Exhibit 10.13
PROMISSORY NOTE
Maximum principal amount of dated as of January 11, 2002
Up to $47,500,000.00
FOR VALUE RECEIVED, the undersigned, SAC Holding Corporation, a Nevada
corporation (the "Maker" or the "undersigned"), promises to pay to the order of
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U-Haul International, Inc., a Nevada corporation, ("Payee"), at the principal
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office of the Payee at 2721 North Central Avenue, Phoenix, Arizona 85004 or at
such other place or places as the holder hereof may from time to time designate
in writing, the principal sum of up to Forty-Seven Million Five Hundred Thousand
and no/100ths Dollars ($47,500,000), with Interest on the principal balance
outstanding from time to time, all as hereinafter set forth.
1. Definitions. As used in this Note, each of the following terms shall
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have the following meanings, respectively:
"Accrual Rate": shall mean the annual interest rate of nine percent
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(9.0%).
"Additional Interest": shall mean and include both Dividend
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Contingent Interest and Return of Investment Contingent Interest.
"Affiliate": of any specified Person shall mean (i) any other Person
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controlling or controlled by or under common control with such specified
Person and (ii) any limited partner of such Person if such Person is a
limited partnership, any shareholder of such Person if such Person is a
corporation, or any member of such Person if such Person is a limited
liability company. For the purposes of this definition, "control," when
used with respect to any specified Person, means the power to direct the
management and policies of such person, directly or indirectly, whether
through the ownership of voting securities, by contract, or otherwise; and
the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Basic Interest": shall have the meaning given it in Section 2(a) and
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2(b) below.
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"Catch-Up Payment": shall have the meaning given it in Section 2(d).
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"Deferred Interest": shall have the meaning given it in Section 2(a).
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"Dividend Contingent Interest": shall have the meaning given it in
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Section 2(e) below.
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"Dividend Income": shall mean the income in the form of dividends
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received by Maker from the Project Owners (or any of them).
"GAAP": shall mean generally accepted accounting principles as used
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and understood in the United States of America from time to time.
"Gross Receipts": shall mean, for any period all gross receipts,
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revenues and income of any and every kind collected or received by or for
the benefit or account of Maker and/or the Project Owners during such
period arising from the ownership, rental, use, occupancy or operation of
the Project or any portion thereof. Gross Receipts shall include, without
limitation, all receipts from all tenants, licensees and other occupants
and users of the Project or any portion thereof, including, without
limitation, rents, security deposits and the like, interest earned and paid
or credited on all Maker's or the Project Owners' deposit accounts related
to the Project, all proceeds of rent or business interruption insurance,
and the proceeds of all casualty insurance or eminent domain awards to the
extent not (i) applied, or reserved and applied within six (6) months after
the creation of such reserve, to the restoration of the Project in
accordance with the Project Loan Documents, (ii) paid to Holder to reduce
the principal amount of the Loan or (iii) paid to reduce the principal
amount of the Project Loans. Gross Receipts shall include the net
commission payable from U-Haul International, Inc. or affiliates thereof
for the rental of its equipment at any Mortgaged Property; provided however
that such net commissions payable shall not be included in Gross Receipts
until the 15th day of the month following the month in which such rental
occurred, all in accordance with the customary procedure for the payment of
net commission. Gross Receipts shall not include any capital contributed
to Maker, whether in the form of a loan or equity, or any proceeds from any
loan made to Maker. Any receipt included within Gross Receipts in one
period shall not be included within Gross Receipts for any other period
(i.e., no item of revenue or receipts shall be counted twice).
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"Highest Lawful Rate": shall mean the maximum rate of interest which
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the Holder is allowed to contract for, charge, take, reserve, or receive
under applicable law after taking into account, to the extent required by
applicable law, any and all relevant payments or charges hereunder.
"Holder": shall mean at any particular time, the Person that is then
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the holder of this Note.
"Interest": shall mean Additional Interest, Basic Interest and
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Deferred Interest.
"Loan": shall mean the unsecured loan in the amount of up to
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$47,500,000.00 made by Payee to Maker and evidenced by this Note.
"Loan Year": shall mean a year commencing on the date of this Note,
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or an anniversary thereof, and ending 365 days (or 366 days in a leap year)
thereafter.
"Management Fee": shall mean the fee paid to the Project Manager
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pursuant to the Property Management Agreement which fee shall in no event
exceed six percent (6.0%) of Gross Receipts.
"Material Adverse Effect": shall mean the likely inability or
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reasonably anticipated inability of Maker to pay the Loan and perform its
other obligations in compliance this Note.
"Maturity Date": shall mean the first to occur of the Stated Maturity
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Date and the earlier date (if any) on which the unpaid principal balance
of, and unpaid Interest on, this Note shall become due and payable on
account of acceleration by the Holder hereof.
"Mortgaged Properties": shall mean the properties of the Project
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Owners identified on Schedule A hereto.
"Note": shall mean this Promissory Note as it may be amended,
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modified, extended or restated from time to time, together with all
substitutions and replacements therefor.
"Pay Rate": shall mean the annual interest rate of two percent
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(2.0%).
"Pay Rate Interest": shall mean for any period the amount of Basic
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Interest payable for such period less the amount of Deferred Interest which
accrued during such period.
"Person": shall mean any corporation, natural person, firm, joint
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venture, general partnership, limited partnership, limited liability
company, trust, unincorporated organization, government or any department
or agency of any government.
"Present Value": shall have the meaning given such term in Section
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4(c) below.
"Project": shall mean the real estate, the improvements and the
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personal property identified on Schedule A hereto, taken together
collectively
"Project Lender" shall mean UBS Warburg Real Estate Investments, Inc.
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or designee and/or such other Person who may extend a loan with respect to
the Project or any portion thereof, as the context may so require, in its
capacity as the lender under the Project Loans.
"Project Loan Documents": shall mean and include, at any time, all
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promissory notes, mortgages and other documents and instruments which
create, evidence or secure all or any part of the Project Loans.
"Project Loans": shall mean, collectively, (i) that certain loan in
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the amount of $12,966,000 made by Project Lender to the Twenty SAC Self
Storage Corporation; (ii) that certain loan in the amount of $14,607,000
made by Project Lender to the Twenty-One SAC Self Storage Corporation;
(iii) that certain loan in the amount of $11,416,000 made by Project Lender
to Twenty-Two SAC Self-Storage Corporation; (iv) that certain loan in the
amount of $11,511,000 made by Project Lender to Twenty-Three SAC Self-
Storage Corporation, each dated as of the date hereof.
"Project Manager": shall have the meaning given it in Section 6(i)
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below.
"Project Owners": shall mean, collectively, Twenty SAC Self-Storage
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Corporation, a Nevada corporation, Twenty-One SAC Self-Storage Corporation,
a Nevada corporation, Twenty-Two SAC Self-Storage Corporation, a Nevada
corporation, and Twenty-Three SAC Self-Storage Corporation, a Nevada
corporation, each of which being wholly-owned subsidiaries of Maker.
"Property Management Agreement": shall have the meaning given such
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term in Section 6(i) below.
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"Requirements of Law": shall mean, as to any Person, requirements as
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set out in the provisions of such Person's Articles of Incorporation and
Bylaws (in the case of a corporation) partnership agreement and certificate
or statement of partnership (in the case of a partnership) or other
organizational or governing documents, or as set out in any law, treaty,
rule or regulation, or final and binding determination of an arbitrator, or
determination of a court or other federal, state or local governmental
agency, authority or subdivision applicable to or binding upon such Person
or any of its property or to which such Person or any of its property is
subject, or in any private covenant, condition or restriction applicable to
or binding upon such Person or any of its property or to which such Person
or any of its property is subject.
"Return of Investment": shall mean any return to Maker of its
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investment in the Project Owners (or any of them) following a Sale or
Financing.
"Return of Investment Contingent Interest": shall have the meaning
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given it in Section 2(g) below.
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"Sale": shall mean any direct or indirect sale, assignment, transfer,
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conveyance, lease (except for leases or licenses of terms not exceeding 1
year to tenants in the ordinary course of business complying with standards
and in a form approved by Payee) or disposition of any kind whatsoever of
the Project, or of any portion thereof or interest (whether legal,
beneficial or otherwise) of 25% or more (in the aggregate of all such
sales, transfers, assignments, etc., made at any time or from time to time,
taken together) of all equity interests in Maker.
"Stated Maturity Date": shall mean the earlier of (i) January 1,
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2022, and (ii) from and after February 1, 2014, on demand by Payee.
"Tax and Insurance Escrow Account": shall mean any impound account
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established pursuant to the Project Loans, or any of them, and may include
without limitation, impounds for capital repairs and replacements.
"Triggering Event": shall have the meaning given it in Section
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2(h)(ii) below.
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"Yield Maintenance Premium": shall have the meaning given such term
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in Section 4(b) below.
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2. Interest.
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(a) Basic Interest Rate Prior to Maturity. Prior to the Maturity
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Date, interest ("Basic Interest") shall accrue on the principal balance of
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the Note outstanding from time to time at the Accrual Rate. Such interest
shall be paid monthly in arrears, on the first day of each month.
Notwithstanding the foregoing, Maker shall pay to Holder an amount
calculated by applying the Pay Rate to the principal balance outstanding
hereunder; and, the remainder of the Basic Interest accrued hereunder at
the Accrual Rate during such month through the last day of such month
("Deferred Interest") shall be deferred, shall be payable as and at the
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time provided in Section 2(d) below, and commencing on the day payment of
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Basic Interest at the Pay Rate is due for such month, interest shall accrue
on such Deferred Interest at the Accrual Rate (and any accrued interest
thereon, shall be considered part of Deferred Interest).
(b) Post-Maturity Basic Interest. From and after the Maturity Date
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interest ("Post Maturity Basic Interest") shall accrue and be payable on
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the outstanding principal balance hereof until paid in full at an annual
rate equal to fifteen percent (15%) and such Post Maturity Basic Interest
shall be payable upon demand.
(c) Computations. All computations of interest and fees payable
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hereunder shall be based upon a year of 360 days for the actual number of
days elapsed.
(d) Deferred Interest. Deferred Interest shall be paid as follows:
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(i) On each monthly date for the payment of Basic Interest,
Maker shall also pay an amount (the "Catch-Up Payment") equal to the
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lesser of (i) the aggregate outstanding Deferred Interest on the last
day of the month for which such payment is being made and (ii) ninety
percent (90%) of Maker's Dividend Income for such period plus an
additional amount equal to twice the Pay Rate Interest for such
period;
(ii) All unpaid Deferred Interest shall be paid on the Maturity
Date; and
(iii) No payment of Deferred Interest may, when added to all
other payments of interest or payments construed as interest, shall
exceed the Highest Lawful Rate.
(e) Dividend Contingent Interest. In addition to Basic Interest and
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Deferred Interest, on each date on which Basic Interest is payable
hereunder, Maker shall pay to Holder interest ("Dividend Contingent
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Interest") in an amount equal to the amount (if any) by which ninety
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percent (90%) of Maker's Dividend Income for that period plus an additional
amount equal to twice the Pay Rate Interest for such period (each
calculated as of that date) exceeds the Catch-Up Payment paid on that date
by Maker to Holder.
(f) Prorations of Dividend Contingent Interest. Dividend Contingent
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Interest shall be equitably prorated on the basis of a 365-day year for any
partial month in which the term of the Loan commences or in which the Note is
paid in full.
(g) Return of Investment Contingent Interest.
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(i) Return of Investment Contingent Interest Defined. Maker
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shall pay to Holder, in addition to Basic Interest, Deferred Interest and
Dividend Contingent Interest, at the time or times and in the manner
hereinafter described, an amount equal to ninety percent (90%) of Maker's
Return of Investment resulting following a Sale of the Project (or any
portion thereof) (any such event is hereinafter collectively referred to as
a "Sale or Financing") ("Return of Investment Contingent Interest");
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(ii) Notice of Sale or Financing; Time for Payment of Return of
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Investment Contingent Interest. Maker shall notify Holder of the
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occurrence of a Sale or Financing, and shall pay Holder the full amount of
any applicable Return of Investment Contingent Interest which is payable in
connection therewith, as follows:
(A) Maker shall give Holder written notice of any such Sale
or Financing not less than seventy five (75) days before the date such
event is to occur. Any Return of Investment Contingent Interest due Holder
on account of any Sale or Financing shall be paid to Holder on the date
such Triggering Event occurs.
(iii) Negative Return of Investment Contingent Interest.
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Notwithstanding any other provision of this Agreement, Holder shall not be
responsible or liable in any respect to Maker or any other Person for any
reduction in the fair market value of the Project or for any contingency,
condition or occurrence that might result in a negative number for Return
of Investment Contingent Interest. If at any time it is calculated, Return
of Investment Contingent Interest shall be a negative amount, no Return of
Investment Contingent Interest shall at that time be payable to Holder, but
Holder shall in no way be liable for any such negative amount and there
shall be no deduction or offset for such negative amount at any time when
Return of Investment Contingent Interest shall be subsequently calculated.
(iv) Usury Savings. No payment of Return of Investment
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Contingent Interest may, when added to all other payments of interest or
payments construed as interest, shall exceed the Highest Lawful Rate.
3. Usury Savings Clause. The provisions of this Section 3 shall govern
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and control over any irreconcilably inconsistent provision contained in this
Note or in any other document evidencing or securing the indebtedness evidenced
hereby. The Holder hereof shall never be entitled to receive, collect, or apply
as interest hereon (for purposes of this Section 3, the word "interest" shall be
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deemed to include Basic Interest, Additional Interest and any other sums treated
as interest under applicable law governing matters of usury and unlawful
interest), any amount in excess of the Highest Lawful Rate (hereinafter defined)
and, in the event the Holder ever receives, collects, or applies as interest any
such excess, such amount which would be excessive interest shall be deemed a
partial prepayment of principal and shall be treated hereunder as such; and, if
the principal of this Note is paid in full, any remaining excess shall forthwith
be paid to Maker. In determining whether or not the interest paid or payable,
under any specific contingency, exceeds the Highest Lawful Rate, Maker and the
Holder shall, to the maximum extent permitted under applicable law, (i)
characterize any nonprincipal payment as an expense, fee, or premium rather than
as interest, (ii) exclude voluntary prepayments and the effects thereof, and
(iii) spread the total amount of interest throughout the entire contemplated
term of this Note; provided, that if this Note is paid and performed in full
prior to the end of the full contemplated term hereof, and if the interest
received for the actual period of existence hereof exceeds the Highest Lawful
Rate, the Holder shall refund to Maker the amount of such excess or credit the
amount of such excess against the principal of this Note, and, in such event,
the Holder shall not be subject to any penalties provided by any laws for
contracting for, charging, or receiving interest in excess of the Highest Lawful
Rate.
4. Payments.
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(a) Interest. Maker promises to pay to the Holder hereof Basic
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Interest, Deferred Interest and Additional Interest as, in the respective
amounts, and at the respective times provided in Section 2 hereinabove. No
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principal payments shall be due hereunder except at the Stated Maturity
Date or as otherwise provided herein in the event of default. Each payment
of Basic Interest (including without limitation, Deferred Interest), and
Additional Interest on, or any other amounts of any kind with respect to,
this Note shall be made by the Maker to the Holder hereof at its office in
Phoenix, Arizona (or at any other place which the Holder may hereafter
designate for such purpose in a notice duly given to the Maker hereunder),
not later than noon, Pacific Standard Time, on the date due thereof; and
funds received after that hour shall be deemed to have been received by the
Holder on the next following business day. Whenever any payment to be made
under this Note shall be stated to be due on a date which is not a business
day, the due date thereof shall be extended to the next succeeding business
day, and interest shall be payable at the applicable rate during such
extension.
(b) Late Payment Charges. If any amount of Interest, principal or
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any other charge or amount which becomes due and payable under this Note is
not paid and received by the Holder within five business days after the
date it first becomes due and payable, Maker shall pay to the Holder hereof
a late payment charge in an amount equal to five percent (5%) of the full
amount of such late payment, whether such late payment is received prior to
or after the expiration of the ten-day cure period set forth in Section
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8(a). Maker recognizes that in the event any payment secured hereby (other
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than the principal payment due upon maturity of the Note, whether by
acceleration or otherwise) is not made when due, Holder will incur extra
expenses in handling the delinquent payment, the exact amount of which is
impossible to ascertain, but that a charge of five percent (5%) of the
amount of the delinquent payment would be a reasonable estimate of the
expenses so incurred. Therefore, if any such payment is not received when
due and payable, Maker pay to Holder to cover expenses incurred in handling
the delinquent payment, an amount calculated at five percent (5%) of the
amount of the delinquent payment.
(c) No Prepayment. Maker shall have the right to prepay this Note at
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any time, but only subject to the requirements and conditions set forth
below. If under any circumstances whatsoever (other than pursuant to
Section 3 above) this Note is paid in whole or in part, whether
voluntarily, following acceleration after the occurrence of an Event of
Default, with the consent of Holder, by operation of law or otherwise, and
whether or not such payment prior to the Stated Maturity Date results from
the Holder's exercise of its rights to accelerate the indebtedness
evidenced hereby, then Maker shall pay to the Holder the Yield Maintenance
Premium (defined hereinbelow) in addition to paying the entire unpaid
principal balance of this Note and all Interest which has accrued but is
unpaid except with the written consent of the Holder.
A Yield Maintenance Premium in an amount equal to the grater of (A)
one percent (1.0%) of the principal amount being prepaid, and (B) the
positive excess of (1) the present value ("PV") of all future installments
of principal and interest due pursuant to Section 4(a) of this Note absent
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any such prepayment including the principal amount due at the Stated
Maturity Date (collectively, "All Future Payments"), discounted at an
interest rate per annum equal to the sum of (a) the Treasury Constant
Maturity Yield Index published during the second full week preceding the
date on which such Yield Maintenance Premium is payable for instruments
having a maturity coterminous with the remaining term of this Note, and (b)
One Hundred Forty (140) basis points, over (2) the then outstanding
principal balance hereof immediately before such prepayment [(PV of All
Future Payments) (Principal balance at the time of prepayment) = Yield
Maintenance Premium]. "Treasury Constant Maturity Yield Index" shall mean
the average yield for "This Week" as reported by the Federal Reserve Board
in Federal Reserve Statistical Release H.15 (519). If there is no Treasury
Constant Maturity Yield Index for instruments having a maturity coterminous
with the remaining term of this Note, then the index shall be equal to the
weighted average yield to maturity of the Treasury Constant Maturity Yield
Indices with maturities next longer and shorter than such remaining average
life to the maturity, calculated by averaging (and rounding upward to the
nearest 1/100 of 1% per annum, if the average is not such a multiple) the
yields of the relevant Treasury Constant Maturity Yield Indices (rounded,
if necessary, to the nearest 1/100 of 1% with any figure of 1/200 of 1% or
above rounded upward). In the event that any Yield Maintenance Premium is
due hereunder, Holder shall deliver to Maker a statement setting forth the
amount and determination of the Yield Maintenance Premium and, provided
that Holder shall have in good faith applied the formula described above,
Maker shall not have the right to challenge the calculation or the method
of calculation set forth in any such statement in the absence of manifest
error, which calculation may be made by Holder on any day during the thirty
(30) day period preceding the date of such prepayment. Holder shall not be
obligated or required to have actually reinvested the prepaid principal
balance at the Treasury Constant Maturity Yield Index or otherwise as a
condition to receiving the Yield Maintenance Premium. No Yield Maintenance
Premium or premium shall be due or payable in connection with any
prepayment of the indebtedness evidenced by this Note made on or after any
date after January 1, 2008. In addition to the aforesaid Yield Maintenance
Premium if, upon any such prepayment (whether prior to or after any date
that is after January 1, 2008, the aforesaid prior written notice has not
been received by Holder, the Yield Maintenance Premium shall be increased
by an amount equal to the lesser of (i) thirty (30) days' unearned interest
computed in the outstanding principal balance of this Note, so prepaid and
(ii) unearned interest computed on the outstanding principal balance of
this Note so prepaid for the period from, and including, the date of
prepayment through the otherwise Stated Maturity Date of this Note.
Without limiting the scope of the foregoing provisions, the provisions
of this paragraph shall constitute, within the meaning of any applicable
state statute, both a waiver of any right Maker may have to prepay the
Note, in whole or in part, without premium or charge, upon acceleration of
the maturity of the Note, or otherwise, and an agreement by Maker to pay
the prepayment charge described in this Note, whether such prepayment is
voluntary or upon or following any acceleration of this Note, or otherwise,
and for such purpose Maker has separately initialed this provision in the
space provided below, and Maker hereby declares that Holder's agreement to
make the Loan to Maker at the interest rate and for the term set forth in
the Note constitutes adequate consideration, of individual weight, for this
waiver and agreement by Maker.
5. Representations and Warranties of Maker. Maker represents and warrants
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to Payee, as of the date hereof, that:
(a) Due Authorization. Maker is a corporation duly organized under
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the laws of the state of its organization, with the authority to consummate
the transactions contemplated hereby;
(b) No Violation. Maker's execution, delivery and performance of its
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obligations under the Project Loan Documents to which it is a party do not
and will not violate the articles of incorporation or by-laws of Maker and
will not violate, conflict with or constitute a default under any agreement
to which Maker is a party or by which the Project is bound or encumbered,
or violate any Requirements of Law to which Maker or the Project is
subject;
(c) Consents. No consents, approvals, filings, or notices of, with
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or to any Person are required on the part of Maker in connection with
Maker's execution, delivery and performance of its obligations hereunder
that have not been duly obtained, made or given, as the case may be;
(d) Enforceability. The Note is valid, binding and enforceable in
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accordance with its terms, except as the enforceability hereof may be
limited by bankruptcy, insolvency, moratorium, reorganization or similar
laws relating to or affecting the enforcement of creditors' rights
generally;
(e) Compliance with Laws. Each Mortgaged Property is in compliance
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in all material respects with all applicable Requirements of Law;
(f) Litigation. No litigation, investigation or proceeding or notice
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thereof before any arbitrator or governmental authority, agency or
subdivision which would have a material adverse effect upon the Maker or
the Project is pending or, to Maker's best knowledge, threatened, against
Maker or the Project;
(g) Utilities; Licenses. All utilities required by Requirements of
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Law or by the normal and intended use of the Project are installed to the
property line and connected by valid permits and the Maker possesses, or
will possess as and when necessary, all patents, patent rights or licenses,
trademarks, trade names, trade name right, service marks, copyrights,
licenses, permits and consents (or rights thereto) which are required to
conduct its business as it is now conducted or as it is presently proposed
to be conducted, or which are required by any governmental entity or
agency; and
(h) Place of Business. Maker's principal place of business is
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located at 715 South Country Club Drive, Mesa, AZ 85210.
6. Affirmative Covenants. Maker hereby covenants and agrees that, so long
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as any indebtedness under the Note remains unpaid, Maker shall:
(a) Use of Proceeds. Use the proceeds of the Loan to capitalize the
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Project Owners.
(b) Financial Statements. Deliver or cause to be delivered to
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Holder:
(i) As soon as available and in any event within 90
days after the end of each calendar year, annual financial reports on
the Project showing all income and expenses certified to be accurate
and complete by an officer of the Maker; and
(ii) As soon as available and in any event within 45
days after the end of each of the first three calendar quarters of
each year, (1) a detailed comparative earnings statement for such
quarter and for the period commencing at the end of the previous
fiscal year and ending with the end of such quarter, and (2) financial
reports on the Project showing all income and expenses, certified to
be accurate and complete by an officer of the managing general partner
of Maker (or, if Maker is a corporation, of Maker); and
(iii) Promptly, such additional financial and other
information (including, without limitation, information regarding the
Project) as Holder may from time to time reasonably request.
(c) Inspection of Property; Books and Records; Discussions. Keep
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proper books of record and account in which full, true and correct entries
in conformity with GAAP and all Requirements of Law shall be made of all
dealings and transactions in relation to its business and activities and,
upon reasonable notice, permit representatives of Holder to examine and
make abstracts from any of its books and records at any reasonable time and
as often as may reasonably be desired by Holder and to discuss the
business, operations, properties and financial and other conditions of
Maker with officers and employees of Maker and with its independent
certified public accountants. Such books and records shall be available
for at least five (5) years after the end of the relevant calendar month.
Holder shall have the right to inspect, copy and audit such books of
account and records at Holder's expense, during reasonable business hours,
and upon reasonable notice to Maker, for the purpose of verifying the
accuracy of any principal payments made. The costs of any such audit will
be paid by Holder, except that Maker shall pay all reasonable costs and
expenses of any such audit which discloses that any amount properly payable
by Maker to Holder hereunder exceeded by five percent (5%) or more the
amount actually paid and initially reported by Maker as being payable with
respect thereto.
(d) Notices. Give prompt written notice to Holder of (a) any claims,
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proceedings or disputes (whether or not purportedly on behalf of Maker)
against, or to Maker's knowledge, threatened or affecting Maker or the
Project which, if adversely determined, could reasonably be expected to
have a Material Adverse Effect (without in any way limiting the foregoing,
claims, proceedings, or disputes involving in the aggregate monetary
amounts in excess of $500,000 not fully covered by insurance shall be
deemed to be material), or (b) any proposal by any public authority to
acquire the Project or any portion thereof.
(e) Expenses. Pay all reasonable out-of-pocket expenses (including
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fees and disbursements of counsel, including special local counsel) of
Holder, incident to any amendments, waivers and renewals of this Note.
(f) Project Loan Documents. Comply with and observe all terms and
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conditions of the Project Loan Documents to which it is subject.
(g) INDEMNIFICATION. INDEMNIFY AND HOLD HARMLESS HOLDER AND ITS
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DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS AND AGENTS (THE "INDEMNIFIED
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PARTIES") FROM AND AGAINST ALL DAMAGES AND LIABILITIES (COLLECTIVELY AND
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SEVERALLY, "LOSSES") ASSESSED AGAINST ANY OF THEM RESULTING FROM THE CLAIMS
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OF ANY PARTY RELATING TO OR ARISING OUT OF THE TRANSACTIONS CONTEMPLATED
HEREBY, EXCEPT FOR LOSSES CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF SUCH INDEMNIFIED PARTY, AND REIMBURSE EACH INDEMNIFIED PARTY
FOR ANY EXPENSES (INCLUDING THE FEES AND DISBURSEMENTS OF LEGAL COUNSEL)
REASONABLY INCURRED IN CONNECTION WITH THE INVESTIGATION OF, PREPARATION
FOR OR DEFENSE OF ANY ACTUAL OR THREATENED CLAIM, ACTION OR PROCEEDING
ARISING THEREFROM (INCLUDING ANY SUCH COSTS OF RESPONDING TO DISCOVERY
REQUEST OR SUBPOENAS), REGARDLESS OF WHETHER HOLDER OR SUCH OTHER
INDEMNIFIED PERSON IS A PARTY THERETO. IT IS ACKNOWLEDGED AND AGREED BY
MAKER THAT THE INDEMNIFICATION RIGHTS OF THE INDEMNIFIED PARTIES HEREUNDER
ARE IN ADDITION TO AND CUMULATIVE WITH ALL OTHER RIGHTS OF THE INDEMNIFIED
PARTIES. WITH REFERENCE TO THE PROVISIONS SET FORTH ABOVE IN THIS SECTION
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6(g) FOR PAYMENT BY MAKER OF ATTORNEYS' FEES INCURRED BY THE INDEMNIFIED
----
PARTIES IN ANY ACTION OR CLAIM BROUGHT BY A THIRD PARTY, MAKER SHALL, IF IT
ADMITS LIABILITY HEREUNDER TO ANY INDEMNIFIED PARTY, DILIGENTLY DEFEND SUCH
INDEMNIFIED PARTY AND DILIGENTLY CONDUCT THE DEFENSE. IF HOLDER OR ANY
OTHER SUCH INDEMNIFIED PARTY DESIRES TO ENGAGE SEPARATE COUNSEL, IT MAY DO
SO AT ITS OWN EXPENSE; PROVIDED, HOWEVER, THAT SUCH LIMITATION ON THE
OBLIGATION OF MAKER TO PAY THE FEES OF SEPARATE COUNSEL FOR SUCH
INDEMNIFIED PARTY SHALL NOT APPLY IF SUCH INDEMNIFIED PARTY HAS RETAINED
SAID SEPARATE COUNSEL BECAUSE OF A REASONABLE BELIEF THAT MAKER IS NOT
DILIGENTLY DEFENDING IT AND/OR NOT DILIGENTLY CONDUCTING THE DEFENSE AND SO
NOTIFIES MAKER. THE OBLIGATIONS OF MAKER UNDER THIS SECTION 6(g) SHALL
------------
SURVIVE REPAYMENT IN FULL OF THE INDEBTEDNESS EVIDENCED HEREBY. EXCEPT AS
OTHERWISE PROVIDED HEREIN, IT IS THE INTENT OF THIS SECTION 6(g) THAT THE
------------
MAKER SHALL INDEMNIFY AND HOLD HARMLESS THE INDEMNIFIED PARTIES FROM LOSSES
OCCASIONED BY THE ACTS OR OMISSIONS, INCLUDING, WITHOUT LIMITATION,
NEGLIGENCE, OF THE INDEMNIFIED PARTIES.
(g) Co-operation. Execute and deliver to Holder any and all
------------
instruments, documents and agreements, and do or cause to be done from time to
time any and all other acts, reasonably deemed necessary or desirable by Holder
to effectuate the provisions and purposes of this Note.
(h) Requirements of Law. Comply at all times with all Requirements
-------------------
of Law.
(i) Management Agreement. Cause or permit the Project to be
--------------------
initially managed by subsidiaries of U-Haul International, Inc. or to be at
all times managed by a nationally recognized self-storage property
management company (the "Project Manager") approved by the Holder, which
---------------
Project Manager shall be employed pursuant to an agreement (the "Property
--------
Management Agreement") approved by the Holder. In no event shall the fees
--------------------
paid (or required to be paid) to the Project Manager exceed six percent
(6%) of Gross Receipts for any time period.
7. Negative Covenants. Maker hereby agrees that, as long as any
------------------
indebtedness under the Note remains unpaid, Maker shall not, directly or
indirectly:
(a) Indebtedness. Create, incur or assume any Indebtedness except
------------
for: (i) the Loan; (ii) Maker's contingent obligations under the Project
Loans; (iii) non-delinquent taxes; (iv) unsecured debt incurred in the
ordinary course of business and (v) other indebtedness owed to Payee and
its affiliates.
(b) Consolidation and Merger. Liquidate or dissolve or enter into
------------------------
any consolidation, merger, partnership, joint venture, syndicate or other
combination (except for a merger or consolidation for the purpose of, and
having the effect of changing Maker's jurisdiction of organization).
(c) Transactions with Affiliates. Purchase, acquire or lease any
----------------------------
property from, or sell, transfer or lease any property to, or lend or
advance any money to, or borrow any money from, or guarantee any obligation
of, or acquire any stock, obligations or securities of, or enter into any
merger or consolidation agreement, or any management or similar agreement
with, any Affiliate, or enter into any other transaction or arrangement or
make any payment to (including, without limitation, on account of any
management fees, service fees, office charges, consulting fees, technical
services charges or tax sharing charges) or otherwise deal with, in the
ordinary course of business or otherwise, any Affiliate on terms which are
unreasonably burdensome or unfair, except (i) transactions relating to the
sharing of overhead expenses, including, without limitation, managerial,
payroll and accounting and legal expenses, for which charges assessed
against Maker are not greater than would be incurred by Maker in similar
transactions with non-Affiliates, (ii) fair and reasonable transactions
between Maker and U-Haul International, Inc. and its related companies, and
(iii) guarantees of the recourse obligations of Maker's subsidiaries in
connection with any financing by such subsidiaries.
(d) Sale of Interests in the Project or in the Maker. Without
------------------------------------------------
obtaining the prior written consent of Holder (which Holder may withhold or
condition in its sole and absolute discretion), cause, permit or acquiesce
in any Sale or Financing.
(e) Distributions. Notwithstanding anything to the contrary
-------------
contained in this Note or the Project Loan Documents, Maker shall not make
any distributions to any of its partners or shareholders, except for
distributions of amounts not in excess of (i) the Catch-Up Amount for any
quarter, (ii) any Net Cash Flow for any quarter remaining after the payment
to Holder of all Interest and the Catch-Up Amount payable for and with
respect to such quarter, and (iii) upon the Sale or Financing any Net Sale
or Financing proceeds remaining after payment to Holder of the amounts to
which Holder is entitled hereunder in connection therewith.
(f) Business. Engage, directly or indirectly, in any business other
--------
than that arising out of the issuance of this Note, entering into the
Project Loan Documents to which it is a party and any other loan documents
with regard to financing by any of Maker's subsidiaries, and taking the
actions required to be performed under the Project Loan Documents and under
the loan documents under such other financings.
(g) No Bankruptcy Filing. To the extent permitted by law, without
--------------------
the unanimous consent of the Board of Directors of the Maker (for these
purposes such Board of Directors will not include any committee thereof)
voluntarily file any petition for bankruptcy, reorganization, assignment
for the benefit of creditors or similar proceeding.
(h) No Joint Venture. Engage in a joint venture or become a partner
----------------
with any other Person.
8. Event of Default; Remedies. Any one of the following occurrences
--------------------------
shall constitute an Event of Default under this Note:
(a) The failure by the Maker to make any payment of principal,
Interest or Yield Maintenance Premium upon this Note as and when the same
becomes due and payable in accordance with the provisions hereof, and the
continuation of such failure for a period of ten (10) days after notice
thereof to the Maker;
(b) The failure by the Maker to deposit in any account established
and maintained pursuant to any collection account agreement any amount
required to be deposited in such account within 2 days of when required
pursuant to the terms of such collection account agreement;
(c) The failure by Maker to perform any obligation under, or the
occurrence of any other default with respect to any provision of, this Note
other than as described in any of the other clauses of this Section 8, and
the continuation of such default for a period of 30 days after written
notice thereof to the Maker;
(d) (i) Maker shall file, institute or commence any case, proceeding
or other action (A) under any existing or future law of any jurisdiction,
domestic or foreign, relating to bankruptcy, insolvency, reorganization or
relief of debtors, seeking to have an order for relief entered with respect
to it, or seeking to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation,
dissolution, composition or other relief with respect to it or its debts,
or (B) seeking appointment of a receiver, trustee, custodian or other
similar official for it or for all or any substantial part of its assets,
or Maker shall make a general assignment for the benefit of its creditors;
or (ii) there shall be filed, instituted or commenced against Maker any
case, proceeding or other action of a nature referred to in clause (i)
above which (A) results in the entry of any order for relief or any such
adjudication or appointment, or (B) remains undismissed undischarged for a
period of 60 days; or (iii) there shall be commenced against Maker any
case, proceeding or other action seeking issuance of a warrant of
attachment, execution, distraint or similar process against all or
substantially all of its assets which results in the entry of an order for
any such relief which shall not have been vacated, discharged, stayed,
satisfied, or bonded to Holder's satisfaction pending appeal, within 60
days from the first entry thereof; or (iv) Maker shall take any action in
furtherance of, or indicating its consent to, approval of, or acquiescence
in, any of the acts described in any of the preceding clauses (i) , (ii) or
(iii); or (v) Maker shall not, or shall be unable to, or shall admit in
writing its inability to, pay its debts as they become due, or shall in
writing admit that it is insolvent; or
(e) One or more judgments or decrees in an aggregate amount exceeding
$1,000,000.00 shall be entered against Maker and all such judgments or
decrees shall not have been vacated, discharged, stayed, satisfied, or
bonded to Holder's satisfaction pending appeal within 60 days from the
first entry thereof; or
Upon the occurrence of any Event of Default hereunder, the entire unpaid
principal balance of, and any unpaid Basic Interest and Additional Interest then
accrued on, this Note together with the Yield Maintenance Premium, if any,
shall, at the option of the Holder hereof and without demand or notice of any
kind to the undersigned or any other person, immediately become and be due and
payable in full (except that such acceleration shall occur automatically upon
the occurrence of any Event of Default described in the preceding clause (d) of
this Section 8, without further action or decision by Holder); and the Holder
shall have and may exercise any and all rights and remedies available at law or
in equity.
9. Offset. In addition to (and not in limitation of) any rights of offset
------
that the Holder hereof may have under applicable law, upon the occurrence of any
Event of Default hereunder the Holder hereof shall have the right, immediately
and without notice, to appropriate and apply to the payment of this Note any and
all balances, credits, deposits, accounts or moneys of the Maker then or
thereafter with or held by the Holder hereof. Notwithstanding the foregoing,
there shall be no offset against this Note any amounts otherwise payable to the
Project Owners (or any of them), whether pursuant to any lease between the
Project Owners and affiliates of Maker, or otherwise.
10. Allocation of Balances or of Payments. At any and all times until
-------------------------------------
this Note and all amounts hereunder (including principal, Interest, and other
charges and amounts, if any) are paid in full, all payments (whether of
principal, Interest or other amounts) made by the undersigned or any other
person (including any guarantor) to the Holder hereof may be allocated by the
Holder to principal, Interest or other charges or amounts as the Holder may
determine in its sole, exclusive and unreviewable discretion (and without notice
to or the consent of any person).
11. Captions. Any headings or captions in this Note are inserted for
--------
convenience of reference only, and they shall not be deemed to constitute a part
hereof, nor shall they be used to construe or interpret the provisions of this
Note.
12. Waiver.
------
(a) Maker, for itself and for its successors, transferees and assigns
and all guarantors and endorsers, hereby waives diligence, presentment and
demand for payment, protest, notice of protest and nonpayment, dishonor and
notice of dishonor, notice of the intention to accelerate, notice of
acceleration, and all other demands or notices of any and every kind
whatsoever (except only for any notice of default expressly provided for in
Section 8 of this Note) and the undersigned agrees that this Note and any
or all payments coming due hereunder may be extended from time to time in
the sole discretion of the Holder hereof without in any way affecting or
diminishing their liability hereunder.
(b) No extension of the time for the payment of this Note or any
payment becoming due or payable hereunder, which may be made by agreement
with any Person now or hereafter liable for the payment of this Note, shall
operate to release, discharge, modify, change or affect the original
liability under this Note, either in whole or in part, of the Maker if it
is not a party to such agreement.
(c) No delay in the exercise of any right or remedy hereunder shall
be deemed a waiver of such right or remedy, nor shall the exercise of any
right or remedy be deemed an election of remedies or a waiver of any other
right or remedy. Without limiting the generality of the foregoing, the
failure of the Holder hereof promptly after the occurrence of any Event of
Default hereunder to exercise its right to declare the indebtedness
remaining unmatured hereunder to be immediately due and payable shall not
constitute a waiver of such right while such Event of Default continues nor
a waiver of such right in connection with any future Event of Default on
the part of the undersigned.
13. Payment of Costs. The undersigned hereby expressly agrees that upon
----------------
the occurrence of any Event of Default under this Note, the undersigned will pay
to the Holder hereof, on demand, all costs of collection or enforcement of every
kind, including (but not limited to) all attorneys' fees, court costs, and other
costs and expenses of every kind incurred by the Holder hereof, on demand, all
costs of collection or enforcement of every kind, including (but not limited to)
all attorneys' fees, court costs, and other costs and expenses of every kind
incurred by the Holder hereof in connection with the protection or realization
of any or all of the security for this Note, whether or not any lawsuit is ever
filed with respect thereto.
14. The Project Loan Documents. This Note is unsecured. The Project
--------------------------
Loans are secured by, inter alia, certain Deeds of Trust, Mortgages, and Deeds
----- ----
to Secure Debt, Assignment of Leases and Rents, Security Agreement and Financing
Statement, made and granted by subsidiaries of Maker to or for the benefit of
the Project Lender, which create liens on real estate in the Project and which
also creates a security interest in personal property located thereat or
utilized in connection therewith, and each and every additional document or
instrument which may at any time be delivered to the Project Lender as security
under the Project Loans, as any of the same may at any time or from time to time
be amended, modified or restated, and together with all substitutions and
replacements therefor. Reference should be made to the Project Loan Documents
for a description of the property encumbered thereby and the nature and extent
of the security thereof. Notwithstanding anything to the contrary set forth or
implied herein, this Note is not indebtedness of the Project Owners or any of
them, and is not secured, whether directly or indirectly, by the Project or any
collateral or property owned or operated by the Project Owners, or any of them.
15. Notices. All notices, demands and other communications hereunder to
-------
either party shall be made in writing and shall be deemed to have been given
when actually received or, if mailed, on the first to occur of actual receipt or
the third business day after the deposit thereof in the United States mails, by
registered or certified mail, postage prepaid, addressed as follows:
If to the Maker: SAC Holding Corporation
715 South Country Club Drive
Mesa, AZ 85210
Attention: President
If to the Holder: U-Haul International, Inc.
2721 North Central Avenue
Phoenix, Arizona 85004
Attention: Treasurer
or to either party at such other address as such party may designate as its
address for the receipt of notices hereunder in a written notice duly given to
the other party. In addition, a copy of any notice of default sent to Maker
shall also be sent to the following:
Project Lender: UBS Warburg Real Estate Investments Inc.
1285 Avenue of the Americas, 11th Floor
New York, New York 10019
Attention: Robert Pettinato, Director
Telecopier: (212) 713-2099
with a copy to: Cadwalader, Wickersham & Taft
100 Maiden Lane
New York, New York 10038
Attention: Fredric L. Altschuler, Esq.
Telecopier: (212) 504-6666
16. Time of the Essence. Time is hereby declared to be of the essence of
-------------------
this Note and of every part hereof.
17. Governing Law. This Note shall be governed by and construed in
-------------
accordance with the internal laws of the State of Arizona.
18. Jurisdiction. In any controversy, dispute or question arising
------------
hereunder, the Maker consents to the exercise of jurisdiction over its person
and property by any court of competent jurisdiction situated in the State of
Arizona (whether it be a court of the State of Arizona, or a court of the United
States of America situated in the State of Arizona), and in connection
therewith, agrees to submit to, and be bound by, the jurisdiction of such court
upon the Holder's mailing of process by registered or certified mail, return
receipt requested, postage prepaid, within or without the State of Arizona, to
the Maker at its address for receipt of notices under this Note.
19. HOLDER NOT PARTNER OF MAKER. UNDER NO CIRCUMSTANCES WHATSOEVER SHALL
---------------------------
THE HOLDER OF THIS NOTE BE DEEMED TO BE A PARTNER OR A CO-VENTURER WITH MAKER OR
WITH ANY OTHER PERSON. MAKER SHALL NOT REPRESENT TO ANY PERSON THAT THE MAKER
AND THE HOLDER HEREOF ARE PARTNERS OR CO-VENTURERS. ANY AND ALL ACTIONS BY THE
HOLDER HEREOF IN EXERCISING ANY RIGHTS, REMEDIES OR PRIVILEGES HEREOF OR IN
ENFORCING THIS NOTE WILL BE EXERCISED BY THE HOLDER SOLELY IN FURTHERANCE OF ITS
ROLE AS A SECURED LENDER.
20. JURY TRIAL. THE MAKER HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY
----------
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
NOTE, OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR
WHICH MAY IN THE FUTURE BE DELIVERED IN CONNECTION HEREWITH OR THEREWITH OR
ARISING FROM ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS NOTE, AND AGREES
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY.
21. Entire Agreement. This Note constitutes the entire agreement between
----------------
Maker and Payee. No representations, warranties, undertakings, or promises
whether written or oral, expressed or implied have been made by the Payee or its
agent unless expressly stated in this Note.
IN WITNESS WHEREOF, the undersigned has executed and delivered this Note,
pursuant to proper authority duly granted, as of the date and year first above
written.
SAC HOLDING CORPORATION
a Nevada corporation
By: /S/ Mark V. Shoen
----------------------------------
Mark V. Shoen, President
Schedule A
Description of the Project
Number Name Street Address City State Zip
700026 U-HAUL CTR OF BEND 63370 N HWY 97 BEND OR 97701
707075 U-HAUL CTR THORNTON 4833 THORNTON AVE FREMONT CA 94536
708078 U-HAUL CTR BELMONT 554 EL CAMINO REAL BELMONT CA 94002
710077 U-HAUL OF FLORIN RD 3026 FLORIN RD SACRAMENTO WEST CA 95822
712032 U-HAUL CENTER DOWNTOWN 1836 S ARAPAHOE ST LOS ANGELES CA 90006
717068 U-HAUL LEMON GROVE 1805 MASSACHUSETT AV LEMON GROVE CA 91945
721021 U-HAUL CENTER 19TH & BELL 1935 WEST BELL ROAD PHOENIX WEST AZ 85023
721058 U-HAUL 51ST & GLENDALE 5024 WEST GLENDALE GLENDALE AZ 85301
AVENUE
723082 U-HAUL MAIN&LINDSAY 2947 E MAIN MESA AZ 85203
734024 U-HAUL STATE AVE 5200 STATE AVE KANSAS CITY KS 66102
736071 U-HAUL CT HAZELWOOD 8961 DUNN ROAD HAZELWOOD MO 63042
738057 U-HAUL DOWNTOWN 100 SE SECOND OKLAHOMA CITY OK 73129
741035 U-HAUL CENTER ADDISON 2735 BELT LINE ROAD CARROLLTON TX 75006
742054 U-HAUL KANIS ROAD 7618 KANIS ROAD LITTLE ROCK AR 72204
744068 U-HAUL AUSTIN HWY 2390 AUSTIN HIGHWAY SAN ANTONIO TX 78218
744070 U-HAUL NACO-PERRIN 12534 NACGODOCHES SAN ANTONIO TX 78217
744080 U-HAUL SAN PEDRO 5810 SAN PEDRO SAN ANTONIO TX 78212
747069 U-HAUL CAUSEWAY BLV 3800 N CAUSEWAY BLVD METAIRIE LA 70002
747074 U-HAUL CT GENTILLY 6210 CHEF MENTEUR HY NEW ORLEANS LA 70126
751022 U-HAUL JOLLY CEDAR 5020 S CEDAR LANSING MI 48910
752069 U-HAUL CAROUSEL MALL 29500 MICHIGAN AVE INKSTER MI 48141
770054 U-HAUL CTR METRO 1340 E THIRD STREET DAYTON OH 45403
772061 U-HAUL HENDERSONVIL 208 W MAIN ST HENDERSONVILLE TN 37075
776053 U-HAUL CT PETERS ST 300 PETERS ST SW ATLANTA EAST GA 30313
790066 U-HAUL CTR RT 295 411 MARGINAL WAY PORTLAND ME 4101
791023 U-HAUL SPRINGFIELD 914 BOSTON ROAD SPRINGFIELD MA 1101
795028 U-HAUL CENTER OF MANASSAS PARK 8537 CENTREVILLE ROAD MANASSAS VA 20111
796058 U-HAUL CTR WARWICK 279 OAKLAND BEACH AV WARWICK RI 2886
806024 U-HAUL CENTER CORAM 532 MDL COUNTRY ROAD CORAM NY 11727
813020 U-HAUL CENTER ROUTE 37 68 ROUTE 37 EAST TOMS RIVER NJ 8753
820022 U-HAUL CT PULASKI HY 4301 PULASKI HIGHWAY BALTIMORE MD 21224
825067 U-HAUL AIRLINE CTR 2855 AIRLINE BLVD PORTSMOUTH VA 23701
828059 U-HAUL CTR ORACLE 4655 N ORACLE TUCSON AZ 85705
828068 U-HAUL W INA RD 4040 W INA RD TUCSON AZ 85741
835081 U-HAUL NORTHWEST 9929 HARRY HINES BLVD DALLAS TX 75220
836033 WESTCREEK VILLAGE U-HAUL CTR 3019 ALTA MESA BLVD FORT WORTH TX 76133
836044 U-HAUL CENTER ARLINGTON 2315 WEST DIVISION ARLINGTON TX 76012