,667,000.00
|
|
February
10, 2015
|
$215,833,000.00
|
|
March
10, 2015
|
$215,000,000.00
|
|
April
10, 2015
|
$214,167,000.00
|
|
May
10, 2015
|
$213,333,000.00
|
|
June
10, 2015
|
$212,500000.00
|
|
July
10, 2015
|
$211,667,000.00
|
|
August
10, 2015
|
$210,833,000.00
|
|
September
10, 2015
|
$210,000,000.00
|
|
October
10, 2015
|
$209,167,000.00
|
|
November
10, 2015
|
$208,333,000.00
|
|
December
10, 2015
|
$207,500,000.00
|
|
January
10, 2016
|
$206,667,000.00
|
|
February
10, 2016
|
$205,833,000.00
|
|
March
10, 2016
|
$205,000,000.00
|
|
April
10, 2016
|
$204,167,000.00
|
|
May
10, 2016
|
$203,333,000.00
|
|
June
10, 2016
|
$202,500,000.00
|
|
July
10, 2016
|
$201,667,000.00
|
|
August
10, 2016
|
$200,833,000.00
|
|
September
10, 2016
|
$133,333,000.00
|
|
October
10, 2016
|
$132,778,000.00
|
|
November
10, 2016
|
$132,222,000.00
|
|
December
10, 2016
|
$131,667,000.00
|
|
January
10, 2017
|
$131,111,000.00
|
|
February
10, 2017
|
$130,556,000.00
|
|
March
10, 2017
|
$130,000,000.00
|
|
April
10, 2017
|
$129,444,000.00
|
|
May
10, 2017
|
$128,889,000.00
|
|
June
10, 2017
|
$128,333,000.00
|
|
July
10, 2017
|
$127,778,000.00
|
|
August
10, 2017
|
$127,222,000.00
|
|
September
10, 2017
|
$63,333,000.00
|
|
October
10, 2017
|
$63,056,000.00
|
|
November
10, 2017
|
$62,778,000.00
|
|
December
10, 2017
|
$62,500,000.00
|
|
January
10, 2018
|
$62,222,000.00
|
|
February
10, 2018
|
$61,944,000.00
|
|
March
10, 2018
|
$61,667,000.00
|
|
April
10, 2018
|
$61,389,000.00
|
|
May
10, 2018
|
$61,111,000.00
|
|
June
10, 2018
|
$60,833,000.00
|
|
July
10, 2018
|
$60,556,000.00
|
|
August
10, 2018
|
$60,278,000.00
|
|
Termination
Date
|
$0
|
Schedule
1.3-B
Mandatory
Reductions in Revolving Credit Commitment, Amortization and Rapid
Amortization
|
Date
|
Revolving
Credit Commitment
*
Commitment reductions pursuant to provisions of the Credit Agreement
other
than Section 2.4(a) shall be deemed applied to reduce each amount
set
forth in this schedule.
|
|
At
all times
|
$200,000,000.00
|
|
|
|
FORM
OF REVOLVING CREDIT NOTE
|
$200,000,000
|
August
18, 2006
New
York, New York
|
FOR
VALUE
RECEIVED, AMERCO REAL ESTATE COMPANY, a Nevada corporation (“
AMERCO
Real Estate
”),
AMERCO REAL ESTATE COMPANY OF TEXAS INC., a Texas corporation (“
AMERCO
Texas
”),
AMERCO REAL ESTATE COMPANY OF ALABAMA, INC., an Alabama corporation
(“
AMERCO
Alabama
”),
and
U-HAUL CO. OF FLORIDA, INC., a Florida corporation (“
U-Haul
Florida
”)
(each,
a “
Borrower
”
and,
individually and collectively, jointly and severally, the “
Borrowers
”),
hereby unconditionally promise to pay to the order of MERRILL LYNCH COMMERCIAL
FINANCE CORP., a Delaware corporation (together with its permitted successors
or
assigns, the “
Lender
”),
at
the principal office of the Lender at 4 World Financial Center, 10
th
Floor,
New York, New York 10080, in Dollars and in immediately available funds, the
lesser of (a) the principal sum of TWO HUNDRED MILLION DOLLARS ($200,000,000)
and (b) the aggregate unpaid principal amount of all Revolving Credit Loans
made to the Borrowers pursuant to Section 2.1 of the Credit Agreement referenced
below (or such lesser amount as shall equal the aggregate unpaid principal
amount of the Revolving Credit Loans made by the Lender to the Borrowers under
the Credit Agreement), on the date provided in the Credit Agreement, and to
pay
interest on the unpaid principal amount of the Revolving Credit Loans until
such
Revolving Credit Loans shall be paid in full, at the rate per annum and on
the
dates provided in Section 3.4 of the Credit Agreement.
The
date,
amount and interest rate of the Revolving Credit Loan made by the Lender to
the
Borrowers, and each payment made on account of the principal thereof, shall
be
recorded by the Lender on its books and, prior to any transfer of this Revolving
Credit Note, endorsed by the Lender on the schedule attached hereto or any
continuation thereof;
provided
,
that
the failure of the Lender to make any such recordation or endorsement shall
not
affect the obligations of the Borrowers to make a payment when due of any amount
owing under the Credit Agreement or hereunder in respect of the Revolving Credit
Loans made by the Lender.
This
Revolving Credit Note is the Revolving Credit Note referred into the Amended
and
Restated Credit Agreement, dated as of June 8, 2005 (as amended, restated,
supplemented or otherwise modified and in effect from time to time, the
“
Credit
Agreement
”),
among
the Borrowers, U-Haul International, Inc. and the Lender, and evidences the
Revolving Credit Loans made by the Lender thereunder. Terms used but not defined
in this Revolving Credit Note have the respective meanings assigned to them
in
the Credit Agreement.
The
Borrowers agree to pay all the Lender’s costs of collection and enforcement
(including reasonable attorneys’ fees and disbursements of Lender’s counsel) in
respect of this Revolving Credit Note in accordance with the Credit Agreement,
including, without limitation, reasonable attorneys’ fees through appellate
proceedings.
The
Borrowers and any endorsers or guarantors hereof, (a) severally waive diligence,
presentment, protest and demand and also notice of protest, demand, dishonor
and
nonpayments of this Revolving Credit Note, (b) expressly agree that this
Revolving Credit Note, or any payment hereunder, may be extended from time
to
time, and consent to the acceptance of further Collateral, the release of any
Collateral for this Revolving Credit Note, the release of any party primarily
or
secondarily liable hereon, and (c) expressly agree that it will not be necessary
for the Lender, in order to enforce payment of this Revolving Credit Note,
to
first institute or exhaust the Lender’s remedies against the Borrowers or any
other party liable hereon or against any Collateral for this Revolving Credit
Note. No extension of time for the payment of this Revolving Credit Note, or
any
installment hereof, made by agreement by the Lender with any person now or
hereafter liable for the payment of this Revolving Credit Note, shall affect
the
liability under this Revolving Credit Note of the Borrowers, even if such
Borrowers are not parties to such agreement.
Any
reference herein to the Lender shall be deemed to include and apply to every
subsequent holder of this Revolving Credit Note. Reference is made to the Credit
Agreement for provisions concerning optional and mandatory prepayments,
Collateral, guarantees, acceleration and other material terms affecting this
Revolving Credit Note.
Each
Borrower hereby acknowledges and agrees that such Borrower shall be liable
to
the maximum extent permitted by applicable law for all representations,
warranties, covenants, obligations and indemnities of the Borrower under the
Loan Documents.
This
Revolving Credit Note shall be governed by and construed and interpreted in
accordance with the laws of the State of New York whose laws the Borrowers
expressly elect to apply to this Revolving Credit Note. The Borrowers agree
that
any action or proceeding brought to enforce or arising out of
this
Revolving
Credit Note may be commenced in the Supreme Court of the State of New York,
Borough of Manhattan, or in the District Court of the United States for the
Southern District of New York.
[SIGNATURE
PAGES FOLLOW]
AMERCO
REAL ESTATE COMPANY
AMERCO
REAL ESTATE COMPANY OF TEXAS, INC.
AMERCO
REAL ESTATE COMPANY OF ALABAMA, INC.
U-HAUL
CO. OF FLORIDA, INC.
U-HAUL
INTERNATIONAL, INC., as Guarantor
By:
Name:
Gary B. Horton
Title:
Treasurer
SCHEDULE
OF REVOLVING CREDIT LOAN
This
Revolving Credit Note evidences the Revolving Credit Loan made under the
within-described Credit Agreement to the Borrower, on the dates, in the
principal amounts and bearing interest at the rates set forth below, and subject
to the payments and prepayments of principal set forth below:
|
Date
Made
|
Principal
Amount
of
Revolving Credit Loan
|
Amount
Paid
or
Prepaid
|
Unpaid
Principal Amount
|
Notation
Made
by
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
EXHIBIT
A-2
FORM
OF TERM NOTE
$300,000,000
August
18, 2006
New
York,
New York
FOR
VALUE
RECEIVED, AMERCO REAL ESTATE COMPANY, a Nevada corporation (“
AMERCO
Real Estate
”),
AMERCO REAL ESTATE COMPANY OF TEXAS INC., a Texas corporation (“
AMERCO
Texas
”),
AMERCO REAL ESTATE COMPANY OF ALABAMA, INC., an Alabama corporation
(“
AMERCO
Alabama
”),
and
U-HAUL CO. OF FLORIDA, INC., a Florida corporation (“
U-Haul
Florida
”)
(each,
a “
Borrower
”
and,
individually and collectively, jointly and severally, the “
Borrowers
”),
hereby unconditionally promise to pay to the order of MERRILL LYNCH COMMERCIAL
FINANCE CORP., a Delaware corporation (together with its permitted successors
or
assigns, the “
Lender
”),
at
the principal office of the Lender at 4 World Financial Center, 10
th
Floor,
New York, New York 10080, in lawful money of the United States, and in
immediately available funds, the lesser of (a) the principal sum of THREE
HUNDRED MILLION DOLLARS ($300,000,000) and (b) the aggregate principal amount
of
the Term Loan made to the Borrowers pursuant to the Credit Agreement referenced
below, on the dates provided in the Credit Agreement, and to pay interest on
the
unpaid principal amount of the Term Loan, at such office, in like money and
funds, for the period commencing on the date of such Term Loan until such Term
Loan shall be paid in full, at the rate per annum and on the dates provided
in
the Credit Agreement.
The
date,
amount and interest rate of the Term Loan made by the Lender to the Borrowers,
and each payment made on account of the principal thereof, shall be recorded
by
the Lender on its books and, prior to any transfer of this Term Note, endorsed
by the Lender on the schedule attached hereto or any continuation thereof;
provided
,
that
the failure of the Lender to make any such recordation or endorsement shall
not
affect the obligations of the Borrower to make a payment when due of any amount
owing under the Credit Agreement or hereunder in respect of the Term Loan made
by the Lender.
This
Term
Note is the Term Note referred to in the Amended and Restated Credit Agreement,
dated as June 8, 2005 (as amended, restated, supplemented or otherwise modified
and in effect from time to time, the “
Credit
Agreement
”),
among
the Borrowers, U-Haul International, Inc., and the Lender, and evidences the
Term Loan made by the Lender thereunder. Terms used but not defined in this
Term
Note have the respective meanings assigned to them in the Credit
Agreement.
The
Borrowers agree to pay all the Lender’s costs of collection and enforcement
(including reasonable attorneys’ fees and disbursements of Lender’s counsel) in
respect of this Term Note in accordance with the Credit Agreement, including,
without limitation, reasonable attorneys’ fees through appellate
proceedings.
The
Borrowers, and any endorsers or guarantors hereof, (a) severally waive
diligence, presentment, protest and demand and also notice of protest, demand,
dishonor and nonpayments of this Term Note, (b) expressly agree that this Term
Note, or any payment hereunder, may be extended from time to time, and consent
to the acceptance of further Collateral, the release of any Collateral for
this
Term Note, the release of any party primarily or secondarily liable hereon,
and
(c) expressly agree that it will not be necessary for the Lender, in order
to
enforce payment of this Term Note, to first institute or exhaust the Lender’s
remedies against the Borrowers or any other party liable hereon or against
any
Collateral for this Term Note. No extension of time for the payment of this
Term
Note, or any installment hereof, made by agreement by the Lender with any person
now or hereafter liable for the payment of this Term Note, shall affect the
liability under this Term Note of the Borrowers, even if such Borrowers are
not
parties to such agreement.
Any
reference herein to the Lender shall be deemed to include and apply to every
subsequent holder of this Term Note. Reference is made to the Credit Agreement
for provisions concerning optional and mandatory prepayments, Collateral,
guarantees, acceleration and other material terms affecting this Term
Note.
Each
Borrower hereby acknowledges and agrees that such Borrower shall be liable
to
the maximum extent permitted by applicable law for all representations,
warranties, covenants, obligations and indemnities of the Borrower under the
Term Loan Documents.
This
Term
Note amends, restates and replaces in its entirety the Note, dated as of June
8,
2005, made by the Borrowers in favor of the Lenders pursuant to the Credit
Agreement, in the maximum principal sum of $465,000,000 (the “
Note
”)
and is
given as a continuation, rearrangement and extension, and not a novation,
release or satisfaction of the Note. The Borrowers hereby acknowledge and agree
that simultaneously with the Borrower’s execution and delivery of this Term Note
to the Lender, the Lender has delivered to the Borrower the Note.
This
Term Note shall be governed by and construed and interpreted in accordance
with
the laws of the State of New York whose laws the Borrowers expressly elect
to
apply to this Term Note. The Borrowers agree that any action or proceeding
brought to enforce or arising out of this Term Note may be commenced in the
Supreme Court of the State of New York, Borough of Manhattan, or in the District
Court of the United States for the Southern District of New York.
[SIGNATURE
PAGE FOLLOWS]
AMERCO
REAL ESTATE COMPANY
AMERCO
REAL ESTATE COMPANY OF TEXAS, INC.
AMERCO
REAL ESTATE COMPANY OF ALABAMA, INC.
U-HAUL
CO. OF FLORIDA, INC.
U-HAUL
INTERNATIONAL, INC., as Guarantor
By:
Name:
Gary B. Horton
Title:
Treasurer
SCHEDULE
OF TERM LOAN
This
Term
Note evidences the Term Loan made under the within-described Credit Agreement
to
the Borrower, on the dates, in the principal amounts and bearing interest at
the
rates set forth below, and subject to the payments and prepayments of principal
set forth below:
|
Date
Made
|
Principal
Amount
of
Term Loan
|
Amount
Paid
or
Prepaid
|
Unpaid
Principal Amount
|
Notation
Made
by
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
ANNEX
I
FORM
OF NOTICE OF BORROWING / CONTINUATION
[Date]
Merrill
Lynch Commercial Finance Corp., as Lender
4
World
Financial Center, 33rd Floor
New
York,
New York 10080
Attention:
Paul Tufaro
Ladies
and Gentlemen:
This
Notice of [Borrowing] / [Continuation] is delivered to you pursuant to Section
2.2 of the Credit Agreement dated as of June 8, 2005 (as amended, restated,
supplemented or otherwise modified from time to time, the “
Credit
Agreement
”),
among
AMERCO Real Estate Company, AMERCO Real Estate Company of Texas, Inc., AMERCO
Real Estate Company of Alabama, Inc., and U-Haul Co. of Florida, Inc., as
borrowers (the “
Borrowers
”),
U-Haul International, Inc., as guarantor and Merrill Lynch Commercial Finance
Corp., as lender (the “
Lender
”).
Unless otherwise defined herein or the context otherwise requires, terms used
herein have the meanings provided in the Credit Agreement.
[The
Borrowers hereby request that a Term Loan be made in the aggregate principal
amount of $[____________] on [__________ __, 200_] as a Eurodollar Loan having
an Interest Period of one month.]
[The
Borrowers hereby request that on [_________ __, 200_] (the “
Continuation
Date
”),
$[____________] of the presently outstanding principal amount of the Revolving
Credit Loans originally made on [__________ __, 200_], and all presently being
maintained as Eurodollar Loans, be continued as Eurodollar Loans having an
Interest Period of [one / two / three] month(s).]
The
Borrowers hereby acknowledge that, pursuant to Section 5.2 of the Credit
Agreement, each of the delivery of this Notice of Borrowing / Continuation
and
the acceptance by the Borrowers of the proceeds of the Loans requested hereby
constitute a representation and warranty by the Borrowers that, on and as of
the
date of such Loans, and immediately before and after giving effect thereto
and
to the application of the proceeds therefrom, all the representations and
warranties made by the Borrowers and the other Loan Parties made in or pursuant
to the other Loan Documents are true and correct in all material respects
(except for representations and warranties which by their terms relate to an
earlier date).
The
Borrowers agree that if prior to the time of the Borrowing requested hereby
any
matter certified to herein by it will not be true and correct at such time
as if
then made, they will immediately so notify the Lender. Except to the extent,
if
any, that prior to the time of the Borrowing requested hereby the Lender shall
receive written notice to the contrary from the Borrower, each matter certified
to herein shall be deemed once again to be certified as true and correct at
the
date of such Borrowing as if then made.
[Signature
page follows]
The
Borrowers have caused this Notice of Borrowing / Continuation to be executed
and
delivered, and the certification and warranties contained herein to be made,
by
its duly authorized officer this __th day of ___________________,
20__.]
[BORROWER]
By:
Name:
Title: