UNITED STATES BANKRUPTCY COURT
DISTRICT OF NEVADA
.
BK-03-52103-GWZ and BK-03-5270-GWZ
In re
Jointly Administered under
BK-03-52103-GWZ
AMERCO, a Nevada corporation, et. al.,
Chapter 11
Debtors.
Hon. Gregg W. Zive
- --------------------------------------------------------------------------------
FIRST AMENDED JOINT PLAN OF REORGANIZATION OF AMERCO AND
AMERCO REAL ESTATE COMPANY, DEBTORS AND DEBTORS-IN-POSSESSION
- --------------------------------------------------------------------------------
Craig D. Hansen Bruce T. Beesley
Thomas J. Salerno Bridget Peck
G. Christopher Meyer BEESLEY, PECK & MATTEONI, LTD
Sean T. Cork 5011 Meadowood Mall Way, Suite 300
SQUIRE, SANDERS & DEMPSEY L.L.P. Reno, Nevada 89502
Two Renaissance Square, Suite 2700 (775) 827-8666
40 North Central Avenue
Phoenix, Arizona 85004 Co-Counsel for Debtors and
(602) 528-4000 Debtors-in-Possession
Attorneys for Debtors and Debtors-in-Possession
Dated: November 26, 2003
TABLE OF CONTENTS
PAGE
INTRODUCTION ................................................................ 1
ARTICLE I DEFINITIONS, RULES OF INTERPRETATION, AND COMPUTATION OF TIME.... 1
A. Scope of Definitions .................................................. 1
B. Definitions ........................................................... 2
1.1 "503 Deadline" .................................................. 2
1.2 "Administrative Claim" .......................................... 2
1.3 "Administrative Claims Bar Date" ................................ 2
1.4 "Affiliate" ..................................................... 2
1.5 "Allowed Claim" or "Allowed Interest" ........................... 2
1.6 "Amended and Restated Articles of Incorporation" ................ 2
1.7 "AMERCO" ........................................................ 2
1.8 "AMERCO/AREC Guaranty Obligations" .............................. 2
1.9 "AMERCO Notes" .................................................. 2
1.10 "AMERCO Unsecured Claims" ....................................... 3
1.11 "AREC" .......................................................... 3
1.12 "AREC Note Claims" .............................................. 3
1.13 "AREC Notes" .................................................... 3
1.14 "AREC Syndication Terms" ........................................ 3
1.15 "Avoidance Claims" .............................................. 3
1.16 "Ballot" ........................................................ 3
1.17 "Bank of America Swap" .......................................... 3
1.18 "Bankruptcy Code" ............................................... 3
1.19 "Bankruptcy Court" .............................................. 3
1.20 "Bankruptcy Rules" .............................................. 3
1.21 "Bar Date" ...................................................... 3
1.22 "Bar Date Order" ................................................ 4
1.23 "BBATs" ......................................................... 4
1.24 "BEAT Swaps" .................................................... 4
1.25 "BMO Guaranty Claim" ............................................ 4
1.26 "BMO Master Lease" .............................................. 4
1.27 "BMO Properties" ................................................ 4
1.28 "BMO Secured Claim" ............................................. 4
1.29 "BMO Valuation Hearing" ......................................... 4
1.30 "Business Day" .................................................. 4
1.31 "Carey Cash Proceeds" ........................................... 4
1.32 "Carey Sale Agreement" .......................................... 4
1.33 "Carey Sale Transaction" ........................................ 4
1.34 "Cash" .......................................................... 5
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(continued)
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1.35 "Causes of Action" ................................................... 5
1.36 "Chapter 11 Cases" ................................................... 5
1.37 "Citibank Guaranty Claim" ............................................ 5
1.38 "Citibank Master Lease" .............................................. 5
1.39 "Citibank Properties" ................................................ 5
1.40 "Citibank Secured Claim" ............................................. 5
1.41 "Citibank Valuation Hearing" ......................................... 5
1.42 "Claim" .............................................................. 5
1.43 "Claimholder" ........................................................ 5
1.44 "Claims Agent" ....................................................... 5
1.45 "Class" .............................................................. 6
1.46 "Class Actions" ...................................................... 6
1.47 "Confirmation Date" .................................................. 6
1.48 "Confirmation Hearing" ............................................... 6
1.49 "Confirmation Order" ................................................. 6
1.50 "Creditor" ........................................................... 6
1.51 "Creditors' Committee" ............................................... 6
1.52 "Cure" ............................................................... 6
1.53 "D&O Insurance Policies" ............................................. 6
1.54 "Debtors" ............................................................ 6
1.55 "Derivative Actions" ................................................. 6
1.56 "Derivative Claims" .................................................. 7
1.57 "DIP Agent" .......................................................... 7
1.58 "DIP Credit Agreement" ............................................... 7
1.59 "DIP Facility" ....................................................... 7
1.60 "DIP Facility Claim" ................................................. 7
1.61 "DIP Facility Order" ................................................. 7
1.62 "DIP Lenders" ........................................................ 7
1.63 "Disallowed Claim" or "Disallowed Interest" .......................... 7
1.64 "Disclosure Statement" ............................................... 7
1.65 "Disputed Claim" or "Disputed Interest" .............................. 7
1.66 "Distribution Date" .................................................. 8
1.67 "Effective Date" ..................................................... 8
1.68 "Effective Date Interest" ............................................ 8
1.69 "Equity Committee" ................................................... 8
1.70 "Estates" ............................................................ 8
1.71 "Exchange Act" ....................................................... 8
1.72 "Exhibit" ............................................................ 8
1.73 "Exhibit Filing Date" ................................................ 8
1.74 "Existing Common Stock" .............................................. 8
1.75 "Existing Debt Securities" ........................................... 8
1.76 "Existing SAC Holding Notes" ......................................... 9
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1.77 "Exit Financing Facility" .............................................. 9
1.78 "Face Amount" .......................................................... 9
1.79 "Final Order" .......................................................... 9
1.80 "Holdback Amount" ...................................................... 9
1.81 "Impaired" ............................................................. 9
1.82 "Indemnification Obligation" ........................................... 9
1.83 "Indentures" ........................................................... 9
1.84 "Indenture Trustees" ................................................... 9
1.85 "Indenture Trustees Charging Lien" ..................................... 9
1.86 "Indenture Trustee Fees" ............................................... 10
1.87 "Insurance First Day Order" ............................................ 10
1.88 "Intercompany Claim" ................................................... 10
1.89 "Interest" ............................................................. 10
1.90 "Interestholder" ....................................................... 10
1.91 "JPMorgan" ............................................................. 10
1.92 "JPMorgan Chase Credit Facility" ....................................... 10
1.93 "JPMorgan Claims" ...................................................... 10
1.94 "JPMorgan Support Party Obligation" .................................... 10
1.95 "JPMorgan Swap" ........................................................ 10
1.96 "JPMorgan Syndication Terms" ........................................... 10
1.97 "Key Ordinary Course Professional" ..................................... 10
1.98 "Key Ordinary Course Professional Claim" ............................... 10
1.99 "Miscellaneous Secured Claims" ......................................... 10
1.100 "New AMERCO Notes" ..................................................... 11
1.101 "New AMERCO Notes Indenture" ........................................... 11
1.102 "New BMO Guaranty" ..................................................... 11
1.103 "New Citibank Guaranty" ................................................ 11
1.104 "New Debt Securities" .................................................. 11
1.105 "New Term Loan A Notes" ................................................ 11
1.106 "New Term Loan B Notes" ................................................ 11
1.107 "New Term Loan B Notes Indenture" ...................................... 11
1.108 "Non-Debtor Subsidiaries" .............................................. 11
1.109 "Ordinary Course Professional Order" ................................... 11
1.110 "Other Interests" ...................................................... 11
1.111 "Other Priority Claims" ................................................ 11
1.112 "Other Unsecured Claims" ............................................... 12
1.113 "Oxford" ............................................................... 12
1.114 "Oxford Note Claims" ................................................... 12
1.115 "Person" ............................................................... 12
1.116 "Petition Date" ........................................................ 12
1.117 "Plan" ................................................................. 12
1.118 "Plan Support Agreement" ............................................... 12
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1.119 "PMSR" .............................................................. 12
1.120 "PMSR Agreement" .................................................... 12
1.121 "PMSR Facility" ..................................................... 12
1.122 "PMSR Support Agreement" ............................................ 13
1.123 "PMSR Support Obligations" .......................................... 13
1.124 "Preferred Stock Interests" ......................................... 13
1.125 "Prepetition Agent" ................................................. 13
1.126 "Prepetition Lenders" ............................................... 13
1.127 "Prepetition Lender Claims" ......................................... 13
1.128 "Prepetition Note Claims" ........................................... 13
1.129 "Priority Claims" ................................................... 13
1.130 "Priority Tax Claim" ................................................ 13
1.131 "Professional" ...................................................... 13
1.132 "Professional Claim" ................................................ 13
1.133 "Professional Fee Bar Date" ......................................... 13
1.134 "Professional Fee Order" ............................................ 13
1.135 "Pro Rata" .......................................................... 13
1.136 "PwC" ............................................................... 14
1.137 "PwC Litigation" .................................................... 14
1.138 "Record Date" ....................................................... 14
1.139 "Reinstated" or "Reinstatement" ..................................... 14
1.140 "Released Parties" .................................................. 14
1.141 "Reorganized AMERCO" ................................................ 14
1.142 "Reorganized AREC" .................................................. 14
1.143 "Reorganized Debtor" or "Reorganized Debtors" ....................... 14
1.144 "Restated BMO Master Lease" ......................................... 14
1.145 "Restated Citibank Master Lease" .................................... 15
1.146 "Restructuring Agreement (Revolver Lenders)" ........................ 15
1.147 "Restructuring Agreement (AREC Noteholders)" ........................ 15
1.148 "RepWest" ........................................................... 15
1.149 "Retained Actions" .................................................. 15
1.150 "Retiree Benefits" .................................................. 15
1.151 "SAC Holding" ....................................................... 15
1.152 "SAC Holding Note Documents" ........................................ 15
1.153 "SAC Holding Senior Notes" .......................................... 15
1.154 "SAC Holding Senior Notes Indenture" ................................ 15
1.155 "SAC Holding Participation and Subordination Agreement" ............. 15
1.156 "Scheduled" ......................................................... 16
1.157 "Schedules" ......................................................... 16
1.158 "Secured Claims" .................................................... 16
1.159 "Securities Act" .................................................... 16
1.160 "Securities Action" ................................................. 16
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1.161 "Statutory Committees" ........................................... 16
1.162 "Subordinated Claims (Common)" ................................... 16
1.163 "Subordinated Claims (Preferred)" ................................ 16
1.164 "Subsidiary" ..................................................... 16
1.165 "Subsidiary Interests" ........................................... 16
1.166 "Terminated Swaps" ............................................... 16
1.167 "U-Haul" ......................................................... 16
1.168 "UH Storage" ..................................................... 17
1.169 "Unimpaired" ..................................................... 17
1.170 "Unsecured Deficiency Claim" ..................................... 17
1.171 "Voting Deadline" ................................................ 17
1.172 "Workers' Compensation Program" .................................. 17
C. Rules of Interpretation ............................................... 17
D. Computation of Time ................................................... 18
E. References to Monetary Figures ........................................ 18
F. Exhibits .............................................................. 18
ARTICLE II ADMINISTRATIVE CLAIMS, PRIORITY TAX CLAIMS, AND OTHER
UNCLASSIFIED CLAIMS ............................................. 18
2.1 Administrative Claims ............................................ 18
2.2 Priority Tax Claims .............................................. 19
2.3 Workers' Compensation Programs Claims ............................ 19
2.4 Retiree Benefits ................................................. 19
2.5 Claims for Professional Fees ..................................... 19
2.6 Claims of DIP Lender ............................................. 19
ARTICLE III CLASSIFICATION OF CLAIMS AND INTERESTS ......................... 20
3.1 Class 1 .......................................................... 20
3.2 Class 2 .......................................................... 20
3.3 Class 3 .......................................................... 20
3.4 Class 4 .......................................................... 20
3.5 Class 5 .......................................................... 20
3.6 Class 6 .......................................................... 20
3.7 Class 7 .......................................................... 20
3.8 Class 8 .......................................................... 20
3.9 Class 9 .......................................................... 20
3.10 Class 10 ......................................................... 20
3.11 Class 11 ......................................................... 20
3.12 Class 12 ......................................................... 20
3.13 Class 13 ......................................................... 20
3.14 Class 14 ......................................................... 20
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ARTICLE IV IDENTIFICATION OF CLASSES OF CLAIMS AND INTERESTS
IMPAIRED AND UNIMPAIRED BY THE PLAN ................................. 21
4.1 Classes of Claims and Interests That Are Unimpaired .............. 21
4.2 Impaired Classes of Claims ....................................... 21
ARTICLE V PROVISIONS FOR TREATMENT OF CLAIMS AND INTERESTS .................... 21
5.1 Class 1 (JPMorgan Claims) (Impaired) ............................ 21
5.2 Class 2 (Other Priority Claims) (Unimpaired) .................... 22
5.3 Class 3 (Citibank Secured Claim and Citibank Guaranty Claim)
(Impaired) ....................................................... 22
5.4 Class 4 (BMO Secured Claim and BMO Guaranty Claim) (Impaired).... 24
5.5 Class 5 (Other Unsecured Claims) (Unimpaired) ................... 25
5.6 Class 6 (AREC Note Claims) (Impaired) ........................... 25
5.7 Class 7 (AMERCO Unsecured Claims) (Impaired) .................... 26
5.8 Class 8 (Oxford Note Claims) (Unimpaired) ....................... 26
5.9 Class 9 (Miscellaneous Secured Claims) (Unimpaired) ............. 26
5.10 Class 10 (Intercompany Claims) (Unimpaired) ...................... 27
5.11 Class 11 (AMERCO/AREC Guaranty Obligations (Unimpaired) .......... 27
5.12 Class 12 (Preferred Stock Interests and Subordinated Claims)
(Unimpaired) ..................................................... 27
5.13 Class 13 (Existing Common Stock, Other Interests and
Subordinated Claims) (Unimpaired) ................................ 27
5.14 Class 14 (Subsidiary Interests) .................................. 28
ARTICLE VI ACCEPTANCE OR REJECTION OF THE PLAN; EFFECT OF
REJECTION BY ONE OR MORE IMPAIRED CLASSES OF
CLAIMS OR INTERESTS ................................................ 28
6.1 Impaired Classes of Claims Entitled to Vote ...................... 28
6.2 Classes Deemed to Accept the Plan ................................ 28
6.3 Acceptance by Impaired Classes ................................... 28
6.4 Classes Deemed to Reject the Plan ................................ 28
6.5 Confirmation Pursuant to Section 1129(b) of the Bankruptcy Code... 28
ARTICLE VII MEANS FOR IMPLEMENTATION OF THE PLAN ................................ 29
7.1 Continued Corporate Existence .................................... 29
7.2 Directors and Officers of AMERCO ................................. 29
7.3 Listing on Securities Exchange or Quotation System ............... 30
7.4 SAC Holding Participation ........................................ 30
7.5 Cancellation of Existing Debt Securities and Issuance of New Debt
Securities ....................................................... 30
7.6 Emergence Date Financing ......................................... 31
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7.7 Preservation of Causes of Action ................................ 31
7.8 Exclusivity Period .............................................. 31
7.9 Corporate Action ................................................ 31
7.10 Effectuating Documents; Further Transactions .................... 32
7.11 Exemption From Certain Transfer Taxes and Recording Fees ........ 32
ARTICLE VIII EXECUTORY CONTRACTS AND UNEXPIRED LEASES .......................... 32
8.1 Executory Contracts ............................................. 32
8.2 Approval of Assumption or Rejection ............................. 32
8.3 Cure of Defaults ................................................ 33
8.4 Bar Date ........................................................ 33
ARTICLE IX PROVISIONS GOVERNING DISTRIBUTIONS ................................ 33
9.1 Record Date ..................................................... 33
9.2 Time of Distributions ........................................... 33
9.3 No Interest on Claims or Interests .............................. 33
9.4 Reorganized Debtors as Disbursing Agent ......................... 33
9.5 Surrender of Securities or Instruments .......................... 34
9.6 Services of Indenture Trustees, Agents and Servicers ............ 34
9.7 Claims Administration Responsibility ............................ 34
9.8 Delivery of Distributions ....................................... 35
9.9 Procedures for Treating and Resolving Disputed and Contingent
Claims .......................................................... 35
9.10 Fractional Securities; Fractional Dollars ....................... 36
ARTICLE X ALLOWANCE AND PAYMENT OF CERTAIN
ADMINISTRATIVE CLAIMS ............................................. 36
10.1 DIP Facility Claim .............................................. 36
10.2 Professional Claims ............................................. 36
10.3 Substantial Contribution Compensation and Expenses Bar Date ..... 37
10.4 Other Administrative Claims ..................................... 37
ARTICLE XI EFFECT OF THE PLAN ON CLAIMS AND INTERESTS ........................ 37
11.1 Revesting of Assets ............................................. 37
11.2 Discharge of the Debtors ........................................ 38
11.3 Compromises and Settlements ..................................... 38
11.4 Releases, Exculpation and Related Matters ....................... 38
11.5 Setoffs ......................................................... 40
11.6 Subordination Rights ............................................ 40
11.7 Indemnification Obligations ..................................... 40
11.8 D&O Insurance Policies .......................................... 40
11.9 Injunction ...................................................... 40
11.10 PMSR Agreement ............................... .................. 40
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ARTICLE XII CONDITIONS PRECEDENT .......................................... 41
12.1 Conditions to Confirmation................................... 41
12.2 Conditions to the Effective Date............................. 41
12.3 Waiver of Conditions to Confirmation or Effective Date....... 41
ARTICLE XIII RETENTION OF JURISDICTION.................................... 42
ARTICLE XIV MISCELLANEOUS PROVISIONS..................................... 43
14.1 Binding Effect............................................... 43
14.2 Modification and Amendments.................................. 43
14.3 Withholding and Reporting Requirements....................... 44
14.4 Revocation, Withdrawal or Non-Consummation................... 44
14.5 Notices...................................................... 44
14.6 Term of Injunctions or Stays................................. 45
14.7 Governing Law................................................ 45
14.8 No Waiver or Estoppel........................................ 45
14.9 Severability................................................. 45
14.10 Conflicts.................................................... 45
viii
EXHIBITS
Exhibit A -1 -- Exit Financing Facility Commitment Letter
Exhibit A -2 -- Exit Financing Facility Agreement
Exhibit B -- Plan Support Agreement (Creditors' Committee)
Exhibit C -- Restructuring Agreement (AREC Noteholders)
Exhibit D -- Restructuring Agreement (Revolver Lenders)
Exhibit E -- SAC Holding Participation and Subordination Agreement
Exhibit F -- AMERCO/AREC Guaranty Obligations
Exhibit G -- PMSR Agreement
Exhibit H -- Restated BMO Master Lease
Exhibit I -- Restated Citibank Master Lease
Exhibit J -- New BMO Guaranty
Exhibit K -- New Citibank Guaranty
Exhibit L -- New AMERCO Notes Indenture
Exhibit M -- New Term Loan B Notes Indenture
Exhibit N -- SAC Holding Senior Notes Indenture
Exhibit O -- Restated Articles of Incorporation of Reorganized AMERCO
Exhibit P -- Restated Articles of Incorporation of Reorganized AREC
ix
INTRODUCTION
AMERCO and its wholly-owned subsidiary, Amerco Real Estate Company, as
debtors and debtors-in-possession in the above-captioned jointly administered
Chapter 11 Cases, together with SAC Holding Corporation ("SAC") and SAC Holding
II Corporation, each a Nevada corporation (together with SAC, collectively, "SAC
Holding") hereby propose the following First Amended Joint Plan of
Reorganization for the resolution of the outstanding Claims against and
Interests in the Debtors. Capitalized terms used herein shall have the meanings
ascribed to such terms in Article I.B. of this Plan. The Debtors and SAC Holding
are proponents of this Plan within the meaning of Section 1129 of the Bankruptcy
Code.
The direct and indirect subsidiaries of AMERCO and Amerco Real Estate
Company have not commenced cases under Chapter 11 of the Bankruptcy Code. These
subsidiaries, including, without limitation, U-Haul International, Inc., Oxford
Life Insurance Company and Republic Western Insurance Company, continue to
operate their businesses outside of bankruptcy.
Under Section 1125(b) of the Bankruptcy Code, a vote to accept or
reject this Plan cannot be solicited from a Claimholder until such time as the
Disclosure Statement has been approved by the Bankruptcy Court and distributed
to Claimholders. In this case, the Disclosure Statement was approved by the
Bankruptcy Court by order entered on December [12], 2003, and has been
distributed simultaneously with this Plan to all parties whose votes are being
solicited. The Disclosure Statement contains, among other things, a discussion
of the Debtors' and SAC Holding's history, business, properties and operations,
projections for those operations, risk factors associated with the business and
Plan, a summary and analysis of this Plan, and certain related matters
including, among other things, the securities to be issued pursuant to this Plan
by the Reorganized Debtors and SAC Holding. ALL CLAIMHOLDERS ARE ENCOURAGED TO
READ THIS PLAN AND THE DISCLOSURE STATEMENT AND RELATED SOLICITATION MATERIALS
IN THEIR ENTIRETY BEFORE VOTING TO ACCEPT OR REJECT THIS PLAN.
Subject to certain restrictions and requirements set forth in Section
1127 of the Bankruptcy Code and Bankruptcy Rule 3019 and those restrictions on
modifications set forth in Article 14.2 of this Plan, each of the Debtors
expressly reserves its respective rights to alter, amend, modify, revoke or
withdraw this Plan with respect to such Debtor, one or more times, prior to this
Plan's substantial consummation.
ARTICLE I
DEFINITIONS, RULES OF
INTERPRETATION, AND COMPUTATION OF TIME
A. SCOPE OF DEFINITIONS
For purposes of this Plan, except as expressly provided or unless the
context otherwise requires, all capitalized terms not otherwise defined shall
have the meanings ascribed to them in Article I.B. of this Plan. Any term used
in this Plan that is not defined herein, but is defined in the Bankruptcy Code
or the Bankruptcy Rules, shall have the meaning ascribed to that term in the
Bankruptcy Code or the Bankruptcy Rules.
1
B. DEFINITIONS
1.1 "503 DEADLINE" means the deadline for any Person who
requests compensation or expense reimbursement for making a substantial
contribution in the Chapter 11 Cases pursuant to Sections 503(b)(3), (4), and
(5) of the Bankruptcy Code to file an application with the clerk of the
Bankruptcy Court, which shall be forty-five (45) days after the Effective Date.
1.2 "ADMINISTRATIVE CLAIM" means a Claim for any cost or
expense of administration of the Chapter 11 Cases allowed under Sections 503(b),
507(b) or 546(c)(2) of the Bankruptcy Code and entitled to priority under
Section 507(a)(1) of the Bankruptcy Code, including, without limitation: (a)
fees payable under 28 U.S.C. Section 1930; (b) actual and necessary costs and
expenses incurred in the ordinary course of the Debtors' business; (c) actual
and necessary costs and expenses of preserving the Debtors' Estates or
administering the Chapter 11 Cases; (d) DIP Facility Claims; (e) all
Professional Fees to the extent allowed by Final Order under Sections 330, 331,
or 503 of the Bankruptcy Code; and (f) Indenture Trustees Fees.
1.3 "ADMINISTRATIVE CLAIMS BAR DATE" means the deadline
for filing proofs or requests for payment of Administrative Claims, which shall
be forty-five (45) days after the Effective Date, unless otherwise ordered by
the Bankruptcy Court, except with respect to Professional Claims, which shall be
subject to the provisions of Article 10.2 hereof.
1.4 "AFFILIATE" has the meaning given such term by
Section 101(2) of the Bankruptcy Code.
1.5 "ALLOWED CLAIM" or "ALLOWED INTEREST" means,
respectively, except as otherwise allowed or provided for in this Plan, a Claim
or an Interest, proof of which was timely and properly filed or, if no proof of
claim or proof of interest was filed, which has been or hereafter is listed by
the Debtors in their Schedules as liquidated in amount and not disputed or
contingent, and in either case, as to which no objection to the allowance
thereof has been interposed on or before the later of: (a) 45 days after the
Effective Date; or (b) such other applicable period of limitation as may be
fixed or extended by the Bankruptcy Court, or as to which any objection has been
determined by a Final Order to the extent such objection is determined in favor
of the respective holder.
1.6 "AMENDED AND RESTATED ARTICLES OF INCORPORATION"
means the articles of incorporation of the Reorganized Debtors, amended and
restated to the extent necessary to comply with the provisions of Section
1123(a)(6) of the Bankruptcy Code, in substantially the form attached hereto as
Exhibit O and Exhibit P.
1.7 "AMERCO" means AMERCO, a Nevada corporation, debtor
and debtor-in-possession in Case No. 03-52103 pending in the Bankruptcy Court.
1.8 "AMERCO/AREC GUARANTY OBLIGATIONS" means those
obligations of the Debtors guarantying the obligations of certain of their
direct and indirect subsidiaries, as set forth in Exhibit F.
1.9 "AMERCO NOTES" means, collectively, the following:
(a) the $175,000,000 in original principal amount of 7.85% Senior Notes due 2003
issued by AMERCO pursuant to that certain Indenture, dated as of May 1, 1996,
between AMERCO, as Issuer, and Citibank, N.A., as Trustee, as supplemented; (b)
the $200,000,000 in original principal amount of 8.80% Senior Notes due 2005
issued by AMERCO pursuant to that certain Senior Indenture, dated as of April 1,
1999, between AMERCO and the Bank of New York, as Trustee, as supplemented; and
(c) the $110,000,000 in medium-term notes
2
issued pursuant to that certain Indenture, dated September 10, 1999, as
supplemented, between AMERCO and The Bank of New York, as successor Indenture
Trustee to The First National Bank of Chicago.
1.10 "AMERCO UNSECURED CLAIMS" means any Claim arising
under, from or relating to the following: (a) the AMERCO Notes; (b) the BBATs;
(c) the Terminated Swaps; (d) the JPMorgan Support Party Obligation; and (e)
Effective Date Interest.
1.11 "AREC" means Amerco Real Estate Company, a Nevada
corporation, debtor and debtor-in-possession in Case No. 03-52790 pending in the
Bankruptcy Court.
1.12 "AREC NOTE CLAIMS" means any Claim arising under,
from or relating to the AREC Notes.
1.13 "AREC NOTES" means, collectively, the following: (a)
the $95,000,000 original principal amount of Senior Secured Notes, Series A, due
April 30, 2012; and (b) the $5,000,000 original principal amount of Senior
Notes, Series B, due April 30, 2007, each issued by AREC under that certain Note
Purchase Agreement, dated March 15, 2002, as amended or modified from time to
time, between AREC and the holders of such Series A and Series B Notes.
1.14 "AREC SYNDICATION TERMS" means those Syndication
Terms described in an exhibit to the Restructuring Agreement (AREC Noteholders).
1.15 "AVOIDANCE CLAIMS" means Causes of Action against
Persons arising under any of Sections 510, 547, 548, 549, 550 and 551 (to the
extent the latter two Sections are applicable to the other statutory sections
referred to in this Article 1.15) of the Bankruptcy Code, or under similar or
related state or federal statutes and common law, including fraudulent transfer
laws, whether or not litigation has been commenced as of the Confirmation Date
to prosecute such Avoidance Claims.
1.16 "BALLOT" means each of the ballot forms that are
distributed with the Disclosure Statement to Claimholders included in Classes
that are Impaired under this Plan and entitled to vote under Article 6.1 of this
Plan to accept or reject this Plan.
1.17 "BANK OF AMERICA SWAP" means that certain ISDA Master
Agreement, dated as of September 11, 1997, between AMERCO and Bank of New York,
with an aggregate termination amount of $2,141,800.
1.18 "BANKRUPTCY CODE" means the Bankruptcy Reform Act of
1978, as amended and codified in title 11 of the United States Code, 11 U.S.C.
Sections 101-1330, as in effect on the date hereof.
1.19 "BANKRUPTCY COURT" means the United States Bankruptcy
Court for the District of Nevada or such other court as may have jurisdiction
over the Chapter 11 Cases.
1.20 "BANKRUPTCY RULES" means the Federal Rules of
Bankruptcy Procedure and the Official Bankruptcy Forms, as amended, the Federal
Rules of Civil Procedure, as amended, as applicable to the Chapter 11 Cases or
proceedings therein, and the Local Rules of the Bankruptcy Court, as applicable
to the Chapter 11 Cases or proceedings therein, as the case may be.
1.21 "BAR DATE" means the deadline set by the Bankruptcy
Court pursuant to the Bar Date Order or other Final Order for filing proofs of
claim in the Chapter 11 Cases. For all prepetition Claims, the Bar Date is
November 10, 2003.
3
1.22 "BAR DATE ORDER" means the order entered by the
Bankruptcy Court on September 30, 2003, which established November 10, 2003 as
the Bar Date (Docket No. 415).
1.23 "BBATs" means the 7.135% Series 1997-C Bond Backed
Asset Trust Certificates due October 15, 2002, in the original principal amount
of $100,000,000 issued by AMERCO pursuant to that certain Trust Agreement, dated
as of October 22, 1997, as amended or modified from time to time, between
AMERCO, as depositer, and The Bank of New York as successor Trustee to IBJ
Schroder Bank & Trust Company.
1.24 "BBAT SWAPS" means the following interest rate swap
agreements: (a) that certain ISDA Master Agreement, dated as of October 8, 1997,
between AMERCO and Citibank, N.A., New York dated October 3, 2002, with an
aggregate termination amount of $15,266,722.28; and (b) that certain ISDA Master
Agreement, dated as of September 11, 1997, between AMERCO and Bank of America,
N.A. (f/k/a NationsBank, N.A.) with an aggregate termination amount of
$11,284,099.
1.25 "BMO GUARANTY CLAIM" means all Claims arising under
or related to that certain Amended and Restated Guaranty, dated July 27, 1999
(amending and restating the Guaranty dated December 8, 1996), by AMERCO in favor
of (i) Bank of Montreal and each of the other various financial institutions, as
the Lenders, (ii) BMO Global Capital Solutions, Inc. and the other various
lessors, as Lessors, (iii) BMO Capital Solutions, Inc., as Agent Lessor for the
Lessors, and (iv) Bank of Montreal, as Administrative Agent for the Lenders and
as Arranger.
1.26 "BMO MASTER LEASE" means that certain Amended and
Restated Master Lease Agreement and Open End Mortgage, dated as of July 27,
1999, as amended, by and among BMO Global Solutions, Inc., and the various
Persons party thereto, U-Haul and AREC.
1.27 "BMO PROPERTIES" means the real property that is
subject to the BMO Master Lease.
1.28 "BMO SECURED CLAIM" means any Secured Claim arising
under, from or relating to the BMO Master Lease.
1.29 "BMO VALUATION HEARING" means the hearing to be
conducted by the Bankruptcy Court pursuant to Article 5.4(a)(iii) of the Plan
and Sections 506 and 1129(b) of the Bankruptcy Code with respect to the BMO
Properties, as such hearing may be adjourned or continued from time to time.
1.30 "BUSINESS DAY" means any day, excluding Saturdays,
Sundays and "legal holidays" (as defined in Bankruptcy Rule 9006(a)), on which
commercial banks are open for business in Nevada.
1.31 "CAREY CASH PROCEEDS" means the Cash proceeds
received by AREC and U-Haul from the Carey Sale Transaction pursuant to the
terms of the Carey Sale Agreement.
1.32 "CAREY SALE AGREEMENT" means that certain Purchase
and Sale Agreement, dated as of June 6, 2003, by and among AREC, U-Haul and UH
Storage, including any amendment, modification, supplement and exhibit thereto.
1.33 "CAREY SALE TRANSACTION" means that certain
transaction or series of transactions related to the sale of the Citibank
Properties and BMO Properties pursuant to the Carey Sale Agreement.
4
1.34 "CASH" means currency, checks drawn on a bank insured
by the Federal Deposit Insurance Corporation, certified checks, money orders,
negotiable instruments, and wire transfers of immediately available funds.
1.35 "CAUSES OF ACTION" means any and all actions,
proceedings, causes of action, suits, accounts, controversies, agreements,
promises, rights to legal remedies, rights to equitable remedies, rights to
payment and claims, whether known, unknown, reduced to judgment, not reduced to
judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured,
disputed, undisputed, secured or unsecured and whether asserted or assertable
directly or derivatively, in law, equity or otherwise, including Avoidance
Claims and Derivative Claims, unless otherwise waived or released by the Debtors
or the Reorganized Debtors.
1.36 "CHAPTER 11 CASES" means the Chapter 11 Cases of the
Debtors pending in the Bankruptcy Court and being jointly administered with one
another under Case No. 03-52103-GWZ, and the phrase "Chapter 11 Case" when used
with reference to a particular Debtor shall mean the particular case under
Chapter 11 of the Bankruptcy Code commenced by such Debtor in the Bankruptcy
Court.
1.37 "CITIBANK GUARANTY CLAIM" means all Claims arising
under or related to that certain Parent Guaranty, dated September 24, 1999, by
AMERCO in favor of Citicorp USA, Inc., as Agent for the benefit of the Note
Holders and the Certificate Holders, BMO Global Capital Solutions, Inc., as
Lessor under the Lease, and Citibank N.A., as APA Agent for the benefit of he
APA Purchasers.
1.38 "CITIBANK MASTER LEASE" means that certain Master
Lease, dated as of September 24, 1999, as amended, between BMO Global Capital
Solutions, Inc., and AREC.
1.39 "CITIBANK PROPERTIES" means the real property that is
subject to the Citibank Master Lease.
1.40 "CITIBANK SECURED CLAIM" means any Secured Claim
arising under, from or relating to the Citibank Master Lease.
1.41 "CITIBANK VALUATION HEARING" means the hearing to be
conducted by the Bankruptcy Court pursuant to Article 5.3(a)(iii) of the Plan
and Sections 506 and 1129(b) of the Bankruptcy Code with respect to the Citibank
Properties, as such hearing may be adjourned or continued from time to time.
1.42 "CLAIM" means a claim against one or both of the
Debtors or their property, whether or not asserted in the Bankruptcy Cases, as
defined in Section 101(5) of the Bankruptcy Code, including, without limitation:
(a) any right to payment, whether or not such right is reduced to judgment,
liquidated, unliquidated, fixed, contingent, mature, unmatured, disputed,
undisputed, legal, equitable, secured, or unsecured arising at any time before
the Effective Date; (b) any right to an equitable remedy for breach of
performance if such breach gives rise to a right to payment, whether or not such
right to an equitable remedy is reduced to judgment, fixed, contingent, matured,
unmatured, disputed, undisputed, secured, or unsecured; (c) any claim arising
from rescission of or for damages from the purchase or sale of Existing Debt
Securities; or (d) any claim for reimbursement or contribution associated with
Existing Debt Securities.
1.43 "CLAIMHOLDER" means a holder of a Claim.
1.44 "CLAIMS AGENT" means The Trumbull Group, LLC, P.O.
Box 721, Windsor, Connecticut 06095, Attn: Ronnie Kryjak.
5
1.45 "CLASS" means a category of Claimholders or
Interestholders described in Article III of this Plan.
1.46 "CLASS ACTIONS" means, collectively, the following
class action lawsuits: (1) Article Four Trust v. AMERCO, et al., District of
Nevada, United States District Court, Case No. CV-N-03-0050-DWH-VPC; (2) Mates
v. AMERCO, et al., United States District Court, District of Nevada, Case No.
CV-N-03-0107; (3) Klug v. AMERCO, et al., United States District Court of
Nevada, Case No. CV-S-03-0380; and (4) IG Holdings v. AMERCO, et al., United
States District Court, District of Nevada, Case No. CV-N-03-0199.
1.47 "CONFIRMATION DATE" means the date of entry of the
Confirmation Order.
1.48 "CONFIRMATION HEARING" means the hearing before the
Bankruptcy Court held to consider confirmation of this Plan and related matters
under Section 1128 of the Bankruptcy Code, as such hearing may be adjourned or
continued from time to time.
1.49 "CONFIRMATION ORDER" means the order entered by the
Bankruptcy Court confirming this Plan.
1.50 "CREDITOR" means any holder of a Claim, whether or
not such Claim is an Allowed Claim, encompassed within the statutory definition
set forth in Section 101(10) of the Bankruptcy Code.
1.51 "CREDITORS' COMMITTEE" means the Official Committee
of Unsecured Creditors appointed pursuant to Section 1102(a) of the Bankruptcy
Code in the Chapter 11 Cases, as the membership thereof may change from time to
time.
1.52 "CURE" means: (a) the cure of any non-monetary
defaults to the extent required, if at all, pursuant to Section 365 of the
Bankruptcy Code; and (b) with respect to monetary defaults, the distribution
within a reasonable period of time following the Effective Date of Cash, or such
other property as may be agreed upon by the parties or ordered by the Bankruptcy
Court, with respect to the assumption (or assumption and assignment) of an
executory contract or unexpired lease, pursuant to Section 365(b) of the
Bankruptcy Code, in an amount equal to all unpaid monetary obligations or such
other amount as may be agreed upon by the parties, under such executory contract
or unexpired lease, to the extent such obligations are enforceable under the
Bankruptcy Code and applicable non-bankruptcy law; provided, further, that in
the event that a Debtor assumes an unexpired lease or executory contract, any
guarantee provided by another Debtor related to such unexpired lease or
executory contract shall be deemed Reinstated under the Plan if the failure of
such guarantee to remain in force and effect would constitute a default under
such assumed unexpired lease or executory contract.
1.53 "D&O INSURANCE POLICIES" means any directors and
officers liability insurance policy or any applicable errors and omissions
policy applicable to directors and officers of AMERCO and AREC, their
Subsidiaries and Affiliates, or the Reorganized Debtors.
1.54 "DEBTORS" means AMERCO and AREC.
1.55 "DERIVATIVE ACTIONS" means, collectively, the
following lawsuits: (1) Paul F. Shoen vs. SAC Holding Corporation et. al.,
CV02-05602, in the Second Judicial District Court of the State of Nevada, Washoe
County; (2) Ron Belec vs. William E. Carty, et al, CV 02-06331, in the Second
Judicial District Court of the State of Nevada, Washoe County; (3) M.S.
Management Company, Inc. vs.
6
William E. Carty, et. al, CV 03-00386, in the Second Judicial District Court of
the State of Nevada, Washoe County, along with two additional derivative suits
against the same parties.
1.56 "DERIVATIVE CLAIMS" means any and all claims of the
Debtors against any of their respective officers, directors, representatives,
agents or employees based upon a breach or alleged breach by such Person of any
duties owed to the Debtors.
1.57 "DIP AGENT" means the administrative agent for the
DIP Lenders as defined in the DIP Credit Agreement.
1.58 "DIP CREDIT AGREEMENT" means that certain Senior
Secured, Super-Priority Debtor-in Possession Loan and Security Agreement, dated
as of August 15, 2003, as amended, supplemented or otherwise modified from time
to time, and all documents executed in connection therewith, by and among the
Debtors, the DIP Agent, and the DIP Lenders, which was executed by the Debtors
in connection with the DIP Facility.
1.59 "DIP FACILITY" means the debtor-in-possession secured
financing facility in the original principal amount of $300,000,000 provided to
the Debtors by the DIP Lenders pursuant to the DIP Credit Agreement as
authorized by the Bankruptcy Court pursuant to the DIP Facility Order.
1.60 "DIP FACILITY CLAIM" means all Administrative Claims
of the DIP Agent and the DIP Lenders arising under or pursuant to the DIP
Facility, including, without limitation, principal and interest on the DIP
Facility, plus all reasonable fees and expenses (including professional fees and
expenses) arising under the DIP Facility.
1.61 "DIP FACILITY ORDER" means, collectively, (i) the
interim order that was entered by the Bankruptcy Court on August 14, 2003, (ii)
the final order that was entered by the Bankruptcy Court on September 23, 2003,
authorizing and approving the DIP Facility and the agreements related thereto,
and (iii) any and all orders entered by the Bankruptcy Court authorizing and
approving amendments to the DIP Credit Agreement.
1.62 "DIP LENDERS" means the lenders from time to time
party to the DIP Credit Agreement.
1.63 "DISALLOWED CLAIM" or "DISALLOWED INTEREST" means a
Claim or any portion thereof, or an Interest or any portion thereof, that: (a)
has been disallowed by a Final Order; (b) is Scheduled at zero or as contingent,
disputed or unliquidated and as to which a proof of claim or interest bar date
has been established but no proof of claim or interest has been timely filed or
deemed timely filed with the Bankruptcy Court pursuant to either the Bankruptcy
Code or any Final Order of the Bankruptcy Court or otherwise deemed timely filed
under applicable law; or (c) is not Scheduled and as to which a proof of claim
or interest bar date has been set but no proof of claim or interest has been
timely filed or deemed timely filed with the Bankruptcy Court pursuant to either
the Bankruptcy Code or any Final Order of the Bankruptcy Court or otherwise
deemed timely filed under applicable law.
1.64 "DISCLOSURE STATEMENT" means the written disclosure
statement that relates to this Plan, as approved by the Bankruptcy Court
pursuant to Section 1125 of the Bankruptcy Code and Bankruptcy Rule 3017, as
such disclosure statement may be amended, modified or supplemented from time to
time.
1.65 "DISPUTED CLAIM" or "DISPUTED INTEREST" means a Claim
or any portion thereof, or an Interest or any portion thereof, that is neither
an Allowed Claim nor a Disallowed Claim, or an
7
Allowed Interest or a Disallowed Interest, as the case may be, and includes,
without limitation, Claims or Interests that: (a) have not been Scheduled by the
Debtors or have been Scheduled at zero, or have been Scheduled as unknown,
contingent, unliquidated or disputed, whether or not such Claims or Interests
are the subject of a proof of claim or proof of interest in the Bankruptcy
Court; (b) are the subject of a proof of claim or interest that differs in
nature, amount or priority from the Schedules; or (c) are the subject of an
objection filed with the Bankruptcy Court, which has not been withdrawn or
overruled by a Final Order of the Bankruptcy Court.
1.66 "DISTRIBUTION DATE" means the date, selected by the
Debtors or Reorganized Debtors, occurring as soon as practicable after the
Effective Date as determined by the Reorganized Debtors, upon which
distributions to holders of Allowed Claims and Allowed Interests entitled to
receive distributions under this Plan shall commence.
1.67 "EFFECTIVE DATE" means the Business Day determined by
the Debtors on which all conditions to the consummation of this Plan set forth
in Article 12.2 of this Plan have been either satisfied or waived as provided in
Article 12.3 of this Plan and is the day upon which this Plan is substantially
consummated.
1.68 "EFFECTIVE DATE INTEREST" means, to the extent
actually permitted under the respective underlying agreements evidencing Allowed
AMERCO Unsecured Claims, the sum of (a) all accrued and unpaid interest at the
default rate, if applicable, or otherwise at the non-default contract rate, as
of the Petition Date, and (b) all accrued and unpaid interest, at the
non-default contract rate, after the Petition date through and including the
Effective Date.
1.69 "EQUITY COMMITTEE" means the Official Committee of
Equity Security Holders appointed pursuant to Section 1102(a) of the Bankruptcy
Code in the Chapter 11 Cases, as the membership thereof may change from time to
time.
1.70 "ESTATES" means the bankruptcy estates of the Debtors
created pursuant to Section 541 of the Bankruptcy Code.
1.71 "EXCHANGE ACT" means the Securities Exchange Act of
1934, as now in effect or hereafter amended.
1.72 "EXHIBIT" means an exhibit annexed to either this
Plan, in a supplement to the Plan or as an appendix to the Disclosure Statement.
1.73 "EXHIBIT FILING DATE" means the date on which
Exhibits to this Plan or the Disclosure Statement shall be filed with the
Bankruptcy Court, which date shall be on or before November 26, 2003, except
with respect to Exhibit A-2, Exhibit E, Exhibit L, Exhibit M, and Exhibit N,
which shall be filed with the Bankruptcy Court at least seven (7) days prior to
the commencement of the Confirmation Hearing.
1.74 "EXISTING COMMON STOCK" means shares of common stock,
par value $0.25 per share, of AMERCO that are authorized, issued and outstanding
prior to the Effective Date.
1.75 "EXISTING DEBT SECURITIES" means: (a) the AMERCO
Notes; (b) the BBATS; and (c) the AREC Notes.
8
1.76 "EXISTING SAC HOLDING NOTES" means any and all
promissory notes issued by SAC Holding or any Subsidiary thereof, to the
Debtors, or any Subsidiary thereof, at any time on or before the Effective Date.
1.77 "EXIT FINANCING FACILITY" means a post-Effective Date
working capital revolving credit financing and term facility, in substantially
the form attached hereto as Exhibit A-2, pursuant to the terms of: (a) that
certain Commitment Letter, dated November 5, 2003, between the Debtors, as
borrowers, and Wells Fargo Foothill, Inc., as the same may be amended, modified,
or supplemented from time to time, in substantially the form attached hereto as
Exhibit A-1; and (b) any and all additional documents related thereto filed in
accordance with Article 7.6 of this Plan.
1.78 "FACE AMOUNT" means: (a) when used in reference to a
Disputed or Disallowed Claim, the full stated liquidated amount claimed by the
Claimholder in any proof of claim timely filed with the Bankruptcy Court or
otherwise deemed timely filed by any Final Order of the Bankruptcy Court or
other applicable bankruptcy law; and (b) when used in reference to an Allowed
Claim, the allowed amount of such Claim.
1.79 "FINAL ORDER" means an order or judgment, the
operation or effect of which has not been stayed, reversed or amended and as to
which order or judgment (or any revision, modification or amendment thereof) the
time to appeal or seek review or rehearing has expired and as to which no appeal
or petition for review or rehearing was filed or, if filed, remains pending.
1.80 "HOLDBACK AMOUNT" means the amount equal to twenty
percent (20%) of fees billed to the Debtors in a given month to the extent
retained by the Debtors after the Petition Date as a holdback on payment of
Professional Claims pursuant to the Professional Fee Order. The Holdback Amount
shall not be considered property of the Debtors, the Reorganized Debtors, or the
Estates.
1.81 "IMPAIRED" refers to any Claim or Interest that is
impaired within the meaning of Section 1124 of the Bankruptcy Code.
1.82 "INDEMNIFICATION OBLIGATION" means any obligations of
the Debtors or Subsidiaries to indemnify, reimburse, advance, or provide
contribution to any present or former officer, director or employee, or any
present or former professionals or advisors of the Debtors, pursuant to articles
of incorporation, bylaws, policies of providing employee indemnification,
applicable law, or otherwise as may be in existence immediately prior to the
Petition Date, including, without limitation, Indenture Trustees, accountants,
auditors, financial advisors, underwriters or attorneys, whether pursuant to the
Indentures, charter, by law, contract, underwriting agreement, statute or
otherwise, regardless of whether the indemnification is owed in connection with
pre-petition or post-petition matters.
1.83 "INDENTURES" means the respective indentures pursuant
to which each of the AMERCO Notes and the BBATs were issued.
1.84 "INDENTURE TRUSTEES" means, collectively, the
indenture trustees under the respective Indentures.
1.85 "INDENTURE TRUSTEES CHARGING LIEN" means any lien or
other priority in payment arising prior to the Effective Date to which the
Indenture Trustees are entitled, pursuant to the Indentures, against
distributions to be made to holders of AMERCO Unsecured Claims for payment of
Indenture Trustees Fees.
9
1.86 "INDENTURE TRUSTEE FEES" means the reasonable
compensation, fees, expenses, disbursements and indemnity claims, including
without limitation, attorneys' and agents' fees, expenses and disbursements,
incurred by the Indenture Trustees, whether prior to or after the Petition Date
and whether prior to or after the Effective Date of the Plan.
1.87 "INSURANCE FIRST DAY ORDER" means the Final Order
entered by the Bankruptcy Court approving payment of certain insurance
obligations of AMERCO and RepWest (Docket No. 227).
1.88 "INTERCOMPANY CLAIM" means a Claim by a Debtor, an
Affiliate of a Debtor, or a non-Debtor Affiliate against another Debtor,
Affiliate of a Debtor, or non-Debtor Affiliate.
1.89 "INTEREST" means the legal, equitable, contractual
and other rights of any Person with respect to Existing Common Stock, Preferred
Stock Interests, Other Interests, or any other equity securities of or ownership
interests in the Debtors, but excludes any Subordinated Claims (Preferred) and
Subordinated Claims (Common).
1.90 "INTERESTHOLDER" means a holder of an Interest.
1.91 "JPMORGAN" means JPMorgan Chase Bank.
1.92 "JPMORGAN CHASE CREDIT FACILITY" means that certain
3-year Credit Agreement, dated as of June 28, 2002, by and between AMERCO and
JPMorgan Chase Bank, as administrative agent, Bank of America, N.A., as
syndication agent, and Bank One, NA, as documentation agent, in the aggregate
principal amount of $205,000,000, and all documents executed in connection
therewith.
1.93 "JPMORGAN CLAIMS" means any Claim, whether or not a
Secured Claim, arising under, from or relating to the JPMorgan Chase Credit
Facility.
1.94 "JPMORGAN SUPPORT PARTY OBLIGATION" means the
obligations of AMERCO arising under the PMSR Facility.
1.95 "JPMORGAN SWAP" means that certain ISDA Interest Rate
and Current Exchange Agreement, dated March 5, 1992, by and between AMERCO and
JPMorgan Chase Bank, with an aggregate termination amount of $3,453,808.50.
1.96 "JPMORGAN SYNDICATION TERMS" means those Syndication
Terms described in an exhibit to the Restructuring Agreement (Revolver Lenders).
1.97 "KEY ORDINARY COURSE PROFESSIONAL" means those
certain Persons identified as key ordinary course professionals by the Debtors
pursuant to the Ordinary Course Professional Order.
1.98 "KEY ORDINARY COURSE PROFESSIONAL CLAIM" means an
Administrative Claim of a Key Ordinary Course Professional for compensation for
services rendered or reimbursement of costs, expenses or other charges and
disbursements in an amount less than $50,000 for any month relating to services
rendered or expenses incurred after the Petition Date and prior to and including
the Effective Date.
1.99 "MISCELLANEOUS SECURED CLAIMS" means all Secured
Claims against any of the Debtors, as the case may be, other than the Citibank
Secured Claim, the BMO Secured Claim and the Claims under the JPMorgan Chase
Credit Facility.
10
1.100 "NEW AMERCO NOTES" means the New AMERCO Notes to be
issued by the Reorganized Debtors pursuant to the New AMERCO Notes Indenture in
an original principal amount equal to the total amount of the Allowed Class 7
Claims, minus the amount of the Cash, SAC Holding Senior Notes and New Term Loan
B Notes distributed to the AMERCO Unsecured Claimholders pursuant to Article
5.7(a), (b) and (c) of the Plan.
1.101 "NEW AMERCO NOTES INDENTURE" means the Indenture,
dated as of the Effective Date, pursuant to which the Reorganized Debtors will
issue the New AMERCO Notes, in substantially the form attached hereto as Exhibit
L, as such Indenture is amended or modified from time to time.
1.102 "NEW BMO GUARANTY" means the new BMO Guaranty to be
executed and delivered by Reorganized AMERCO on the Effective Date of the Plan
pursuant to Article 5.4(b) of the Plan, in substantially the form attached
hereto as Exhibit J.
1.103 "NEW CITIBANK GUARANTY" means the new Citibank
Guaranty to be executed and delivered by Reorganized AMERCO on the Effective
Date of the Plan pursuant to Article 5.3(b)(ii) of the Plan, in substantially
the form attached hereto as Exhibit K.
1.104 "NEW DEBT SECURITIES" means: (a) the New Term Loan B
Notes; (b) the New AMERCO Notes; and (c) the SAC Holding Senior Notes.
1.105 "NEW TERM LOAN A NOTES" means the Term Loan A Notes
to be issued pursuant to the Exit Financing Facility in the original principal
amount of $350,000,000.
1.106 "NEW TERM LOAN B NOTES" means the Term Loan B Notes
to be issued by the Reorganized Debtors pursuant to New Term Loan B Notes
Indenture in the original principal amount of $200,000,000.
1.107 "NEW TERM LOAN B NOTES INDENTURE" means the
Indenture, dated as of the Effective Date, pursuant to which the Reorganized
Debtors will issue the New Term Loan B Notes, in substantially the form attached
hereto as Exhibit L, as such Indenture is amended or modified from time to time.
1.108 "NON-DEBTOR SUBSIDIARIES" means the Subsidiaries of
the Debtors that have not commenced cases under Chapter 11 of the Bankruptcy
Code.
1.109 "ORDINARY COURSE PROFESSIONAL ORDER" means the
Bankruptcy Court's Order Pursuant to 11 U.S.C. Sections 105(a), 327(e) and 331
Authorizing Retention of Professionals Utilized by the Debtors in the Ordinary
Course of Business.
1.110 "OTHER INTERESTS" means the preferred share purchase
rights issued by AMERCO pursuant to that certain stock-holder rights plan
adopted by the board of directors of AMERCO in July 1998, with each such right
entitling its holder to purchase from AMERCO one one-hundredth of a share of
Series C Junior Participation Preferred Stock (Series C), no par value per share
of AMERCO, at a price of $132.00 per one one-hundredth of a share of Series C,
subject to adjustment.
1.111 "OTHER PRIORITY CLAIMS" means all Claims entitled to
priority pursuant to Section 507(a) of the Bankruptcy Code other than a Priority
Tax Claim or an Administrative Claim.
11
1.112 "OTHER UNSECURED CLAIMS" means any and all Claims
against the Debtors as of the Petition Date not secured by a charge against an
interest in or lien on property in which a Debtors' Estate has an interest or
that is subject to setoff under Section 553 of the Bankruptcy Code, including
the Claims of RepWest not included in the Insurance First Day Order as of the
Effective Date, but excluding therefrom: (a) Priority Claims; (b) AMERCO
Unsecured Claims; (c) BMO Guaranty Claim; (d) Citibank Guaranty Claim; (e)
Subordinated Claims (Preferred); (f) Subordinated Claims (Common); and (g)
Claims with respect to AMERCO/AREC Guaranty Obligations.
1.113 "OXFORD" means Oxford Life Insurance Company, an
Arizona corporation, and a wholly-owned subsidiary of AMERCO. Oxford is not a
debtor in the Chapter 11 Cases.
1.114 "OXFORD NOTE CLAIMS" means, collectively, all Claims
arising under, from or relating to the financial accommodations made available
to AMERCO by Oxford as evidenced by: (a) that certain $15,000,000 Promissory
Note, dated June 27, 2002, issued by AMERCO to Oxford; (b) that certain
$1,700,000 Promissory Note, dated June 27, 2002, issued by AMERCO to Oxford,
Christian Fidelity Life Insurance Company and North American Insurance Company;
and (c) that certain $800,000 Promissory Note, dated June 27, 2002, issued by
AMERCO to North America Insurance Agency.
1.115 "PERSON" means an individual, corporation,
partnership, joint venture, association, joint stock company, limited liability
company, limited liability partnership, trust, estate, unincorporated
organization, governmental unit (as defined in Section 101(27) of the Bankruptcy
Code) or other entity.
1.116 "PETITION DATE" means: (a) with respect to AMERCO,
June 20, 2003, the date on which it filed its petition for relief in the
Bankruptcy Court; and (b) with respect to AREC, August 13, 2003, the date on
which it filed its petition for relief in the Bankruptcy Court.
1.117 "PLAN" means this joint plan of reorganization for
the resolution of outstanding Claims and Interests in the Chapter 11 Cases, as
herein proposed by the Debtors and SAC Holding, including all Exhibits,
supplements, appendices and schedules hereto, either in their present form or as
the same may be further altered, amended or modified from time to time in
accordance with the Bankruptcy Code and Bankruptcy Rules.
1.118 "PLAN SUPPORT AGREEMENT" means that certain Plan
Support Agreement, dated as of November 12, 2003, and all exhibits and
amendments thereto, by and among the Debtors, the Creditors' Committee and the
other parties that are or may become signatories thereto.
1.119 "PMSR" means Private Mini Storage Realty, L.P., a
Texas-based limited partnership that operates self-storage rental facilities.
1.120 "PMSR AGREEMENT" means that certain PMSR Agreement,
dated as of the Effective Date, among PMSR, Reorganized AMERCO, and JPMorgan
Chase Bank, as Administrative Agent under the PMSR Facility, in substantially
the form attached hereto as Exhibit F.
1.121 "PMSR FACILITY" means that certain Amended and
Restated Credit Agreement, dated as of March 3, 2003, among PMSR, as Borrower,
Storage Realty L.L.C., as General Partner, the Lenders party thereto, and
JPMorgan Chase Bank, as Administrative Agent, relating to financing in the
original amount of $125,000,000 for investment in self-storage operations.
12
1.122 "PMSR SUPPORT AGREEMENT" means that certain Support
Party Agreement, dated as of December 30, 1997, entered into by AMERCO in favor
of JPMorgan Chase Bank, as further evidenced by that certain Non-Exoneration
Agreement, dated as of March 3, 2003, by AMERCO in favor of JPMorgan, as
Administrative Agent, pursuant to which AMERCO assumed responsibility for
fulfilling certain obligations of PMSR under the PMSR Facility, subject to the
limitations set forth therein.
1.123 "PMSR SUPPORT OBLIGATIONS" means AMERCO's obligations
arising under the PMSR Support Agreement.
1.124 "PREFERRED STOCK INTERESTS" means the outstanding
shares of the Series A 8-1/2% Preferred Stock, no par value, of AMERCO as set
forth in the Restated Articles of Incorporation, as amended, together with all
rights arising thereunder, including, without limitation, unpaid dividends.
1.125 "PREPETITION AGENT" means JPMorgan Chase Bank as
administrative agent under the JPMorgan Chase Credit Facility.
1.126 "PREPETITION LENDERS" means the lenders from time to
time party to the JPMorgan Chase Credit Facility.
1.127 "PREPETITION LENDER CLAIMS" means all Claims arising
under, from or pursuant to the JPMorgan Chase Credit Facility.
1.128 "PREPETITION NOTE CLAIMS" means all Claims arising
under, from or pursuant to any of the AMERCO Notes or the Indentures governing
the AMERCO Notes.
1.129 "PRIORITY CLAIMS" means Administrative Claims,
Priority Tax Claims and Other Priority Claims.
1.130 "PRIORITY TAX CLAIM" means a Claim entitled to
priority pursuant to Section 507(a)(8) of the Bankruptcy Code.
1.131 "PROFESSIONAL" means those Persons retained in the
Chapter 11 Cases by orders of the Bankruptcy Court pursuant to Sections 327 and
1103 of the Bankruptcy Code or otherwise; provided, however, that Professional
does not include those Persons retained pursuant to the Ordinary Course
Professional Order.
1.132 "PROFESSIONAL CLAIM" means an Administrative Claim of
a Professional for compensation for services rendered or reimbursement of costs,
expenses or other charges and disbursements incurred relating to services
rendered or expenses incurred after the Petition Date and prior to and including
the Effective Date.
1.133 "PROFESSIONAL FEE BAR DATE" means the deadline by
which all applications for compensation or expense reimbursement, including
Professional Claims, must be filed, which deadline shall be forty-five (45) days
after the Effective Date, unless otherwise ordered by the Bankruptcy Court.
1.134 "PROFESSIONAL FEE ORDER" means the order entered by
the Bankruptcy Court on June 20, 2003, authorizing the interim payment of
Professional Claims subject to the Holdback Amount.
1.135 "PRO RATA" means, at any time, the proportion that
the Face Amount of a Claim in a particular Class or Classes bears to the
aggregate Face Amount of all Claims (including Disputed Claims, but excluding
Disallowed Claims) in such Class or Classes, unless the Plan provides otherwise.
13
1.136 "PWC" means PricewaterhouseCoopers LLP.
1.137 "PWC LITIGATION" means the pending action filed by
AMERCO against PwC in the Maricopa County Superior Court for the State of
Arizona, Case No. CV-2003-011032.
1.138 "RECORD DATE" means the date or dates established by
the Bankruptcy Court by which holders of Claims are determined for purposes of
such holders' right to vote to accept or reject the Plan and to receive
Distributions under the Plan.
1.139 "REINSTATED" or "REINSTATEMENT" means: (a) leaving
unaltered the legal, equitable and contractual rights to which a Claim entitles
the Claimholder so as to leave such Claim Unimpaired in accordance with Section
1124 of the Bankruptcy Code; or (b) notwithstanding any contractual provision or
applicable law that entitles the Claimholder to demand or receive accelerated
payment of such Claim after the occurrence of a default: (i) curing any such
default that occurred before or after the Petition Date, other than a default of
a kind specified in Section 365(b)(2) of the Bankruptcy Code; (ii) reinstating
the maturity of such Claim as such maturity existed before such default; (iii)
compensating the Claimholder for any damages incurred as a result of any
reasonable reliance by such Claimholder on such contractual provision or such
applicable law; and (iv) not otherwise altering the legal, equitable or
contractual rights to which such Claim entitles the Claimholder; provided,
however, that any contractual right that does not pertain to the payment when
due of principal and interest on the obligation on which such Claim is based,
including, but not limited to, financial covenant ratios, negative pledge
covenants, covenants and restrictions on merger or consolidation, and
affirmative covenants regarding corporate existence prohibiting certain
transactions or actions contemplated by this Plan, or conditioning such
transactions or actions on certain factors, shall not be required to be cured or
reinstated in order to accomplish Reinstatement.
1.140 "RELEASED PARTIES" means, collectively: (i) all
officers of each of the Debtors, all members of the boards of directors of each
of the Debtors, and all employees of each of the Debtors, in each case, as of
the date of the commencement of the hearing on the Disclosure Statement; (ii)
the Statutory Committees and all members of the Statutory Committees in their
respective capacities as such; (iii) the DIP Agent in its capacity as such; (iv)
the DIP Lenders in their capacities as such; (v) the Prepetition Lenders in
their capacities as such; (vi) the Prepetition Agent in its capacity as such;
(vii) the holders of AREC Note Claims; (viii) the Indenture Trustees; and (ix)
with respect to each of the above-named Persons, such Person's affiliates,
principals, employees, agents, officers, directors, financial advisors,
attorneys and other professionals, in their capacities as such. Notwithstanding
the foregoing, nothing in this Article 1.140, the Plan or the Confirmation Order
shall affect, release, enjoin or impact the prosecution of the Claims asserted
or to be asserted against the non-Debtor defendants in the Derivative Actions,
the Class Actions or the Securities Actions.
1.141 "REORGANIZED AMERCO" means AMERCO from and after the
Effective Date.
1.142 "REORGANIZED AREC" means AREC from and after the
Effective Date.
1.143 "REORGANIZED DEBTOR" or "REORGANIZED DEBTORS" means,
collectively, Reorganized AMERCO and Reorganized AREC, in each case from and
after the Effective Date.
1.144 "RESTATED BMO MASTER LEASE" means the restated BMO
Master Lease to be executed and delivered by Reorganized AREC and U-Haul on the
Effective Date of the Plan pursuant to Article H of the Plan, in substantially
the form attached hereto as Exhibit I.
14
1.145 "RESTATED CITIBANK MASTER LEASE" means the restated
Citibank Master Lease to be executed and delivered by Reorganized AREC on the
Effective Date of the Plan pursuant to Article 5.3(b)(i) of the Plan, in
substantially the form attached hereto as Exhibit H.
1.146 "RESTRUCTURING AGREEMENT (REVOLVER LENDERS)" means
that certain AMERCO Revolver Lenders Restructuring Agreement, dated as of
September 8, 2003, and any amendments thereto, by and among AMERCO, the
Prepetition Agent, and the Prepetition Lenders, attached hereto as Exhibit c.
1.147 "RESTRUCTURING AGREEMENT (AREC NOTEHOLDERS)" means
that certain Restructuring Agreement, dated as of August 12, 2003, and any
amendments thereto, by and between AREC and the holders of the AREC Notes,
attached hereto as Exhibit B.
1.148 "REPWEST" means Republic Western Insurance Company,
an Arizona corporation, and a wholly-owned subsidiary of AMERCO. RepWest is not
a debtor in the Chapter 11 Cases.
1.149 "RETAINED ACTIONS" means all claims, Causes of
Action, rights of action, suits and proceedings, whether in law or in equity,
whether known or unknown, which any Debtor or any Debtors' Estate may hold
against any Person, including, without limitation: (a) claims and Causes of
Action brought prior to the Effective Date; (b) the PwC Litigation; (c) claims
and Causes of Action against any Persons for failure to pay for products or
services provided or rendered by any of the Debtors; (d) Claims and Causes of
Action relating to strict enforcement of any of the Debtors' intellectual
property rights, including patents, copyrights and trademarks; (e) Claims and
Causes of Action seeking the recovery of any of the Debtors' or the Reorganized
Debtors' accounts receivable other receivables or rights to payment created or
arising in the ordinary course of any of the Debtors or the Reorganized Debtors'
businesses, including, without limitation, claim overpayments and tax refunds;
(f) Avoidance Claims; and (g) Derivative Claims, if any.
1.150 "RETIREE BENEFITS" means any retiree benefits
provided or to be provided by the Debtors or the Reorganized Debtors, as the
case may be, encompassed within the statutory definition set forth in Section
1114(a) of the Bankruptcy Code.
1.151 "SAC HOLDING" means, collectively, SAC Holding
Corporation and SAC Holding II Corporation, each a Nevada corporation. SAC
Holding is not a debtor in the Bankruptcy Cases.
1.152 "SAC HOLDING NOTE DOCUMENTS" means, collectively, the
SAC Holding Notes Indenture, the SAC Holding Senior Notes, the SAC Holding
Participation and Subordination Agreement.
1.153 "SAC HOLDING SENIOR NOTES" means the Senior Notes to
be issued by SAC Holding pursuant to the SAC Holding Senior Notes Indenture in
the original principal amount of $200,000,000.
1.154 "SAC HOLDING SENIOR NOTES INDENTURE" means the
Indenture, dated as of the Effective Date, pursuant to which SAC Holding will
issue the SAC Holding Senior Notes, as such Indenture is amended or modified
from time to time.
1.155 "SAC HOLDING PARTICIPATION AND SUBORDINATION
AGREEMENT" means the SAC Holding Participation and Subordination Agreement,
dated as of the Effective Date, by and among SAC Holding, the Reorganized
Debtors and the Trustee under the SAC Holding Senior Notes Indenture,
15
providing for the subordination of the Existing SAC Holding Notes to payment in
full of the SAC Holding Senior Notes, in substantially the form attached hereto
as Exhibit D.
1.156 "SCHEDULED" means, with respect to any Claim or
Interest, the status, priority, and amount, if any, of such Claim or Interest as
set forth in the Schedules.
1.157 "SCHEDULES" means the schedules of assets and
liabilities and the statements of financial affairs filed in the Chapter 11
Cases by the Debtors, as such schedules or statements have been or may be
further modified, amended or supplemented from time to time in accordance with
Bankruptcy Rule 1009 or orders of the Bankruptcy Court.
1.158 "SECURED CLAIMS" means all Claims secured by a
security interest in or a lien on property in which a Debtor's Estate has an
interest or that is subject to setoff under Section 553 of the Bankruptcy Code,
to the extent of the value, as of the Effective Date or such other date as is
established by the Bankruptcy Court, of such Claimholder's interest in the
applicable Estate's interest in such property or to the extent of the amount
subject to setoff, as applicable, as determined by a Final Order of the
Bankruptcy Court pursuant to Section 506(a) of the Bankruptcy Code or in the
case of setoff, pursuant to Section 553 of the Bankruptcy Code, or as otherwise
agreed upon in writing by the Debtors and the Claimholder.
1.159 "SECURITIES ACT" means the Securities Act of 1933, as
now in effect or hereafter amended.
1.160 "SECURITIES ACTION" means any Cause of Action by a
Person, other than by or on behalf of a Debtor, against any Person other than a
Debtor arising out of or related to a Person's ownership interests of Preferred
Stock Interests and Existing Common Stock Interests, including those alleged in
the Class Actions.
1.161 "STATUTORY COMMITTEES" means, collectively, the
Creditors' Committee and the Equity Committee.
1.162 "SUBORDINATED CLAIMS (COMMON)" means any Claim with
respect to an Existing Common Stock Interest subordinated pursuant to Section
510 of the Bankruptcy Code.
1.163 "SUBORDINATED CLAIMS (PREFERRED)" means any Claim
with respect to a Preferred Stock Interest subordinated pursuant to Section 510
of the Bankruptcy Code.
1.164 "SUBSIDIARY" means an entity of which more than 50%
of the outstanding capital stock entitled to vote for the election of directors
is owned or controlled, directly or indirectly, by the Debtors, by one or more
Subsidiaries of the Debtors, or by a Debtor and one or more of its other
Subsidiaries.
1.165 "SUBSIDIARY INTERESTS" means, collectively, the
issued and outstanding shares of stock of AMERCO's Subsidiaries, including AREC,
directly or indirectly owned by AMERCO as of the Petition Date.
1.166 "TERMINATED SWAPS" means, collectively, the (a) BBAT
Swaps; (b) JPMorgan Swap; and (c) Bank of America Swap.
1.167 "U-HAUL" means U-Haul International, Inc., a Nevada
corporation. U-Haul is not a Debtor in the Chapter 11 Cases.
16
1.168 "UH STORAGE" means UH STORAGE (DE) LIMITED
PARTNERSHIP, a Delaware limited partnership, and the purchaser of the Citicorp
Properties and BMO Properties under the Carey Sale Agreement. UH Storage is not
a Debtor in the Chapter 11 Cases.
1.169 "UNIMPAIRED" refers to any Claim or Interest that is
not Impaired.
1.170 "UNSECURED DEFICIENCY CLAIM" means any Claim by a
Person holding a Secured Claim to the extent the value of such Creditor's
collateral, as determined in accordance with Section 506(a) of the Bankruptcy
Code, is less than the Allowed amount of such Creditor's Claims as of the
Petition Date, after taking into account any elections made pursuant to Section
1111(b) of the Bankruptcy Code.
1.171 "VOTING DEADLINE" means the date established by the
Bankruptcy Court by which holders of Allowed Claims and Interests are determined
for purposes of such Holders' right to submit Ballots.
1.172 "WORKERS' COMPENSATION PROGRAM" means, collectively,
the Debtors' workers' compensation programs in all states in which they operate
pursuant to which the Debtors provide their employees with workers' compensation
coverage for claims arising from or related to their employment with the
Debtors.
C. RULES OF INTERPRETATION
For purposes of this Plan, unless otherwise provided herein:
(a) whenever from the context it is appropriate, each term, whether stated in
the singular or the plural, will include both the singular and the plural; (b)
each pronoun stated in the masculine, feminine or neuter includes the masculine,
feminine and neuter; (c) unless otherwise provided in this Plan, any reference
in this Plan to a contract, instrument, release or other agreement or document
being in a particular form or on particular terms and conditions means that such
document will be substantially in such form or substantially on such terms and
conditions; (d) any reference in this Plan to an existing document or schedule
filed or to be filed means such document or schedule, as it may have been or may
be amended, modified or supplemented pursuant to this Plan; (e) any reference to
an entity as a holder of a Claim or Interest includes that entity's successors
and assigns; (f) all references in this Plan to Sections, Articles and Exhibits
are references to Sections, Articles and Exhibits of or to this Plan; (g) the
words "herein," "hereunder" and "hereto" refer to this Plan in its entirety
rather than to a particular portion of this Plan; (h) captions and headings to
Articles and Sections are inserted for convenience of reference only and are not
intended to be a part of or to affect the interpretation of this Plan; (i)
subject to the provisions of any contract, certificates of incorporation,
by-laws, instrument, release or other agreement or document entered into in
connection with this Plan, the rights and obligations arising under this Plan
shall be governed by, and construed and enforced in accordance with, federal
law, including the Bankruptcy Code and Bankruptcy Rules; and (j) the rules of
construction set forth in Section 102 of the Bankruptcy Code will apply.
This Plan is the product of extensive discussions and
negotiations between and among, inter alia, the Debtors, the Creditors'
Committee, the Prepetition Agent on behalf of the Prepetition Lenders, the
holders of AREC Note Claims, and certain other creditors and constituencies.
Each of the foregoing was represented by counsel who either: (a) participated in
the formulation and documentation of, or (b) was afforded the opportunity to
review and provide comments on, the Plan, Disclosure Statement, and the
documents ancillary thereto. Accordingly, the general rule of contract
construction known as "contra preferentem" shall not apply to the construction
or interpretation of any provision of
17
this Plan, Disclosure Statement, or any contract, instrument, release,
indenture, exhibit, or other agreement or document generated in connection
herewith.
D. COMPUTATION OF TIME
In computing any period of time prescribed or allowed by this
Plan, unless otherwise expressly provided, the provisions of Bankruptcy Rule
9006(a) shall apply.
E. REFERENCES TO MONETARY FIGURES
All references in this Plan to monetary figures shall refer to
United States of America currency, unless otherwise expressly provided.
F. EXHIBITS
All Exhibits are incorporated into and are a part of this Plan
as if set forth in full herein and, to the extent not annexed hereto, such
Exhibits shall be filed with the Bankruptcy Court on or before the Exhibit
Filing Date. After the Exhibit Filing Date, copies of Exhibits can be obtained
upon written request to Squire, Sanders & Dempsey L.L.P., Two Renaissance
Square, 40 North Central Avenue, Suite 2700, Phoenix, Arizona 85004-4498 (Attn:
Craig D. Hansen, Esq., chansen@ssd.com), counsel to the Debtors, or by
downloading such exhibits from the Debtors' website at HTTP:\\WWW.AMERCO.COM. To
the extent any Exhibit is inconsistent with the terms of this Plan, unless
otherwise ordered by the Bankruptcy Court, the non-Exhibit portion of this Plan
shall control.
ARTICLE II
ADMINISTRATIVE CLAIMS, PRIORITY TAX CLAIMS,
AND OTHER UNCLASSIFIED CLAIMS
2.1 ADMINISTRATIVE CLAIMS.
On the Distribution Date occurring after the later of: (a) the
date an Administrative Claim becomes an Allowed Administrative Claim; or (b) the
date an Administrative Claim becomes payable pursuant to any agreement between a
Debtor (or a Reorganized Debtor) and the holder of such Administrative Claim, an
Allowed Administrative Claimholder in the Chapter 11 Cases shall receive, in
full satisfaction, settlement, release, and discharge of, and in exchange for,
such Administrative Claim: (i) Cash equal to the unpaid portion of such Allowed
Administrative Claim; or (ii) such other treatment as to which the Debtors (or
the Reorganized Debtors) and such Claimholder shall have agreed upon in writing;
provided, however, that: (y) Claimholders of Claims arising under the DIP
Facility shall be deemed to have Allowed Claims as of the Effective Date in such
amount as to which the Debtors and such Claimholders shall have agreed upon in
writing or as determined by the Bankruptcy Court, which DIP Facility Claims
shall be paid in accordance with Article 10.1 of this Plan; and (z) Allowed
Administrative Claims with respect to liabilities incurred by the Debtors in the
ordinary course of business during the Chapter 11 Cases, including the Allowed
Administrative Claims of RepWest against the Debtors, shall be paid in the
ordinary course of business in accordance with the terms and conditions of any
agreement or Final Orders of the Bankruptcy Court relating thereto.
18
2.2 PRIORITY TAX CLAIMS.
Commencing on the later of: (a) the Effective Date; (b) the
date a Priority Tax Claim becomes an Allowed Priority Tax Claim; or (c) the date
a Priority Tax Claim first becomes payable pursuant to any agreement between a
Debtor (or a Reorganized Debtor) and the holder of such Priority Tax Claim, at
the sole option of the Debtors (or the Reorganized Debtors after the Effective
Date), such Allowed Priority Tax Claimholder shall be entitled to receive on
account of such Priority Tax Claim, in full satisfaction, settlement, release
and discharge of, and in exchange for, such Priority Tax Claim: (i) equal Cash
payments on the last Business Day of each three-month period following the
Effective Date, during a period not to exceed six years after the assessment of
the tax on which such Claim is based, totaling the aggregate amount of such
Claim plus simple interest on any outstanding balance from the Effective Date
calculated at the interest rate available on ninety (90) day United States
Treasuries on the Effective Date; (ii) such other treatment agreed to by the
Allowed Priority Tax Claimholder and the Debtors (or the Reorganized Debtors),
provided such treatment is on more favorable terms to the Debtors (or the
Reorganized Debtors after the Effective Date) than the treatment set forth in
clause (i) hereof; or (iii) payment in full in Cash.
2.3 WORKERS' COMPENSATION PROGRAMS CLAIMS.
Following the Effective Date of the Plan, the Reorganized
Debtors shall continue the Workers' Compensation Programs in accordance with
applicable state laws. Nothing set forth in this Plan shall be deemed to
discharge, release, or relieve the Debtors or Reorganized Debtors from any
current or future liability with respect to any of the Workers' Compensation
Programs. The Reorganized Debtors shall be responsible for all valid claims for
benefits and liabilities under the Workers' Compensation Programs regardless of
when the applicable injuries were incurred. Any and all obligations under the
Workers' Compensation Programs shall be paid in accordance with the terms and
conditions of Workers' Compensation Programs and in accordance with all
applicable laws.
2.4 RETIREE BENEFITS.
Nothing set forth in this Plan shall be deemed to alter,
modify, terminate or discharge the Debtors or Reorganized Debtors from any
current or future liability with respect to any Retiree Benefits that the
Debtors or Reorganized Debtors are obligated to provide under any plan, fund, or
program (through the purchase of insurance or otherwise) maintained or
established in whole or in part by the Debtors prior to the Petition Date.
2.5 CLAIMS FOR PROFESSIONAL FEES.
All Professional Claims shall be governed by Article 10.2 of
this Plan.
2.6 CLAIMS OF DIP LENDER.
Simultaneously with the closing of the Exit Financing
Facility, all the Debtors' outstanding obligations to any DIP Lender pursuant to
a DIP Financing Order shall be fully and finally satisfied in accordance with
their terms using proceeds derived from, among other things, the Exit Financing
Facility and/or Cash held by the Reorganized Debtors.
19
ARTICLE III
CLASSIFICATION OF CLAIMS AND INTERESTS
Pursuant to Section 1122 of the Bankruptcy Code, set forth
below is a designation of classes of Claims against and Interests in the
Debtors. A Claim or Interest is placed in a particular Class for the purposes of
voting on this Plan and of receiving distributions pursuant to this Plan only to
the extent that such Claim or Interest is an Allowed Claim or an Allowed
Interest in that Class and such Claim or Interest has not been paid, released,
or otherwise settled prior to the Effective Date. In accordance with Section
1123(a)(1) of the Bankruptcy Code, Administrative Claims and Priority Tax Claims
of the kinds specified in Sections 507(a)(1) and 507(a)(8) of the Bankruptcy
Code have not been classified and their treatment is set forth in Article II
above.
3.1 CLASS 1. Class 1 consists of the JPMorgan Claims.
3.2 CLASS 2. Class 2 consists of the Other Priority
Claims.
3.3 CLASS 3. Class 3 consists of the following
subclasses: Class 3(A) Citibank Secured Claim and Class 3(B) Citibank Guaranty
Claim.
3.4 CLASS 4. Class 4 consists of the following
subclasses: Class 4(A) BMO Secured Claim and Class 4(B) BMO Guaranty Claim.
3.5 CLASS 5. Class 5 consists of the Other Unsecured
Claims.
3.6 CLASS 6. Class 6 consists of the AREC Note Claims.
3.7 CLASS 7. Class 7 consists of all AMERCO Unsecured
Claims.
3.8 CLASS 8. Class 8 consists of the Oxford Note Claims.
3.9 CLASS 9. Class 9 consists of separate subclasses of
Miscellaneous Secured Claims.
3.10 CLASS 10. Class 10 consists of the Intercompany
Claims.
3.11 CLASS 11. Class 11 consists of the AMERCO/AREC
Guaranty Obligations.
3.12 CLASS 12. Class 12 consists of the following
subclasses: Class 12(A) Preferred Stock Interests and Class 12(B) Subordinated
Claims (Preferred).
3.13 CLASS 13. Class 13 consists of the following
subclasses: Class 13(A) Existing Common Stock Interests and Class 13(B)
Subordinated Claims (Common).
3.14 CLASS 14. Class 14 consists of Subsidiary Interests.
20
ARTICLE IV
IDENTIFICATION OF CLASSES OF CLAIMS AND
INTERESTS IMPAIRED AND UNIMPAIRED BY THE PLAN
4.1 CLASSES OF CLAIMS AND INTERESTS THAT ARE UNIMPAIRED.
The following Classes are Unimpaired by the Plan:
Class 2: (Other Priority Claims)
Class 5: (Other Unsecured Claims)
Class 8: (Oxford Note Claims)
Class 9: (Miscellaneous Secured Claims)
Class 10: (Intercompany Claims)
Class 11: (AMERCO/AREC Guaranty Obligations)
Class 12: (Preferred Stock Interest and Subordinated
Claims (Preferred)
Class 13: (Existing Common Stock and Other Interests
and Subordinated Claims (Common))
Class 14: (Subsidiary Interests)
4.2 IMPAIRED CLASSES OF CLAIMS.
The following Classes are Impaired by the Plan:
Class 1: (JPMorgan Claims)
Class 3: (Citibank Secured Claim and Citibank
Guaranty Claim)
Class 4: (BMO Secured Claim and BMO Guaranty Claim)
Class 6: (AREC Note Claims)
Class 7: (AMERCO Unsecured Claims)
ARTICLE V
PROVISIONS FOR TREATMENT
OF CLAIMS AND INTERESTS
The treatment of Claims and Interests as provided in this
Article V represents a compromise and full and final settlement, pursuant to
Section 1123(b)(3) of the Bankruptcy Code and Bankruptcy Rule 9019, of the
various Claims and Interests of parties in interest in the Chapter 11 Cases.
5.1 CLASS 1 (JPMORGAN CLAIMS) (IMPAIRED).
Upon the occurrence of the Effective Date, the JPMorgan Claims
are hereby allowed, and shall be treated as Allowed Claims, in the amount set
forth in the Restructuring Agreement (Revolver Lenders), less the Cash payment
in an amount equal to $51,250,000 paid Pro Rata to the holders of the JPMorgan
Claims on or about September 10, 2003. On the Effective Date, the Prepetition
Lenders shall
21
receive, in full satisfaction, settlement, release and discharge of, and in
exchange for, their JPMorgan Claims (including any prepetition setoff claims) a
Pro Rata portion of:
(a) Cash in an amount equal to $71,750,000;
(b) Cash in an amount equal to any and all
accrued but unpaid interest on the principal amount
outstanding payable at the non-default rate of interest under
the JPMorgan Chase Credit Facility;
(c) $48,400,000 in aggregate principal amount of
the New Term Loan A Notes issued pursuant to the Exit
Financing Facility; and
(d) $33,600,000 in aggregate principal amount of
the New Term Loan B Notes issued pursuant to the New Term Loan
B Notes Indenture. In the event of any inconsistency between
the terms of the Plan and the terms of the Restructuring
Agreement (Revolver Lenders), the terms of the Restructuring
Agreement (Revolver Lenders) shall control.
Additionally, on the Effective Date, the Prepetition Agent under the
JPMorgan Chase Credit Facility shall receive all reasonable fees and expenses
provided for under the JPMorgan Chase Credit Facility.
Notwithstanding the foregoing, in the event the Debtors fail to comply
with the JPMorgan Syndication Terms, then the Prepetition Lenders shall receive
an additional $33,600,000 in aggregate principal amount of Term Loan A Notes
issued pursuant to the Exit Financing Facility in lieu of the consideration
described in Article 5.1(d) of this Plan.
5.2 CLASS 2 (OTHER PRIORITY CLAIMS) (UNIMPAIRED).
Upon the occurrence of the Effective Date, each holder of an
Allowed Other Priority Claim shall receive, in full satisfaction, settlement,
release, and discharge of, and in exchange for, such Other Priority Claim: (a)
Cash in an amount equal to the amount of such Allowed Other Priority Claim; or
(b) such other treatment as to which the Debtors (or the Reorganized Debtors)
and such Claimholder shall have agreed upon in writing, provided that such
treatment is not more favorable than the treatment in clause (a) above. The
Debtors' failure to object to an Other Priority Claim in their Chapter 11 Cases
shall be without prejudice to the Reorganized Debtors' right to contest or
otherwise defend against such Claim in the Bankruptcy Court or other appropriate
non-bankruptcy forum (at the option of the Debtors or the Reorganized Debtors)
when and if such Claim is sought to be enforced by the Other Priority
Claimholder.
5.3 CLASS 3 (CITIBANK SECURED CLAIM AND CITIBANK GUARANTY
CLAIM) (IMPAIRED).
Class 3 shall consist of a separate subclass for the Citibank
Secured Claim and the Citibank Guaranty Claim. The alternative treatments set
forth in this Article 5.3 of the Plan shall be in full satisfaction, settlement,
release and discharge of the Citibank Secured Claim and the Citibank Guaranty
Claim.
(a) Class 3(a): Citibank Secured Claim
(Impaired):
(i) CASH - CAREY SALE PROCEEDS. On or
before the Effective Date of the Plan, the holders of
Citibank Secured Claim shall receive an amount of
Cash from the Carey Sale Proceeds equivalent to the
amount of the Allowed
22
Citibank Secured Claim, excluding therefrom, if
applicable, any fine, penalty, interest or cost
arising from or related to a default under the
Citibank Master Lease and the Citibank Guaranty,
provided that: (A) the Carey Sale Agreement shall
have been approved by a Final Order of the Bankruptcy
Court on or before the Effective Date; (B) the Carey
Sale Transaction closes in accordance with the Carey
Sale Agreement, including the payment of the Carey
Sale Proceeds, on or before the Effective Date; and
(C) the holders of Citibank Secured Claim in Class
3(a) and Citibank Guaranty Claim in Class 3(b) shall
have voted to accept the Plan by the statutory
prerequisites for such acceptance set forth in
Section 1126 of the Bankruptcy Code.
(ii) RESTATED CITIBANK MASTER LEASE. In
the event the Carey Sale Transaction does not close
in accordance with the Carey Sale Agreement on or
before the Effective Date of the Plan, and provided
that the holders of Citibank Secured Claim in Class
3(a) and Citibank Guaranty Claim in Class 3(b) shall
have voted to accept the Plan by the statutory
prerequisites for such acceptance set forth in
Section 1126 of the Bankruptcy Code, Reorganized AREC
shall, on the Effective Date of the Plan, execute and
deliver the Restated Citibank Master Lease.
(iii) CONVEYANCE OF CITIBANK PROPERTIES.
In the event the holders of the Citibank Secured
Claim in Class 3(a) and the Citibank Guaranty Claim
in Class 3(b) vote to reject the Plan by the
statutory prerequisites for such rejection set forth
in Section 1126 of the Bankruptcy Code, the Debtors
reserve the right, in their sole discretion, either
to: (A) surrender to the holders of the Citibank
Secured Claim all of their right, title and interest
in and to the Citibank Properties in full and final
satisfaction of all Claims arising under or related
to the Citibank Master Lease, together with Cash in
an amount equivalent to the Unsecured Deficiency
Claim, if any such Claim exists, of the holders of
the Citibank Secured Claim as determined by a Final
Order of the Bankruptcy Court pursuant to the
Citibank Valuation Hearing; (B) provide for the
treatment of the Citibank Secured Claim in accordance
with the alternative treatment set forth in Article
5.3(a)(i) and (a)(ii) of this Plan; or (C) provide
such other treatment of the Citibank Secured Claim
that complies with Section 1129 (b) of the Bankruptcy
Code. If the Bankruptcy Court determines, as part of
the Citibank Valuation Hearing, that the value of the
Citibank Properties exceeds the amount of the Allowed
Citibank Secured Claim, and the Debtors have selected
the alternative treatment set forth in Article
5.3(a)(iii) of this Plan, the holders of the Citibank
Secured Claim shall pay in Cash to the Debtors the
amount of the excess value. Notwithstanding anything
set forth in this Plan, if the holders of the
Citibank Secured Claim vote to reject the Plan and
the Debtors elect to close the Carey Sale
Transaction, the holders of the Citibank Secured
Claim shall receive Cash in an amount equivalent to
the amount of the Allowed Citibank Secured Claim. The
holders of the Citibank Secured Claim shall have the
right to submit a conditional Ballot to accept or
reject the Plan.
(b) Class 3(b): Citibank Guaranty Claim
(Impaired). In the event the Citibank Secured Claim in Class
3(a) receives the alternative treatment in Articles 5.3(a)(i)
and 5.3(a)(iii) of this Plan, the Citibank Guaranty Claim, to
the extent such Claim is an Allowed Claim, shall be deemed
satisfied in full. In the event the Citibank Secured Claim in
Class 3(a) receives the alternative treatment in Article
5.3(a)(ii) of this
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Plan, the holder of the Citibank Guaranty Claim shall receive
in full satisfaction, settlement, release and discharge of the
Citibank Guaranty Claim, to the extent such Claim is an
Allowed Claim, the New Citibank Guaranty, which shall be
executed and delivered by Reorganized AMERCO on the Effective
Date.
5.4 CLASS 4 (BMO SECURED CLAIM AND BMO GUARANTY CLAIM)
(IMPAIRED).
Class 4 shall consist of a separate subclass for the BMO
Secured Claim and the BMO Guaranty Claim. The alternative treatments set froth
in this Article 5.4 of this Plan, shall be in full satisfaction, settlement,
release, and discharge of the BMO Secured Claim and the BMO Guaranty Claim.
(a) Class 4(a): BMO Secured Claim (Impaired).
(i) CASH - CAREY SALE PROCEEDS. On or
before the Effective Date of the Plan, the holders of
BMO Secured Claim shall receive an amount of Cash
from the Carey Sale Proceeds equivalent to the amount
of the Allowed BMO Secured Claim, excluding
therefrom, if applicable, any fine, penalty, interest
or cost arising from or related to a default under
the BMO Master Lease or the BMO Guaranty, provided
that: (A) the Carey Sale Agreement shall have been
approved by a Final Order of the Bankruptcy Court on
or before the Effective Date; (B) the Carey Sale
Transaction closes in accordance with the Carey Sale
Agreement, including the payment of the Carey Sale
Proceeds, on or before of the Effective Date; and (C)
the BMO Secured Claim in Class 4(a) and the BMO
Guaranty Claim in Class 4(b) shall have voted to
accept the Plan by the statutory prerequisites for
such rejection pursuant to Section 1126 of the
Bankruptcy Code.
(ii) RESTATED BMO MASTER LEASE. In the
event the Carey Sale Transaction does not close in
accordance with the Carey Sale Agreement on or before
the Effective Date of the Plan, and provided that the
holders of the BMO Secured Claim in Class 4(a) and
the BMO Guaranty Claim in Class 4(b) shall have voted
to accept the Plan by the statutory prerequisites for
such acceptance pursuant to Section 1126 of the
Bankruptcy Code, Reorganized AREC and U-Haul shall,
on the Effective Date, execute and deliver to the
holders of the BMO Secured Claim the Restated BMO
Master Lease.
(iii) CONVEYANCE OF BMO PROPERTIES. In
the event the holders of BMO Secured Claim in Class
4(a) and the BMO Guaranty Claim in Class 4(b) vote to
reject the Plan by the statutory prerequisites for
such rejection set forth in Section 1126 of the
Bankruptcy Code, the Debtors reserve the right, in
their sole discretion, either to: (A) surrender and
cause U-Haul to surrender to the holders of the BMO
Secured Claim all of their right, title and interest
in and to the BMO Properties in full and final
satisfaction of all Claims arising under or related
to the Master Lease, together with Cash in an amount
equivalent to the Unsecured Deficiency Claim, if any
such Claim exists, of the holders of BMO Secured
Claim as determined by a Final Order of the
Bankruptcy Court pursuant to the BMO Valuation
Hearing; (B) to treat the BMO Secured Claim in
accordance with the alternative treatment set forth
in Article 5.4 (a)(i) and (a)(ii) of this Plan; or
(C) provide such other treatment that complies with
the provisions of Section 1129(b) of the Bankruptcy
Code. If the Bankruptcy Court determines, as part of
the BMO Valuation Hearing, that the value of the BMO
Properties exceeds the amount of the Allowed BMO
Secured Claim, and the Debtors have selected the
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alternative treatment set forth in Article
5.4(a)(iii) of this Plan, the holders of the BMO
Secured Claim shall pay in Cash to the Debtors the
amount of the excess value. Notwithstanding anything
set forth in this Plan, if the holders of the BMO
Secured Claim vote to reject the Plan and the Debtors
elect to close the Carey Sale Transaction, the
holders of the BMO Secured Claim shall receive Cash
in an amount equivalent to the amount of the Allowed
BMO Secured Claim. The holders of the BMO Secured
Claim shall have the right to submit a conditional
Ballot to accept or reject the Plan.
(b) Class 4(b): BMO Guaranty Claim (Impaired).
In the event the BMO Secured Claim in Class 4(a) receives the
alternative treatments in Article 5.4(a)(i) and (a)(iii) of
this Plan, the BMO Guaranty Claim, to the extent such Claim is
an Allowed Claim, shall be deemed satisfied in full. In the
event the BMO Secured Claim in Class 4(a) receives the
alternative treatment in Article 5.4(a)(ii) of this Plan, the
holders of BMO Guaranty Claim shall receive in full
satisfaction, settlement, release and discharge of the BMO
Guaranty Claim, to the extent such Claim is an Allowed Claim,
the New BMO Guaranty, which shall be executed and delivered by
Reorganized AMERCO on the Effective Date.
5.5 CLASS 5 (OTHER UNSECURED CLAIMS) (UNIMPAIRED).
Each holder of an Allowed Other Unsecured Claim shall receive
the payment of Cash equal to the amount of such holders' Allowed Class 5 Other
Unsecured Claim upon the later to occur of: (i) the Distribution Date; (ii) the
date upon which such Allowed Other Unsecured Claim would be paid in the ordinary
course of the Debtors' or Reorganized Debtors' business; or (iii) such other
date as the holder of the Allowed Class 5 Other Unsecured Claim shall have
agreed.
5.6 CLASS 6 (AREC NOTE CLAIMS) (IMPAIRED).
Upon the occurrence of the Effective Date, the AREC Note
Claims are hereby Allowed in the amount set forth in the Restructuring Agreement
(AREC Noteholders). On the Effective Date, the AREC Note Claimholders shall
receive, in full satisfaction, settlement, release, and discharge of, and in
exchange for, their AREC Note Claims, a Pro Rata portion of:
(a) Cash in the amount of $65,000,000;
(b) Cash in an amount equal to the sum of: (i)
any and all accrued but unpaid interest on the AREC Notes from
October 15, 2002 up to but not including the AREC Petition
Date, payable at the default rate of interest under the AREC
Notes; (ii) any and all accrued and unpaid interest under the
AREC Notes from the AREC Petition Date up to but not including
the Effective Date, payable at the non-default rate of
interest under the AREC Notes; and (iii) any reasonable unpaid
fees and expenses provided for under the AREC Notes, including
reasonable professional fees;
(c) $18,600,000 in aggregate principal amount of
the New Term Loan A Notes issued pursuant to the Exit
Financing Facility; and
(d) $16,400,000 in aggregate principal amount of
the New Term Loan B Notes issued pursuant to the New Term Loan
B Notes Indenture.
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Notwithstanding the foregoing, in the event the Debtors fail to comply
with the AREC Syndication Terms, then the holders of the AREC Note Claims shall
receive a Pro Rata portion of $16,400,000 in aggregate principal amount of the
New Term Loan A Notes in lieu of the consideration described in Article 5.6(d)
above. In the event of any inconsistency between the terms of the Plan and the
terms of the Restructuring Agreement (AREC Noteholders), the Restructuring
Agreement (AREC Noteholders) shall govern and control.
5.7 CLASS 7 (AMERCO UNSECURED CLAIMS) (IMPAIRED).
Upon the occurrence of the Effective Date, each holder of an
Allowed AMERCO Unsecured Claim shall receive, in full satisfaction, settlement,
release, and discharge of, and in exchange for, such AMERCO Unsecured Claims
such holder's Pro Rata portion of the following:
(a) Cash in the amount of $ 191,000,000,
provided, however, that the amount of Cash shall be increased
by the same amount, if any, by which the principal amount of
New Term Loan B Notes distributed to the AMERCO Unsecured
Claimholders is less than $200,000,000, but in no event shall
the amount of Cash exceed an amount equivalent to thirty-five
percent (35%) of the aggregate amount of Allowed Class 7
AMERCO Unsecured Claims. Notwithstanding anything set forth in
this Plan to the contrary, the Cash distributed to the holders
of Allowed Class 7 AMERCO Unsecured Claims pursuant to Article
5.7(a) of this Plan shall be decreased, only to the extent
required, to enable the Reorganized Debtors to have as of the
Effective Date, minimum availability under the Exit Financing
Facility of $80,000,000.
(b) The SAC Holding Senior Notes in the original
principal amount of $200,000,000.
(c) New Term Loan B Notes in the principal
amount of $200,000,000, provided, however, that the amount of
the New Term Loan B Notes distributed to the AMERCO Unsecured
Claimholders shall be decreased by the sum of: (i) the New
Term Loan B Notes distributed to the AREC Note Claimholders
and the Pre-Petition Lenders as a result of the satisfaction
by the Debtors of the JPMorgan Syndication Terms and the AREC
Syndication Terms as provided in Articles 5.1 and 5.6 of this
Plan; and (ii) the amount of New Term Loan B Notes syndicated
by the Debtors to unrelated third-party market participants.
(d) The New AMERCO Notes.
The treatment of allowed Class 7 AMERCO Unsecured Claims,
including the documentation evidencing the New Debt Securities, shall be
consistent with the terms of the Plan Support Agreement.
5.8 CLASS 8 (OXFORD NOTE CLAIMS) (UNIMPAIRED).
On the Effective Date, the Allowed Oxford Note Claims shall be
paid in Cash in full.
5.9 CLASS 9 (MISCELLANEOUS SECURED CLAIMS) (UNIMPAIRED).
On the Effective Date, the legal, equitable and contractual
rights of holders of an Allowed Class 9 Claim shall be Reinstated. The Debtors'
failure to object to any such Class 9 Claims in the Chapter 11 Cases shall be
without prejudice to the Reorganized Debtors' right to contest or otherwise
defend against such Claims in the appropriate forum when and if such Claim is
sought to be enforced by
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the Miscellaneous Secured Claimholder. Notwithstanding Section 1141(c) or any
other provision of the Bankruptcy Code, all pre-petition liens on property of
any Debtor held by or on behalf of the Miscellaneous Secured Claimholder with
respect to such Claims shall survive the Effective Date and continue in
accordance with the contractual terms of the underlying agreements with such
Claimholders until, as to each Claimholder, the Allowed Claims of such
Miscellaneous Secured Claimholder are paid in full.
5.10 CLASS 10 (INTERCOMPANY CLAIMS) (UNIMPAIRED).
This Plan shall not alter, impair or discharge any of the
Allowed Intercompany Claims.
5.11 CLASS 11 (AMERCO/AREC GUARANTY OBLIGATIONS
(UNIMPAIRED).
On the Effective Date, and unless otherwise specifically
provided for in this Plan, the AMERCO/AREC Guaranty Obligations shall be deemed
Reinstated, and any non-monetary default in the primary obligations underlying
the AMERCO/AREC Guaranty Obligations arising out of or related to the
commencement by the Debtors of the Chapter 11 Cases, shall be deemed Cured.
Article 11.6 of the Plan shall not apply to the holders of AMERCO/AREC Guaranty
Obligations.
5.12 CLASS 12 (PREFERRED STOCK INTERESTS AND SUBORDINATED
CLAIMS) (UNIMPAIRED).
The subclasses of Class 12 shall receive the following
treatment under the Plan.
(a) Class 12(a): Preferred Stock Interests
(Unimpaired). The Plan shall not alter or otherwise impair any
of the Allowed Preferred Stock Interests.
(b) Class 12(b): Subordinated Claims (Preferred)
(Unimpaired). Pursuant to Section 510 of the Bankruptcy Code
and this Plan, Subordinated Claims (Preferred) shall be
subordinated to the Allowed Claims of Creditors in Classes 1
through 11 under this Plan, but shall be pari passu with
Allowed Preferred Stock Interests in Class 12(a) under this
Plan. To the extent a Subordinated Claim (Preferred) becomes
an Allowed Claim, either by agreement between the Reorganized
Debtors and the holder of such Subordinated Claim (Preferred),
or by Final Order of the Bankruptcy Court or other court of
competent jurisdiction, such Allowed Subordinated Claim
(Preferred) shall be satisfied in Cash in full by the
Reorganized Debtors or on such other terms as to which the
Reorganized Debtors and the holder of an Allowed Subordinated
Claim (Preferred) shall have agreed to in writing.
5.13 CLASS 13 (EXISTING COMMON STOCK, OTHER INTERESTS AND
SUBORDINATED CLAIMS) (UNIMPAIRED).
The subclasses of Class 13 shall receive the following
treatment under the Plan:
(a) Class 13(a): Common stock and Other
Interests (Unimpaired). The Plan shall not alter or otherwise
impair Allowed Existing Common Stock and Other Interests.
(b) Class 13(b): Subordinated Claims (Common)
(Unimpaired). Pursuant to Section 510 of the Bankruptcy Code
and this Plan, Subordinated Claims (Common) shall be
subordinated to the Allowed Claims in Classes 1 through 11 and
Allowed Preferred Stock Interests and Allowed Subordinated
Claims (Preferred) in Class 12 of this Plan, but
27
shall be pari passu with Allowed Common Stock Interests in
Class 13(a) under this Plan. To the extent a Subordinated
Claim (Common) becomes an Allowed Claim, either by agreement
between the Reorganized Debtors and the holder of such
Subordinated Claims (Common), or by Final Order of the
Bankruptcy Court or other court of competent jurisdiction,
such Allowed Subordinated Claim (Common) shall be satisfied in
Cash in full by the Reorganized Debtors or on such other terms
as to which the Reorganized Debtors and the holder of an
Allowed Subordinated Claim (Common) shall have agreed to in
writing.
5.14 CLASS 14 (SUBSIDIARY INTERESTS).
This Plan shall not alter or otherwise impair any of the
Subsidiary Interests
ARTICLE VI
ACCEPTANCE OR REJECTION OF THE PLAN;
EFFECT OF REJECTION BY ONE OR MORE
IMPAIRED CLASSES OF CLAIMS OR INTERESTS
6.1 IMPAIRED CLASSES OF CLAIMS ENTITLED TO VOTE.
Except as otherwise provided in order(s) of the Bankruptcy
Court pertaining to solicitation of votes on this Plan and Article 6.2 and
Article 6.4 of this Plan, Claimholders in each Impaired Class are entitled to
vote in their respective classes as a class to accept or reject this Plan.
6.2 CLASSES DEEMED TO ACCEPT THE PLAN.
Classes 2, 5, 8, 9, 10, 11, 12, 13 and 14 are Unimpaired by
this Plan. Pursuant to Section 1126(f) of the Bankruptcy Code, such Classes are
conclusively presumed to have accepted this Plan, and the votes of Claimholders
and Interestholders in such Classes therefore will not be solicited.
6.3 ACCEPTANCE BY IMPAIRED CLASSES.
Classes 1, 3,4, 6, and 7 are Impaired under this Plan.
Pursuant to Section 1126(c) of the Bankruptcy Code, and except as provided in
Section 1126(e) of the Bankruptcy Code, an Impaired Class of Claims has accepted
the Plan if the Plan is accepted by the holders of at least two-thirds (2/3) in
dollar amount and more than one-half (1/2) in number of the Allowed Claims of
such Class that have timely and properly voted to accept or reject the Plan.
6.4 CLASSES DEEMED TO REJECT THE PLAN.
Pursuant to Section 1126(g) of the Bankruptcy Code, no Classes
of Claims or Interests are conclusively presumed to have rejected the Plan.
6.5 CONFIRMATION PURSUANT TO SECTION 1129(b) OF THE
BANKRUPTCY CODE.
If any impaired Class of Claims entitled to vote should not
accept this Plan by the requisite statutory majorities provided in Section
1126(c) of the Bankruptcy Code, the Debtors reserve the right to request that
the Bankruptcy Court confirm this Plan under Section 1129(b) of the Bankruptcy
Code.
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ARTICLE VII
MEANS FOR IMPLEMENTATION OF THE PLAN
7.1 CONTINUED CORPORATE EXISTENCE
(a) The Debtors
From and after the Effective Date of the Plan, each of the Debtors will
continue to exist as a separate corporate entity, with all the powers of a
corporation under applicable law in the jurisdiction in which each applicable
Debtor is incorporated or otherwise formed and pursuant to its articles of
incorporation and bylaws or other organizational documents in effect prior to
the Effective Date, except to the extent such certificate of incorporation and
bylaws or other organizational documents are amended by this Plan, without
prejudice to any right to terminate such existence (whether by merger or
otherwise) under applicable law after the Effective Date.
(b) Amended and Restated Articles of
Incorporation
The certificates or articles of incorporation of each Debtor shall be
amended as necessary to satisfy the provisions of the Plan and the Bankruptcy
Code, including a provision prohibiting the issuance of non-voting equity
securities, but only to the extent required by Section 1123(a)(b) of the
Bankruptcy Code. The Amended and Restated Articles of Incorporation for each
Debtor shall be in substantially the form of Exhibit O and Exhibit P attached to
this Plan.
(c) Non-Debtors
There are certain Subsidiaries of the Debtors that are not Debtors in
the Chapter 11 Cases. The continued existence, operation and ownership of such
Non-Debtor Subsidiaries is a material component of the Debtors' businesses, and,
as set forth in Article 11.1 of this Plan, all of the Debtors' equity interests
and other property interests in such Non-Debtor Subsidiaries shall revest in the
applicable Reorganized Debtor or its successor on the Effective Date.
7.2 DIRECTORS AND OFFICERS OF AMERCO
(a) Officers
The existing senior officers of the Debtors in office on the Effective
Date shall serve in their current capacities after the Effective Date, subject
to the authority of the board of directors of the Reorganized Debtors.
(b) Directors of AMERCO
The current members of the board of directors of AMERCO on the
Effective Date shall continue to serve out their current term after the
Effective Date, subject to the authority of the shareholders of AMERCO; provided
that the board of directors, collectively, including any required committee
thereof, shall comply with any other qualification, experience, and independence
requirements under applicable law, including the Sarbanes-Oxley Act of 2002 and
the rules then in effect of the stock exchange or quotation system (including
the benefit of any transition periods available under applicable law) on which
the Existing Common Stock or Series A 8-1/2% Preferred Stock of AMERCO is listed
or is anticipated to be listed, when such Existing Common Stock or Series A
8-1/2% Preferred Stock is listed.
29
(c) Directors and Officers of AREC and
Non-Debtor Subsidiaries
The existing directors and officers of AREC and Non-Debtor Subsidiaries
shall continue to serve in their current capacities after the Effective Date,
provided, however that AMERCO reserves the right to identify new officers and
members of the board of directors of each of AREC and the Non-Debtor
Subsidiaries at any time thereafter.
7.3 LISTING ON SECURITIES EXCHANGE OR QUOTATION SYSTEM
AMERCO will use its commercially reasonable best efforts to
seek the continued listing, as promptly as practicable after the Effective Date,
of the shares of Existing Common Stock and the Series A 8-1/2% Preferred Stock
of AMERCO on a national securities exchange or for quotation on a national
automated interdealer quotation system but will have no liability if it is
unable to do so.
7.4 SAC HOLDING PARTICIPATION
On the Effective Date, SAC Holding will execute and deliver
the SAC Holding Note Documents. The SAC Holding Note Documents shall be duly and
validly authorized, executed and delivered, and shall constitute valid and
binding obligations of SAC Holding, enforceable in accordance with their terms.
7.5 CANCELLATION OF EXISTING DEBT SECURITIES AND ISSUANCE
OF NEW DEBT SECURITIES
(a) CANCELLATION OF EXISTING DEBT SECURITIES. On
the Effective Date, except as otherwise specifically provided
for herein, (a) the Existing Debt Securities and any other
note, bond, indenture, or other instrument or document
evidencing or creating any indebtedness or obligation of the
Debtors, except such notes or other instruments evidencing
indebtedness or obligations of the Debtors that are Reinstated
under this Plan, will be cancelled, and (b) the obligations
of, and Claims against the Debtors under, relating, or
pertaining to any agreements, indentures, or similar documents
governing the Existing Debt Securities and any other note,
bond, indenture, or other instrument or document evidencing or
creating any indebtedness or obligation of the Debtors, except
such notes or other instruments evidencing indebtedness or
obligations of the Debtors that are Reinstated under this
Plan, as the case may be, will be released and discharged;
provided, however, that any agreement that governs the rights
of the Claimholder and that is administered by an Indenture
Trustee, an agent, or a servicer (each hereinafter referred to
as a "Servicer") will continue in effect solely for purposes
of (i) allowing such Servicer to make the distributions to be
made on account of such Claims under this Plan as provided in
Article V of this Plan and to perform such other necessary
administrative functions with respect thereto, and (ii)
allowing the Servicer, including Indenture Trustees, to assert
their Indenture Trustees Charging Liens against such
distributions for payment of the Indenture Trustee Fees, to
the extent that all or a portion of such fees are not paid
pursuant to Article 9.6 of this Plan, which will effectively
reduce the distributions made to the Noteholders pursuant to
the Plan, and allowing the Indenture Trustees to assert their
indemnification rights under the Indentures against the
Reorganized Debtors for all liabilities, losses, damages,
claims, costs and expenses arising our of or due to their
actions or omissions, including but not limited to attorneys'
fees, except for their gross negligence or willful misconduct.
(b) ISSUANCE OF NEW DEBT SECURITIES. For
purposes of this Plan and Section 1145 of the Bankruptcy Code,
SAC Holding shall be an Affiliate of the Debtors. On the
30
Effective Date, SAC Holding will be deemed to have issued the
SAC Holding Senior Notes, the Reorganized Debtors will be
deemed to have issued the remainder of the New Debt Securities
and the Reorganized Debtors will be deemed to have issued the
New Term Loan A Notes, each as set forth in Article V of this
Plan. The issuance of the New Debt Securities and the
distribution thereof as described above will be in compliance
with applicable registration requirements or exempt from
registration under applicable securities laws pursuant to
Section 1145(a) of the Bankruptcy Code or Section 4(2) of the
Securities Act.
7.6 EMERGENCE DATE FINANCING
On the Effective Date, the Reorganized Debtors shall enter
into the Exit Financing Facility in order to obtain the funds necessary to repay
the DIP Facility Claims, make other payments required to be made on the
Effective Date, and conduct their post reorganization operations. The
Reorganized Debtors may enter into all documents necessary and appropriate in
connection with the Exit Financing Facility. The commitment letter with respect
to such Facility, and principal documents with respect thereto, shall be filed
by the Debtors with the Bankruptcy Court no later than the Exhibit Filing Date
and will be deemed attached hereto as Exhibit A-1 and Exhibit A-2. In the
Confirmation Order, the Bankruptcy Court shall approve the terms of the Exit
Financing Facility in substantially the form filed with the Bankruptcy Court
(and with such changes as to which the applicable Debtors and respective agents
and lenders parties thereto may agree) and authorize the applicable Reorganized
Debtors to execute the same together with such other documents as the applicable
Reorganized Debtors and the applicable lenders may reasonably require in order
to effectuate the treatment afforded to such parties under the Exit Financing
Facility.
7.7 PRESERVATION OF CAUSES OF ACTION
In accordance with Section 1123(b)(3) of the Bankruptcy Code,
the Reorganized Debtors will retain and may (but are not required to) enforce
all Retained Actions. The Debtors or the Reorganized Debtors, in their sole and
absolute discretion, will determine whether to bring, settle, release,
compromise, or enforce such Retained Actions (or decline to do any of the
foregoing), and will not be required to seek further approval of the Bankruptcy
Court for such action. The Reorganized Debtors may pursue such litigation claims
in accordance with the best interests of the Reorganized Debtors or any
successors holding such rights of action.
7.8 EXCLUSIVITY PERIOD
The Debtors will retain the exclusive right to amend or modify
this Plan, and to solicit acceptances of any amendments to or modifications of
this Plan, through and until the Effective Date.
7.9 CORPORATE ACTION
Each of the matters provided for under this Plan involving the
corporate structure of any Debtor or Reorganized Debtor or corporate action to
be taken by or required of any Debtor or Reorganized Debtor, including, without
limitation, the execution by the Reorganized Debtors of the Amended and Restated
Articles of Incorporation, shall, as of the Effective Date, be deemed to have
occurred and be effective as provided herein, and shall be authorized, approved
and, to the extent taken prior to the Effective Date, ratified in all respects
without any requirement of further action by stockholders, creditors, or
directors of any of the Debtors or the Reorganized Debtors.
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7.10 EFFECTUATING DOCUMENTS; FURTHER TRANSACTIONS
Each of the Chief Executive Officer and President, Chief
Financial Officer, and Senior Vice President and General Counsel of the Debtors,
or their respective designees, will be authorized to execute, deliver, file, or
record such contracts, instruments, releases, indentures, and other agreements
or documents, and take such actions as may be necessary or appropriate to
effectuate and further evidence the terms and conditions of this Plan or to
otherwise comply with applicable law. The secretary or assistant secretary of
the Debtors will be authorized to certify or attest to any of the foregoing
actions.
7.11 EXEMPTION FROM CERTAIN TRANSFER TAXES AND RECORDING
FEES
(a) EXEMPTION. Pursuant to Section 1146(c) of
the Bankruptcy Code, any transfers from a Debtor to a
Reorganized Debtor or to any other Person or entity pursuant
to this Plan, any agreement regarding the transfer of title to
or ownership of any of the Debtors' real or personal property,
and any recordation of mortgage liens, deeds of trust or
grants of security interest necessary and appropriate to
implement the Exit Financing Facility, the New Term Loan B
Notes and the New AMERCO Notes, will not be subject to any
document recording tax, stamp tax, conveyance fee, intangibles
or similar tax, mortgage tax, real estate transfer tax,
mortgage recording tax, Uniform Commercial Code filing or
recording fee, or other similar tax or governmental
assessment, and the Confirmation Order will direct the
appropriate state or local governmental officials or agents to
forego the collection of any such tax or governmental
assessment and to accept for filing and recordation any of the
foregoing instruments or other documents without the payment
of any such tax or governmental assessment.
(b) SUBSEQUENT ISSUANCES. All subsequent
issuances, transfers or exchanges of securities, or the making
or delivery of any instrument of transfer by Debtors on the
Reorganized Debtors, as applicable, in the Chapter 11 Cases,
whether in connection with a sale, transfer, or the making,
delivery or recording of any deed or other instrument or
transfer shall be deemed in furtherance of this Plan.
ARTICLE VIII
EXECUTORY CONTRACTS AND UNEXPIRED LEASES
8.1 EXECUTORY CONTRACTS.
All executory contracts and unexpired leases of the Debtors
shall be deemed assumed by the applicable Reorganized Debtor, as of the
Effective Date, except for any executory contract or unexpired lease: (i) that
has been rejected pursuant to an order of the Bankruptcy Court entered prior to
the Effective Date; or (ii) as to which a motion for approval of the rejection
of such executory contract or unexpired lease, if applicable, has been filed
with the Bankruptcy Court prior to the Confirmation Date.
8.2 APPROVAL OF ASSUMPTION OR REJECTION.
Entry of the Confirmation Order shall constitute: (i) the
approval, pursuant to Section 365(a) of the Bankruptcy Code, of the assumption
of the executory contracts and unexpired leases assumed pursuant to the Plan or
otherwise during the Chapter 11 Cases; and (ii) the approval, pursuant to
Section 365(a) of the Bankruptcy Code, of the rejection of the executory
contracts and unexpired leases rejected pursuant to the Plan or otherwise during
the Chapter 11 Cases.
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8.3 CURE OF DEFAULTS.
On the Effective Date or as soon thereafter as is practicable,
the Reorganized Debtors shall Cure any defaults under any executory contract or
unexpired lease assumed pursuant to this Plan in accordance with Section
365(b)(1) of the Bankruptcy Code.
8.4 BAR DATE.
All proofs of Claim with respect to Claims arising from the
rejection of any executory contract or unexpired lease shall be filed with the
Bankruptcy Court no later than forty-five (45) days after the Effective Date.
Any such Claim not so filed by that date shall be forever barred.
ARTICLE IX
PROVISIONS GOVERNING DISTRIBUTIONS
9.1 RECORD DATE.
On the Record Date, the various transfer registers for each
class of Claims shall be deemed closed, and there shall be no further changes in
the record holders of any Claims. The Debtors, the Reorganized Debtors and
Servicers shall have no obligation to recognize any transfer of Claims accruing
on or after the Record Date.
9.2 TIME OF DISTRIBUTIONS.
Except as otherwise provided for herein or ordered by the
Bankruptcy Court, distributions under this Plan shall commence on the Effective
Date or as soon thereafter as practicable.
9.3 NO INTEREST ON CLAIMS OR INTERESTS.
Unless otherwise specifically provided for in this Plan, the
Confirmation Order, the DIP Credit Agreement, a post-petition agreement in
writing between the Debtors and a Claimholder, or as otherwise ordered by the
Bankruptcy Court, post-petition interest shall not accrue or be paid on Claims,
and no Claimholder shall be entitled to interest accruing on or after the
Petition Date on any Claim. Additionally, and without limiting the foregoing,
interest shall not accrue or be paid on any Disputed Claim in respect of the
period from the Effective Date to the date a final distribution is made when and
if such Disputed Claim or Disputed Interest becomes an Allowed Claim or Allowed
Interest.
9.4 REORGANIZED DEBTORS AS DISBURSING AGENT.
The Reorganized Debtors shall make all distributions required
under this Plan, except with respect to a holder of a Claim whose distribution
is governed by an agreement and is administered by a Servicer, which
distributions shall be deposited with the appropriate Servicer, who shall
deliver such distributions to the holders of Claims in accordance with the
provisions of this Plan and the terms of the governing agreement, so long as
such holders have surrendered their securities in accordance with Article 9.5 of
this Plan; provided, however, that if any such Servicer is unable to make such
distributions, the Reorganized Debtor with the cooperation of such Servicer,
shall make such distributions. Neither the Reorganized Debtors nor the Servicers
shall be required to give any bond or surety or other security for the
performance of their duties unless otherwise ordered by the Bankruptcy Court
and, to the extent the Bankruptcy Court so orders, all costs and expenses of
procuring such bond or surety shall be borne by the Reorganized Debtors.
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9.5 SURRENDER OF SECURITIES OR INSTRUMENTS.
Except to the extent evidenced by electronic entry, on or
before the Distribution Date, or as soon as practicable thereafter, each holder
of an instrument evidencing a Claim arising under, from or with respect to an
Existing Debt Security (a "Certificate"), shall surrender such Certificate to
the Reorganized Debtor, or, with respect to indebtedness that is governed by an
agreement and administered by a Servicer, the respective Servicer, and such
Certificate shall be cancelled solely with respect to the Debtors and such
cancellation shall not alter the obligations or rights of any non-Debtor third
parties vis-a-vis one another to such instruments; provided, however, that this
Article 9.5 shall not apply to (i) any Claims Reinstated pursuant to the terms
of this Plan, or (ii) the parties to the PMSR Agreement, in such capacity. No
distribution of property hereunder shall be made to or on behalf of any such
holder unless and until such Certificate is received by the Reorganized Debtors
or the respective Servicer or the unavailability of such Certificate is
reasonably established to the satisfaction of the Reorganized Debtors or the
respective Servicer. Any holder who fails to surrender or cause to be
surrendered such Certificate, or fails to execute and deliver an affidavit of
loss and indemnity reasonably satisfactory to the Reorganized Debtors or the
respective Servicer prior to the third anniversary of the Effective Date, shall
be deemed to have forfeited all rights and Claims in respect of such Certificate
and shall not participate in any distribution hereunder, and all property in
respect of such forfeited distribution, including any dividends or interest
attributable thereto, shall revert to the Reorganized Debtors notwithstanding
any federal or state escheat laws to the contrary. Notwithstanding the
foregoing, holders of Interests shall not be required to surrender Certificates
evidencing an equity ownership in the Debtors.
9.6 SERVICES OF INDENTURE TRUSTEES, AGENTS AND SERVICERS.
The services, with respect to implementation of the
distributions contemplated by this Plan, of Servicers, including Indenture
Trustees under the relevant agreements that govern the rights of Claimholders
shall be as set forth elsewhere in this Plan. Notwithstanding the foregoing, the
Reorganized Debtors shall reimburse (i) any Servicers for reasonable and
necessary services performed by it (including reasonable attorneys' fees) as
contemplated by, and in accordance with this Plan, and (ii) the Indenture
Trustees for all reasonable fees and expenses and indemnification amounts owed
to such Indenture Trustees pursuant to the respective Indentures and arising in
connection with the performance of services by the Indenture Trustees under the
respective Indentures or this Plan.
9.7 CLAIMS ADMINISTRATION RESPONSIBILITY.
(a) REORGANIZED DEBTORS. The Reorganized Debtors
will retain responsibility for administering, disputing,
objecting to, compromising, or otherwise resolving and making
distributions (if any) with respect to all Claims against and
Interests in the Debtors.
(b) FILING OF OBJECTIONS. Unless otherwise
extended by the Bankruptcy Court, any objections to Claims or
Interests shall be served and filed on or before forty-five
(45) days following the Effective Date. Notwithstanding any
authority to the contrary, an objection to a Claim or Interest
shall be deemed properly served on the Claimholder or
Interestholder if the Debtors or the Reorganized Debtors
effect service in any of the following manners: (i) in
accordance with Federal Rule of Civil Procedure 4, as modified
and made applicable by Bankruptcy Rule 7004; (ii) to the
extent counsel for a Claimholder or Interestholder is unknown,
by first class mail, postage prepaid, on the signatory on the
proof of claim or interest or other representative identified
on the proof of claim or interest or any attachment thereto;
or (iii) by first class mail, postage prepaid,
34
on any counsel that has appeared on the Claimholder's or
Interestholder's behalf in the Chapter 11 Cases.
9.8 DELIVERY OF DISTRIBUTIONS.
Distributions to Allowed Claimholders shall be made by the
Reorganized Debtor or the appropriate Servicer (a) at the addresses set forth on
the proofs of claim filed by such Claimholders (or at the last known addresses
of such Claimholders if no proof of claim is filed or if the Debtors have been
notified in writing of a change of address), (b) at the addresses set forth in
any written notices of address changes delivered to the Debtors or the
Reorganized Debtors, as applicable, after the date of any related proof of
claim, (c) at the addresses reflected in the Schedules if no proof of claim has
been filed and the Reorganized Debtors have not received a written notice of a
change of address, or (d) in the case of a Claimholder whose Claim is governed
by an agreement and administered by a Servicer, including an Indenture Trustee,
at the addresses contained in the official records of such Servicer or Indenture
Trustee. Distributions made to holders of Allowed AMERCO Unsecured Claims by the
Indenture Trustees shall be subject to the rights of the Indenture Trustees
under the Indentures and/or the Indenture Trustees Charging Liens. If any
Claimholder's distribution is returned as undeliverable, no further
distributions to such Claimholder shall be made unless and until the Reorganized
Debtors or the appropriate Servicer or Indenture Trustee is notified of such
Claimholder's then-current address, at which time all missed distributions shall
be made to such Claimholder or Interestholder without interest. Amounts in
respect of undeliverable distributions shall be returned to the Reorganized
Debtors until such distributions are claimed. All funds or other undeliverable
distributions returned to the Reorganized Debtors and not claimed within six
months of return shall revert to the Reorganized Debtors.
9.9 PROCEDURES FOR TREATING AND RESOLVING DISPUTED AND
CONTINGENT CLAIMS.
(a) No DISTRIBUTIONS PENDING ALLOWANCE. No
payments or distributions will be made with respect to all or
any portion of a Disputed Claim or Disputed Interest unless
and until all objections to such Disputed Claim or Disputed
Interest have been settled or withdrawn or have been
determined by a Final Order, and the Disputed Claim or
Disputed Interest has become an Allowed Claim or Allowed
interest. All objections to Claims or Interests must be filed
on or before forty-five (45) days following the Effective
Date.
(b) LIABILITY FOR DISPUTED CLAIMS AND INTERESTS.
If a Disputed Claim or Disputed Interest becomes, in whole or
in part, an Allowed Claim or Allowed Interest, the Reorganized
Debtors shall distribute to the holder thereof the
distributions, if any, to which such holder is entitled. No
interest shall be paid on Disputed Claims or Disputed
Interests that later become Allowed Claims or Allowed
Interests or with respect to any distribution in satisfaction
thereof. The Reorganized Debtors shall be responsible for all
distributions to holders of Disputed Claims or Disputed
Interests that become, in whole or in part, Allowed Claims or
Allowed Interests. The Reorganized Debtors shall not required
to create or maintain a separate distribution reserve to make
payments pursuant to Article 9.8(b) of this Plan.
(c) DE MINIMIS DISTRIBUTIONS. The Reorganized
Debtors or the Servicers, as applicable, shall not be required
to make distributions of less than one hundred dollars ($100)
with respect to any Allowed Claim, unless a request therefor
is made in writing to the Reorganized Debtors on or before
forty-five (45) days following the Effective Date.
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9.10 FRACTIONAL SECURITIES; FRACTIONAL DOLLARS.
Neither the Reorganized Debtors nor the Servicer will be
required to make distributions or payments of fractions of dollars. Whenever any
payment of a fraction of a dollar under this Plan would otherwise be called for,
the actual payment shall reflect a rounding of such fraction to the nearest
whole dollar (up or down), with half dollars or less being rounded down.
ARTICLE X
ALLOWANCE AND PAYMENT OF CERTAIN ADMINISTRATIVE CLAIMS
10.1 DIP FACILITY CLAIM.
On the Effective Date, the DIP Facility Claim shall be allowed
in an amount to be agreed upon by the Debtors and, as applicable, the DIP
Lenders, or as ordered by the Bankruptcy Court with notice to the Statutory
Committees, not less than five (5) Business Days prior to the Effective Date,
and all obligations of the Debtors under the DIP Facility shall be paid in full
in Cash on the Effective Date; provided, however, that with respect to letters
of credit issued under the DIP Facility, such claims may be satisfied in full by
the cash collateralization of such letters of credit or by procuring back-up
letters of credit. Upon compliance with the foregoing sentence, all liens and
security interests granted to secure such obligations shall be deemed cancelled
and shall be of no further force and effect. To the extent that the DIP Lenders
or the DIP Agent have filed or recorded publicly any liens and/or security
interest to secure the Debtors' obligations under the DIP Facility, the DIP
Lenders or the DIP Agent, as the case may be, shall take any commercially
reasonable steps requested by the Debtors that are necessary to cancel and/or
extinguish such publicly filed liens and/or security interests.
10.2 PROFESSIONAL CLAIMS.
(a) FINAL FEE APPLICATIONS. All final requests
for payment of Professional Claims, Key Ordinary Course
Professional Claims, and requests for reimbursement of
expenses of members of the Statutory Committees must be filed
no later than the Professional Fee Bar Date.
(b) PAYMENT OF INTERIM AMOUNTS. Subject to the
Holdback Amount, on the Effective Date, the Debtors or
Reorganized Debtors shall pay all amounts owing to
Professionals, Key Ordinary Course Professionals, and members
of the Statutory Committees for all outstanding amounts
payable relating to prior periods through the Effective Date.
In order to receive payment on the Effective Date for unbilled
fees and expenses incurred through such date, the
Professionals and Key Ordinary Course Professionals shall
estimate fees and expenses due for periods that have not been
billed as of the Effective Date and shall deliver such
estimate to the Debtors, counsel for the Statutory Committees,
and the United States Trustee. Within forty-five (45) days
after the Effective Date, a Professional receiving payment for
the estimated period shall submit a detailed invoice covering
such period in the manner and providing the detail as set
forth in the Professional Fee Order or the Ordinary Course
Professional Order, as applicable. Should the estimated
payment received by any Professional exceed the actual fees
and expenses for such period, this excess amount will be
credited against the Holdback Amount for such Professional or,
if the award of the Holdback Amount for such matter is
insufficient, disgorged by such Professional.
36
(c) HOLDBACK AMOUNT. The Holdback Amount shall
not be considered property of the Debtors, the Reorganized
Debtors or the Estates. The Reorganized Debtors shall pay to
Professionals the Holdback Amount within ten (10) days
following allowance thereof by the Bankruptcy Court.
(d) POST-EFFECTIVE DATE RETENTION. Upon the
Effective Date, any requirement that Professionals or Key
Ordinary Course Professionals comply with Sections 327 through
331 of the Bankruptcy Code in seeking retention or
compensation for services rendered after such date will
terminate, and the Reorganized Debtors will employ and pay
Professionals and Key Ordinary Course Professionals in the
ordinary course of business.
10.3 SUBSTANTIAL CONTRIBUTION COMPENSATION AND EXPENSES
BAR DATE.
Any Person who requests compensation or expense reimbursement
for making a substantial contribution in the Chapter 11 Cases pursuant to
Sections 503(b)(3), (4), and (5) of the Bankruptcy Code must file an application
with the clerk of the Bankruptcy Court on or before the 503 Deadline, and serve
such application on counsel for the Debtors and the Reorganized Debtors and as
otherwise required by the Bankruptcy Court and the Bankruptcy Code on or before
the 503 Deadline, or be forever barred from seeking such compensation or expense
reimbursement.
10.4 OTHER ADMINISTRATIVE CLAIMS.
All other requests for payment of an Administrative Claim
(other than as set forth in Article 10.1. Article 10.2 or Article 10.3 of this
Plan) must be filed and served on counsel for the Debtors and the Reorganized
Debtors no later than the Administrative Claims Bar Date. Any request for
payment of an Administrative Claim pursuant to this Article 10.4 that is not
timely filed and served by the Administrative Claims Bar Date shall be
disallowed automatically without the need for any objection from the Debtors or
the Reorganized Debtors. The Debtors or the Reorganized Debtors may settle an
Administrative Claim without further Bankruptcy Court approval. Unless the
Debtors or the Reorganized Debtors object to an Administrative Claim, such
Administrative Claim shall be deemed allowed in the amount requested. In the
event that the Debtors or the Reorganized Debtors object to an Administrative
Claim, the Bankruptcy Court shall determine the allowed amount of such
Administrative Claim. Notwithstanding the foregoing, (a) no request for payment
of an Administrative Claim need be filed with respect to an Administrative Claim
which is paid or payable by the Debtors in the ordinary course of business, and
(b) no request for payment of an Administrative Claim need be filed with respect
to the fees, expenses, disbursements and indemnity claims incurred by Servicers
and Indenture Trustees (including their counsel fees and expenses), in
connection with their services as Servicers and Indenture Trustees under the
respective Indentures (whether prepetition or postpetition), which fees shall be
paid in Cash promptly by the Reorganized Debtors without the need for
application to, or approval of, any court, and (c) no request for payment of an
Administrative Claim need be filed with respect to fees and expenses that the
Bankruptcy Court has previously ordered paid.
ARTICLE XI
EFFECT OF THE PLAN ON CLAIMS AND INTERESTS
11.1 REVESTING OF ASSETS.
Except as otherwise explicitly provided in this Plan, on the
Effective Date, all property comprising the Estates (including Retained Actions,
but excluding property that has been abandoned
37
pursuant to an order of the Bankruptcy Court) shall revest in each of the
Debtors that owned such property or interest in property as of the Effective
Date, free and clear of all Claims, liens, charges, encumbrances, rights and
Interests of creditors and equity security holders. As of the Effective Date,
the Reorganized Debtors may operate their businesses and use, acquire, and
dispose of property and settle and compromise Claims or Interests without
supervision of the Bankruptcy Court, free of any restrictions of the Bankruptcy
Code or Bankruptcy Rules, other than those restrictions expressly imposed by
this Plan and the Confirmation Order.
11.2 DISCHARGE OF THE DEBTORS.
Pursuant to Section 1141(d) of the Bankruptcy Code, except as
otherwise specifically provided in this Plan or in the Confirmation Order, the
distributions and rights that are provided in this Plan shall be in complete
satisfaction, discharge, and release, effective as of the Confirmation Date (but
subject to the occurrence of the Effective Date), of Claims and Causes of
Action, whether known or unknown, against, liabilities of liens on, obligations
of rights against the Debtors or any of their assets or properties, regardless
of whether any property shall have been distributed or retained pursuant to this
Plan on account of such Claims and rights including, but not limited to, Claims
that arose before the Confirmation Date, any liability (including withdrawal
liability) to the extent such Claims relate to services performed by employees
of the Debtors prior to the Petition Date and that arise from a termination of
employment or a termination of any employee or retiree benefit program,
regardless of whether such termination occurred prior to or after the
Confirmation Date, and all debts of the kind specified in Sections 502(g),
502(h) or 502(i) of the Bankruptcy Code, in each case whether or not (a) a proof
of claim based upon such Claim, debt or right is filed or deemed filed under
Section 501 of the Bankruptcy Code, (b) a Claim based upon such Claim, debt or
right is allowed under Section 502 of the Bankruptcy Code, or (c) the holder of
such a Claim or right accepted this Plan. The Confirmation Order shall be a
judicial determination of the discharge of all Claims against the Debtors,
subject to the Effective Date occurring.
11.3 COMPROMISES AND SETTLEMENTS.
In accordance with Article 9.6 of this Plan, pursuant to
Bankruptcy Rule 9019(a), the Debtors may compromise and settle various (a)
Claims against them and (b) Causes of Action that they have against other
Persons up to and including the Effective Date. After the Effective Date, such
right shall pass to the Reorganized Debtors as contemplated in Article 11.1 of
this Plan, without the need for further approval of the Bankruptcy Court, except
as otherwise set forth in this Plan.
11.4 RELEASES, EXCULPATION AND RELATED MATTERS.
(a) Releases by the Debtors. Pursuant to Section
1123(b)(3) of the Bankruptcy Code, effective as of the
Effective Date, the Debtors, in their individual capacity and
as debtors-in-possession for and on behalf of their Estates,
shall be deemed to forever release, waive, and discharge all
Released Parties from all claims, obligations, suits,
judgments, damages, demands, debts, rights, Causes of Action
and liabilities whatsoever, whether liquidated or
unliquidated, fixed or contingent, matured or unmatured, known
or unknown, foreseen or unforeseen, then existing or
thereafter arising, in law, equity or otherwise that are based
in whole or part on any act, omission, transaction, event or
other occurrence taking place on or prior to the Effective
Date in any way relating to (i) the Debtors, (ii) the
Reorganized Debtors, (iii) the Subsidiaries, (iv) the Chapter
11 Cases and the conduct thereof, and (v) the Plan. The
Reorganized Debtors shall be bound, to the same extent the
Debtors are bound, by all of the releases set forth in this
Article 11.4(a) of this Plan.
38
(b) Release by Holders of Certain Impaired
Claims. As of the Effective Date, each holder of an Impaired
Claim entitled to vote to accept or reject the Plan is also
entitled to vote to accept or reject the provisions of this
Article 11.4(b) of the Plan. Any holder of such Impaired Claim
that affirmatively elects on the ballot for voting on this
Plan to agree to the provisions of this Article 11.4(b) of the
Plan, shall in consideration for the obligations of the
Debtors and the Reorganized Debtors under this Plan and the
securities, contracts, instruments, releases and other
agreements or documents to be delivered in connection with
this Plan, forever release, waive and discharge all claims,
obligations, suits, judgments, damages, demands, debts,
rights, causes of action and liabilities (other than the
rights to enforce the Debtors' or the Reorganized Debtors'
obligations under this Plan and the securities, contracts,
instruments, releases and other agreements and documents
delivered thereunder), whether liquidated or unliquidated,
fixed or contingent, matured or unmatured, known or unknown,
foreseen or unforeseen, then existing or thereafter arising,
in law, equity or otherwise that are based in whole or in part
on any act, omission, transaction, event or other occurrence
taking place on or prior to the Effective Date in any way
relating to the Debtors, the Reorganized Debtors, the Chapter
11 Cases or the conduct thereof, or this Plan against: (i) the
Debtors; (ii) the Reorganized Debtors; and (iii) the Released
Parties.
(c) Exculpation and Limitation of Liability
Regarding Conduct of Chapter 11 Cases. The Debtors, the
Reorganized Debtors, the Statutory Committees, the members of
the Statutory Committees in their capacities as such, the DIP
Lenders, the DIP Agent, the Prepetition Agent, the Prepetition
Lenders, the Indenture Trustees, each holder of the AREC
Notes, and each such parties' respective professionals,
agents, present or former members, officers and directors and
any of such parties' successors and assigns, shall not have or
incur, and are hereby forever released, waived, and discharged
from any claims, obligations, suits, judgments, damages
demands, debts, rights, Causes of Action, or liabilities to
one another or to any Claimholder or Interestholder, or any
other party-in-interest, or any of their respective agents,
employees, professionals, or any of their successors and
assigns, for any act or omission, unless such act or omission
is caused by such parties' gross negligence or willful
misconduct, in connection with, relating to, or arising out of
(i) the Debtors' Chapter 11 Cases, (ii) the negotiation and
filing of this Plan, (iii) the filing of the Chapter 11 Cases,
(iv) the pursuit of confirmation of the Plan, including
distributions made under the Plan, and the consummation of
this Plan, including distributions made under the Plan, or (v)
the administration of this Plan or the property to be
distributed under this Plan.
(d) Exclusions and Limitations on Exculpation
and Releases. Notwithstanding anything in this Plan to the
contrary, the Confirmation of this Plan shall not (i) enjoin,
impact or affect the prosecution of the Derivative Actions,
the Class Actions or the Securities Actions, except that the
Debtors and the Reorganized Debtors shall retain the right to
object to the allowance of any Claim filed in the Chapter 11
Cases arising out of or related to the Derivative Actions, the
Class Actions or the Securities Actions, or (ii) release or
otherwise effect a release of PwC or any other party to the
PwC Litigation. In addition, nothing set forth in this Article
11.4 shall preclude or otherwise impair the rights of the SEC
to administer and enforce the United States federal securities
laws, except that the Debtors and the Reorganized Debtors
shall retain the right to object to the allowance of any Claim
filed by the SEC in the Chapter 11 Cases.
39
11.5 SETOFFS.
The Debtors may, but shall not be required to, set off against
any Claim, and the payments or other distributions to be made pursuant to this
Plan in respect of such Claim, claims of any nature whatsoever that the Debtors
may have against such Claimholder but neither the failure to do so nor the
allowance of any Claim hereunder shall constitute a waiver or release by the
Debtors or the Reorganized Debtors of any such claim that the Debtors or the
Reorganized Debtors may have against such Claimholder.
11.6 SUBORDINATION RIGHTS.
Except as otherwise specifically provided for in the Plan, all
Claims against the Debtors and all rights and claims between or among
Claimholders relating in any manner whatsoever to distributions on account of
Claims against or Interests in the Debtors, based upon any claimed subordination
rights, whether asserted or unasserted, legal or equitable, shall be deemed
satisfied by the distributions under the Plan to Claimholders or Interestholders
having such subordination right, and such subordination rights shall be deemed
waived, released, discharged, and terminated as of the Effective Date.
11.7 INDEMNIFICATION OBLIGATIONS.
Indemnification Obligations shall be deemed to be, and shall
be treated as, executory contracts that the Reorganized Debtors shall assume
pursuant hereto and Section 365 of the Bankruptcy Code as of the Effective Date.
Accordingly, such Indemnification Obligations shall survive unimpaired and
unaffected by entry of the Confirmation Order, irrespective of whether any such
Indemnification Right is owed for an act or event occurring before or after the
Petition Date.
11.8 D&O INSURANCE POLICIES.
D&O Insurance Policies maintained by the Debtors are hereby
assumed. Entry of the Confirmation Order shall constitute approval of such
assumptions pursuant to Section 365(a) of the Bankruptcy Code. Each Reorganized
Debtor shall have the authority, in its sole discretion to maintain from the
Effective Date D&O Insurance Policy coverage for the categories of individuals
covered, as of the Petition Date, by such policies at levels and on terms no
less favorable to such individuals than the terms and levels provided for under
the policies assumed pursuant to this Plan.
11.9 INJUNCTION.
The satisfaction, release, and discharge pursuant to this
Article XI shall act as an injunction against any Person commencing or
continuing any action, employment of process, or act to collect, offset, or
recover any Claim or Cause of Action satisfied, released, or discharged under
this Plan to the fullest extent authorized or provided by the Bankruptcy Code,
including, without limitation, to the extent provided for or authorized by
Sections 524 and 1141 thereof. Notwithstanding the foregoing, nothing in this
Article 11.9, the Plan or the Confirmation Order shall affect, release, enjoin
or impact the prosecution of the claims asserted or to be asserted against the
non-Debtor defendants in the Derivative Actions, the Class Actions or the
Securities Actions.
11.10 PMSR AGREEMENT.
Pursuant to this Plan and Section 1141(b), on the Effective
Date, Reorganized AMERCO and the other signatories to the PMSR Agreement shall
execute and deliver the PMSR Agreement. As of
40
the Effective Date, the holders of PMSR Support Obligations shall have an
Allowed AMERCO Unsecured Claim in the amount of $55,550,000.
ARTICLE XII
CONDITIONS PRECEDENT
12.1 CONDITIONS TO CONFIRMATION.
The following are conditions precedent to confirmation of this
Plan that may be satisfied or waived in accordance with Article 12.3 of this
Plan:
(a) The Bankruptcy Court shall have approved by
Final Order a Disclosure Statement with respect to this Plan
in form and substance acceptable to the Debtors in their sole
and absolute discretion.
(b) The Confirmation Order shall be in form and
substance acceptable to the Debtors in their sole and absolute
discretion.
12.2 CONDITIONS TO THE EFFECTIVE DATE.
The following are conditions precedent to the occurrence of
the Effective Date, each of which may be satisfied or waived in accordance with
Article 12.3 of this Plan:
(a) The Reorganized Debtors shall have entered
into the Exit Financing Facility and all conditions precedent
to the consummation thereof shall have been waived or
satisfied in accordance with the terms thereof.
(b) The Reorganized Debtors and SAC Holding
shall have entered into the SAC Holding Participation and
Subordination Agreement and all conditions precedent to the
consummation thereof shall have been waived or satisfied in
accordance with the terms thereof.
(c) The Bankruptcy Court shall have entered one or
more orders (which may include the Confirmation Order)
authorizing the assumption and rejection of unexpired leases
and executory contracts by the Debtors as contemplated by
Article 8 of this Plan.
(d) The Confirmation Order shall have been entered by
the Bankruptcy Court and shall be a Final Order, the
Confirmation Date shall have occurred, and no request for
revocation of the Confirmation Order under Section 1144 of the
Bankruptcy Code shall have been made, or, if made, shall
remain pending.
(e) Each Exhibit, document or agreement to be
executed in connection with this Plan shall be in form and
substance reasonably acceptable to the Debtors.
12.3 WAIVER OF CONDITIONS TO CONFIRMATION OR EFFECTIVE DATE.
The conditions set forth in Article 12.1 and Article 12.2 of
this Plan may be waived, in whole or in part, by the Debtors, after
consultation with the Statutory Committees, without any notice to any other
parties in interest or the Bankruptcy Court and without a hearing.
Notwithstanding the foregoing, the condition set forth in Article 12.2(a) may be
waived by the Debtors only with the prior
41
written consent of JPMorgan, in its capacity as agent under the JPMorgan Chase
Credit Facility. The failure to satisfy or waive any condition to the
Confirmation Date or the Effective Date may be asserted by the Debtors in their
sole discretion regardless of the circumstances giving rise to the failure of
such condition to be satisfied (including any action or inaction by the Debtors
in their sole discretion). The failure of the Debtors to exercise any of the
foregoing rights shall not be deemed a waiver of any other rights, and each such
right shall be deemed an ongoing right, which may be asserted at any time.
ARTICLE XIII
RETENTION OF JURISDICTION
Pursuant to Sections 105(a) and 1142 of the Bankruptcy Code,
the Bankruptcy Court shall have exclusive jurisdiction of all matters arising
out of, and related to, the Chapter 11 Cases and this Plan, including, among
others, the following matters:
(a) to hear and determine motions for (i)the
assumption or rejection or (ii) the assumption and assignment
of executory contracts or unexpired leases to which any of the
Debtors are a party or with respect to which any of the
Debtors may be liable, and to hear and determine the allowance
of Claims resulting therefrom including the amount of Cure, if
any, required to be paid;
(b) to adjudicate any and all adversary
proceedings, applications and contested matters that may be
commenced or maintained pursuant to the Chapter 11 Cases or
this Plan, proceedings to adjudicate the allowance of Disputed
Claims and Disputed Interests and all controversies and issues
arising from or relating to any of the foregoing;
(c) to ensure that distributions to Allowed
Claimholders are accomplished as provided herein;
(d) to hear and determine any and all objections
to the allowance or estimation of Claims and Interests filed,
both before and after the Confirmation Date, including any
objections to the classification of any Claim or Interest, and
to allow or disallow any Claim or Interest, in whole or in
part;
(e) to enter and implement such orders as may be
appropriate if the Confirmation Order is for any reason
stayed, revoked, modified and/or vacated;
(f) to issue orders in aid of execution,
implementation, or consummation of this Plan;
(g) to consider any modifications of this Plan,
to cure any defect or omission, or to reconcile any
inconsistency in any order of the Bankruptcy Court, including,
without limitation, the Confirmation Order;
(h) to hear and determine all applications for
allowance of compensation and reimbursement of Professional
Claims under this Plan or under Sections 330, 331, 503(b),
1103 and 1129(a)(4) of the Bankruptcy Code;
42
(i) to determine requests for the payment of
Claims entitled to priority under Section 507(a)(l) of the
Bankruptcy Code, including compensation of and reimbursement
of expenses of parties entitled thereto;
(j) to hear and determine disputes arising in
connection with the interpretation, implementation or
enforcement of this Plan or the Confirmation Order including
disputes arising under agreements, documents or instruments
executed in connection with this Plan;
(k) to hear and determine all suits or adversary
proceedings to recover assets of any of the Debtors and
property of their Estates, wherever located;
(l) to hear and determine matters concerning
state, local and federal taxes in accordance with Sections
346, 505 and 1146 of the Bankruptcy Code;
(m) to hear any other matter not inconsistent
with the Bankruptcy Code;
(n) to hear and determine all disputes involving
the existence, nature or scope of the Debtors' discharge,
including any dispute relating to any liability arising out of
the termination of employment or the termination of any
employee or retiree benefit program, regardless of whether
such termination occurred prior to or after the Effective
Date;
(o) to hear and determine disputes arising in
connection with the interpretation, implementation or
enforcement of the Plan;
(p) to enter a final decree closing the Chapter
11 Cases; and
(q) to enforce all orders previously entered by
the Bankruptcy Court.
ARTICLE XIV
MISCELLANEOUS PROVISIONS
14.1 BINDING EFFECT.
Upon the Effective Date, this Plan shall he binding upon and
inure to the benefit of the Debtors, the Reorganized Debtors, all present and
former Claimholders, all present and former Interestholders, other
parties-in-interest and their respective heirs, successors, and assigns.
14.2 MODIFICATION AND AMENDMENTS.
The Debtors may alter, amend or modify this Plan and any
Exhibits thereto under Section 1127(a) of the Bankruptcy Code at any time prior
to the Confirmation Hearing. After the Confirmation Date and prior to
substantial consummation of this Plan with respect to the Debtors as defined in
Section 1101(2) of the Bankruptcy Code, the Debtors may under Section 1127(b) of
the Bankruptcy Code, institute proceedings in the Bankruptcy Court to remedy any
defect or omission or reconcile any inconsistencies in this Plan, the Disclosure
Statement, or the Confirmation Order, and such matters as may be necessary to
carry out the purposes and effects of this Plan.
43
14.3 WITHHOLDING AND REPORTING REQUIREMENTS.
In connection with this Plan and all instruments issued in
connection therewith and distributions thereunder, the Debtors shall comply with
all withholding and reporting requirements imposed by any federal, stale, local
or foreign taxing authority, and all distributions hereunder shall be subject to
any such withholding and reporting requirements.
14.4 REVOCATION, WITHDRAWAL OR NON-CONSUMMATION.
(a) RIGHT TO REVOKE OR WITHDRAW. The Debtors
reserve the right to revoke or withdraw this Plan at any time
prior to the Effective Date.
(b) EFFECT OF WITHDRAWAL, REVOCATION OR
NON-CONSUMMATION. If the Debtors revoke or withdraw this Plan
prior to the Effective Date, or if the Confirmation Date or
the Effective Date does not occur, then this Plan, any
settlement or compromise embodied in this Plan with respect to
the Debtors (including the fixing or limiting to an amount
certain any Claim or Class of Claims with respect to the
Debtors, or the allocation of the distributions to be made
hereunder), the assumption or rejection of executory contracts
or leases effected by this Plan with respect to the Debtors,
and any document or agreement executed pursuant to this Plan
with respect to the Debtors shall be null and void as to the
Debtors. In such event, nothing contained herein or in the
Disclosure Statement, and no acts taken in preparation for
consummation of this Plan, shall be deemed to constitute a
waiver or release of any Claims by or against the Debtors or
any other Person, to prejudice in any manner the rights of the
Debtors, the holder of a Claim or Interest, or any Person in
any further proceedings involving the Debtors or to constitute
an admission of any sort by the Debtors or any other Person.
14.5 NOTICES.
Any notice required or permitted to be provided to the
Debtors, Statutory Committees, Prepetition Lenders, or the holders of the AREC
Notes, shall be in writing and served by (a) certified mail, return receipt
requested, (b) hand delivery, or (c) overnight delivery service, to be addressed
as follows:
IF TO THE DEBTORS: IF TO THE CREDITORS' COMMITTEE:
AMERCO c/o Milbank, Tweed, Hadley & McCloy LLP
1325 Airmotive Way, Suite 100 601 South Figueroa Street
Reno, Nevada 89502 Los Angeles, California 90017
Attention: Gary V. Klinefelter, Esq. Attention: Paul S. Aronzon, Esq.
WITH A COPY TO: IF TO THE AREC NOTEHOLDERS:
Squire, Sanders & Dempsey L.L.P. McDermott, Will & Emery
Two Renaissance Square 227 West Monroe Street
40 North Central Avenue, Suite 2700 Chicago, Illinois 60606
Phoenix, Arizona 85004 Attention: Nathan F. Coco, Esq.
Attention: Craig D. Hansen, Esq.
44
IF TO THE PREPETITION AGENT: IF TO THE EQUITY COMMITTEE:
JPMorgan Chase Bank Stutman, Treister & Glatt PC
270 Park Avenue 1901 Avenue of the Stars, 12th Floor
New York, New York 10017 Los Angeles, California 90067
Attention: John McDonagh Attention: Charles D. Axelrod, Esq.
WITH A COPY TO:
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue
Los Angeles, California 90071-3144
Attention: Richard B. Levin, Esq.
14.6 TERM OF INJUNCTIONS OR STAYS.
Unless otherwise provided herein or in the Confirmation Order,
all injunctions or stays provided for in the Chapter 11 Cases under Sections 105
or 362 of the Bankruptcy Code or otherwise, and extant on the Confirmation Date,
shall remain in full force and effect until the Effective Date.
14.7 GOVERNING LAW.
Unless a rule of law or procedure is supplied by federal law
(including the Bankruptcy Code and Bankruptcy Rules) or unless otherwise
specifically stated, the laws of the State of Nevada shall govern the
construction and implementation of this Plan, any agreements, documents and
instruments executed in connection with this Plan (except as otherwise set forth
in those agreements, in which case the governing law of such agreements shall
control). Corporate governance matters relating to Debtors shall also be
governed by the laws of the State of Nevada.
14.8 NO WAIVER OR ESTOPPEL.
Upon the Effective Date, each Claimholder or Interestholder
shall be deemed to have waived any right to assert that its Claim or Interest
should be Allowed in a certain amount, in a certain priority, secured, or not
subordinated by virtue of an agreement made with the Debtors and/or their
counsel, the Statutory Committees and/or their counsel, or any other party, if
such agreement was not disclosed in this Plan, the Disclosure Statement or
papers filed with the Bankruptcy Court.
14.9 SEVERABILITY.
In the event any provision of this Plan is held unenforceable
by the Bankruptcy Court, then such provision shall be severable and shall not
affect the remaining provisions of the Plan, unless the ineffectiveness of such
provision would result in a material adverse change in the treatment of any
Allowed Claim or Allowed Interest as provided in this Plan.
14.10 CONFLICTS.
In the event that the provisions of the Disclosure Statement
and the provisions of the Plan conflict, the terms of the Plan shall govern.
[Remainder of Page Intentionally Left Blank]
45
Dated: November 26, 2003
Reno, Nevada
Respectfully submitted.
AMERCO, a Nevada corporation
By: /s/ Edward J. Shoen
-----------------------------------------
Its Chief Executive Officer
AMERCO REAL ESTATE COMPANY, a Nevada
corporation
By: /s/ Carl Vizcarra
-----------------------------------------
Its President
SAC HOLDING CORPORATION, a Nevada corporation
By: /s/ Mark V. Shoen
-----------------------------------------
Its President
SAC HOLDING II CORPORATION, a Nevada
corporation
By: /s/ Mark V. Shoen
-----------------------------------------
Its President
46
EXHIBIT A-1
EXIT FINANCING FACILITY COMMITMENT LETTER
[SEE ATTACHED]
Wells Fargo Foothill, Inc.
2450 Colorado Avenue
Suite 3000W
Santa Monica, California 90404
November 5, 2003
VIA TELEFAX AND OVERNIGHT DELIVERY
Mr. E. J. Shoen
Chairman of the Board
U-Haul International, Inc.
2727 North Central Avenue
Phoenix, Arizona 85004
Re: $ 550,000,000 emergence financing for AMERCO, a Nevada
corporation ("AMERCO"), Amerco Real Estate Company, a Nevada
corporation ("AREC"), U-Haul International, Inc., a Nevada
corporation, and certain of their wholly-owned subsidiaries
(collectively, the "Borrowers" and each, individually, a
"Borrower"), plus such additional related entities as may be
guarantors under such financings
Dear Mr. Shoen:
In accordance with our recent discussions, Wells Fargo Foothill, Inc.
(formerly known as Foothill Capital Corporation, "Foothill") is pleased to issue
this financing commitment (the "Commitment Letter") to the Borrowers. Foothill
commits to underwrite a credit facility of up to $550,000,000 to be provided
concurrent with a confirmed reorganization plan acceptable to Foothill of the
respective Chapter 11 cases filed by AMERCO and AREC (the "Emergence Facility").
The commitments of Foothill under the Emergence Facility will be irrevocably
reduced by the amount of the commitments of any other prospective lenders that
execute commitments relating to the Emergence Facility to the extent expressly
stated in such commitment of such other prospective leaders.
This Commitment Letter supersedes all prior written proposals or
letters of interest with regard to the Emergence Facility that previously may
have been issued by Foothill, including, without limitation, that certain
Commitment Letter dated June 19, 2003, as supplemented by the term sheet
referred to therein to the extent such prior Commitment Letter relates to the
Emergence Facility, and that certain Fee Letter with respect to the Emergence
Facility dated June 19, 2003.
AMERCO -- Emergence Facility Commitment Letter
November 5, 2003
Page 2
Foothill would act as lead arranger and administrative agent for the
proposed Emergence Facility. The terms of the proposed Emergence Facility are
set forth in the "Summary of Terms" dated the date hereof, attached hereto as
Annex A (the "Term Sheet").
The Emergence Facility outlined in this Commitment Letter is fully
underwritten with no underwriting contingency, but is subject to the
satisfaction of each of the conditions contained in this Commitment Letter and
the Term Sheet, including, without limitation, syndication of the Emergence
Facility to the satisfaction of Foothill in its sole discretion. Foothill
reserves the right to revise or modify any provision contained in the Term Sheet
(provided that such changes shall not result in a reduction in the Maximum
Credit Amount or the Excluded Assets, as defined in the attached Annex A) if it
reasonably determines in its sole discretion that such changes are necessary
during the course of preparing and negotiating the loan documentation.
If the Emergence Facility contemplated by this Commitment Letter is not
consummated on or before July 31, 2004, then, without any requirement of notice
or other formality, Foothill's commitment to underwrite the Emergence Facility
shall terminate and no party hereto would have any obligation to pursue the
financing arrangement outlined in this Commitment Letter; provided, however,
that prior thereto the Borrowers and Foothill agree to use their respective
reasonable efforts to cause the Emergence Facility to be consummated on or
before such date.
As set forth herein, while Foothill has committed to underwrite the
entire amount of the Emergence Facility subject to the terms and conditions of
this Commitment Letter and the Term Sheet, it is the intent of Foothill to
syndicate the Emergence Facility and, as a material inducement to Foothill to
issue the commitments set forth herein, the Borrowers have agreed to cooperate
in such syndication process. Foothill will manage all aspects of such
syndication, including the timing of all offers to potential lenders, the
allocation of commitments and the determination of compensation provided and
titles (such as co-agent, managing agent, etc.), if any. The Borrowers also
agree that no lender will receive any compensation for its participation in the
Emergence Facility except as expressly set forth in the Term Sheet or as
otherwise agreed to and offered by Foothill.
The Borrowers agree to use commercially reasonable efforts to assist
Foothill in forming a syndicate acceptable to Foothill. The Borrowers'
assistance shall include but not be limited to: (i) using commercially
reasonable efforts to make senior management and representatives of the
Borrowers available to participate in meetings and to provide information to
potential lenders and participants at such times and places as Foothill may
reasonably request; (ii) using commercially reasonable efforts to provide to
Foothill all information reasonably deemed necessary by Foothill to complete the
syndication, subject to confidentiality agreements in form and substance
reasonably satisfactory to the Borrowers and Foothill; (iii) using best efforts
to ensure that the syndication efforts benefit from the Borrowers' existing
lending relationships; and (iv) assisting (including using best efforts to cause
affiliates and advisors of the Borrowers to assist) in the
AMERCO -- Emergence Facility Commitment Letter
November 5, 2003
Page 3
preparation of a confidential information memorandum for the Emergence Facility
and other marketing materials to be used in connection with the syndications.
To ensure an orderly and effective syndication of the Emergence
Facility, the Borrowers agree that, from the date hereof until the termination
of the syndication of the Emergence Facility (as determined by Foothill in its
sole discretion), the Borrowers will not, and will not permit any of their
affiliates to, syndicate or issue, attempt to syndicate or issue, announce or
authorize the announcement of the syndication or issuance of, any senior secured
debt security or commercial bank or other debt facility (including any renewals
thereof), without the prior written consent of Foothill, which consent shall not
be unreasonably withheld, conditioned or delayed; provided, that the foregoing
shall not limit the Borrowers' ability to negotiate with creditors, other than
creditors that are likely participants in an emergence facility such as the
Emergence Facility contemplated by this Commitment Letter, as part of the
Borrowers' restructuring. Notwithstanding anything in this letter to the
contrary, nothing contained herein shall prohibit or restrict the Borrowers from
entering into discussions or negotiations with an alternative lending source or
sources with respect to an emergence facility if the Borrowers determine, in
their reasonable discretion, that they can obtain substantially more favorable
terms from an alternative lender or lenders.
This Commitment Letter, the Term Sheet and the letter agreement of even
date with respect to certain fees payable with respect to the Emergence Facility
(the "Fee Letter") embody the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior proposals,
negotiations, or agreements whether written or oral, relating to the subject
matter hereof including any letter of intent. This Commitment Letter may not be
modified, amended, supplemented, or otherwise changed, except by a document in
writing signed by the parties hereto.
This Commitment Letter shall be governed by and construed in accordance
with the laws of the State of New York as applied to contracts entered into and
to be performed wholly within the State of New York. Each party hereto waives
any right it may have to a trial by jury, in the event of any dispute pertaining
to this Commitment Letter, the Term Sheet, the Fee Letter or the transactions
contemplated hereby and thereby.
In connection with the requested Emergence Facility, the Borrowers
understand that it will be necessary for Foothill to make certain financial,
legal, and collateral investigations and determinations and acknowledge the
undertaking by Foothill and its counsel of such investigations and
determinations currently. The Borrowers hereby agree to pay to Foothill an
expense deposit (the "Initial Expense Deposit") of $500,000 against the expenses
that have been or may be incurred by Foothill, whether under this Commitment
Letter or otherwise in connection with the Emergence Facility. From time to time
until the closing date of the Emergence Facility, the Borrowers shall pay
Foothill an additional expense deposit as requested by Foothill against the
expenses that have been or may be incurred by Foothill, whether under this
Commitment Letter or otherwise (the "Additional Expense Deposit"; and together
with the Initial Expense Deposit,
AMERCO -- Emergence Facility Commitment Letter
November 5, 2003
Page 4
hereinafter referred to as the "Expense Deposit"). The Expense Deposit will be
applied to Foothill's expenses as and when they are incurred. If Foothill
concludes, for any reason, that it will not make the Emergence Facility
available to the Borrowers, Foothill will return the unused balance of the
Expense Deposit. If, on the other hand, Foothill continues to be prepared to
extend the Emergence Facility to the Borrowers and the Borrowers decline, for
any reason, to accept the Emergence Facility, Foothill shall be entitled to
retain the full amount of the Expense Deposit for the benefit of Foothill,
irrespective of the amount of expenses incurred Foothill (except, to the extent
that the Expense Deposit exceeds the amount of the expenses incurred by
Foothill, such excess will be credited towards the Alternative Financing Fee
defined in the Fee Letter). Foothill's retention of the balance of the Expense
Deposit results from its reasonable endeavor to estimate the added
administrative costs incurred and the amount of damage sustained by Foothill as
a result of Borrowers' decision to decline to accept the Emergence Facility. If
the Emergence Facility is funded, the Expense Deposit will be returned to the
Borrowers after deducting all of Foothill's expenses actually incurred. Foothill
shall not be obligated to segregate the Expense Deposit from its other funds
and the Borrowers are not entitled to receive interest on any portion of the
Expense Deposit. The Borrowers hereby agree to pay the fall amount of Foothill's
expenses incurred in connection with the Emergence Facility and the preparation,
negotiation, execution and delivery of this Commitment Letter, the Term Sheet
and the loan documents and any security arrangements in connection therewith,
including the reasonable fees and disbursements of counsel (whether incurred
before or after the date hereof), irrespective of the amount of the Expense
Deposit and whether the transaction is actually consummated. The Borrowers
further agree to pay all costs and expenses of Foothill (including, without
limitation, reasonable fees and disbursements of counsel) incurred in connection
with the enforcement of any of its rights and remedies hereunder. Borrower
acknowledges its continuing obligation to provide, from time to time, as
Foothill shall request, additional supplements to the Expense Deposit to the
extent that actual or anticipated expenses exceed, or may reasonably be expected
to exceed, the Expense Deposit.
The Borrowers represent and warrant that (i) all information (other
than financial projections) that has been or will hereafter be made available to
Foothill, any lender or any potential lender by or on behalf of the Borrowers or
any of their respective representatives in connection with the transactions
contemplated hereby is and will be complete and correct in all material respects
and does not and will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
contained therein not misleading in light of the circumstances under which such
statements were or are made and (ii) all financial projections, if any, that
have been or will be prepared by or on behalf of the Borrowers or any of their
respective representatives and made available to Foothill, any lender or any
potential lender have been or will be prepared in good faith based upon
assumptions that are reasonable at the time made and at the time the related
financial projections are made available to Foothill, If, at any time from the
date hereof until the date of the initial borrowings under the Emergence
Facility, any of the representations and warranties in the preceding sentence
would be incorrect if the information or financial projections were being
furnished, and such representations and
AMERCO -- Emergence Facility Commitment Letter
November 5, 2003
Page 5
warranties were being made, at such time, then the Borrowers will promptly
supplement the information and the financial projections so that such
representations and warranties will be correct under those circumstances. The
Borrowers acknowledge that information and documents relating to the
transactions contemplated hereby may be transmitted through Intralinks, the
internet or similar electronic information transmission systems.
In issuing this Commitment Letter and in arranging the Emergence
Facility, including the syndication thereof, Foothill will be entitled to use,
and to rely on the accuracy of, the information furnished to them by or on
behalf of the Borrowers or any of their respective representatives without
responsibility for independent verification thereof.
Regardless of whether the commitment herein is terminated or the
proposed Emergence Facility closes, the Borrowers shall indemnify and hold
harmless Foothill and its affiliates, directors, officers, employees, attorneys
and representatives (each, an "Indemnified Person"), from and against all suits,
actions, proceedings, claims, damages, losses, liabilities and expenses
(including, but not limited to, attorneys' fees and disbursements and other
costs of investigation or defense, including those incurred upon any appeal),
that may be instituted or asserted against or incurred by any such Indemnified
Person in connection with, or arising out of, this Commitment Letter or the
proposed Emergence Facility under consideration, the documentation related
thereto, any other financing related thereto, any actions or failure to act in
connection therewith, and any and all environmental liabilities and legal costs
and expenses arising out of or incurred in connection with any disputes between
or among any parties to any of the foregoing, and any investigation, litigation,
or proceeding related to any such matters, whether or not such suit, action,
proceeding, investigation or litigation is brought by a Borrower, any of its
equity holders or creditors, an Indemnified Person or any other person or
entity, and whether or not an Indemnified Person is otherwise a party thereto.
Notwithstanding the preceding sentence, indemnitors shall not be liable for any
indemnification to an Indemnified Person to the extent that any such suit,
action proceeding, claim, damage, loss, liability or expense results solely from
that Indemnified Persons gross negligence or willful misconduct, as finally
determined by a court of competent Jurisdiction. Under no circumstances shall
Foothill or any of its affiliates be liable to you or any other person for any
punitive, exemplary, consequential or indirect damages in connection with this
Commitment Letter, the proposed Emergence Facility, the documentation related
thereto or any other financing, regardless of whether the commitment herein is
terminated or the transaction or the Emergence Facility closes.
You may not assign this Commitment Letter without the prior written
consent of Foothill, and any attempted assignment without such consent shall be
void:
You acknowledge that Foothill may provide debt financing, equity
capital or other services (including financial advisory services) to parties
whose interests may conflict with the Borrowers' interests. Foothill will not
furnish confidential information obtained from the Borrowers or their respective
affiliates to any of its customers. Furthermore, Foothill has no
AMERCO -- Emergence Facility Commitment Letter
November 5, 2003
Page 6
obligation to use in connection with the transactions contemplated hereby, or to
furnish to the Borrowers, confidential information obtained by Foothill from any
Other person.
If you wish to proceed on the basis outlined above, please execute this
Commitment Letter in the space provided below and return it to the undersigned
no later than 5:00 p.m., Los Angeles, California time, on or before November 5,
2003, accompanied by payment of the Initial Expense Deposit. If you fail to make
any required fee payment by the applicable deadline, this Commitment Letter
shall expire automatically and Foothill's commitments shall terminate and be of
no further force and effect. This Commitment Letter is being provided to the
Borrowers on a confidential basis and is not for the benefit of, nor should it
be relied upon by, any third party.
This Commitment Letter may be executed in any number of counterparts,
each of which, when so executed, shall be deemed to be an original and all of
which, taken together, shall constitute one and the same Commitment Letter.
Delivery of an executed counterpart of a signature page to this Commitment
Letter and the Fee Letter by telecopier shall be as effective as delivery of an
original executed counterpart thereof. The Borrowers' obligations with respect
to payment of costs and expenses, indemnities and confidentiality shall survive
the expiration or termination of this Commitment Letter whether or not the loan
documents shall be executed and delivered.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
AMERCO -- Emergence Facility Commitment Letter
November 5, 2003
Page 7
Very truly yours,
WELLS FARGO FOOTHILL, INC.,
formerly known as Foothill Capital
Corporation
By: /s/ [ILLEGIBLE]
-----------------------------------
Title: Senior Vice President
[SIGNATURES CONTINUED ON FOLLOWING PAGE]
AMERCO -- Emergence Facility Commitment Letter
November 5, 2003
Page 8
The foregoing terms and conditions are hereby accepted and agreed to as
of November 5, 2003.
AMERCO, a Nevada corporation, on behalf
of itself and its affiliates and
subsidiaries that will be Borrowers or
Guarantors as contemplated by the Term
Sheet
By: /s/ [ILLEGIBLE]
------------------------------------
Title: Chairman
cc: Chris D. Molen, Esq.
Jesse H. Austin, III, Esq.
EMERGENCE FACILITY COMMITMENT LETTER
ANNEX A
AMERCO AND AMERCO REAL ESTATE COMPANY, ET AL.
SUMMARY OF TERMS
$550,000,000 EMERGENCE FACILITY
NOVEMBER 5, 2003
The terms and conditions summarized herein represent the terms and
conditions pursuant to which Wells Fargo Foothill, Inc., formerly known as
Foothill Capital Corporation ("Foothill" or "Agent") will provide a $550,000,000
credit facility (the "Emergence Facility") to be provided concurrent with a
confirmed reorganization plan acceptable to Foothill of the respective Chapter
11 cases.
The proposed terms and conditions summarized herein with respect to the
Emergence Facility are provided to evidence the terms and conditions by which
Foothill hereby commits, in accordance with the terms of the accompanying
Commitment Letter, to provide financing to Borrowers and Guarantors under the
Emergence Facility.
BORROWERS: AMERCO, a Nevada corporation, Amerco Real Estate
Company, U-Haul International, Inc. and and certain
wholly-owned subsidiaries and affiliates
(collectively, the "Companies" or "Borrowers").
Excluded subsidiaries not to be considered Borrowers
would be Republic Western Insurance Company
("RepWest"), and its subsidiaries, and Oxford Life
Insurance Company ("Oxford"), and its subsidiaries
(collectively, the "Excluded Subsidiaries").
GUARANTORS: All U.S. affiliates (excluding SAC entities) and
subsidiaries of the Companies (that are not direct
Borrowers) as required by Foothill, but excluding all
Excluded Subsidiaries and SAC entities, (together
with Borrowers, each a "Loan Party" and collectively,
the "Loan Parties").
LEAD ARRANGER AND Wells Fargo Foothill, Inc.
ADMINISTRATIVE
AGENT:
FINANCING FACILITY: EMERGENCE FACILITY: A senior secured credit facility
with a Maximum Credit Amount of $550,000,000
consisting of (i) a revolving credit facility of up
to $200,000,000 ("Revolver"), with a $50,000,000
subfacility for the issuance of letters of credit,
plus (ii) a $350,000,000 amortizing term loan
facility
A-1
("Term Loan A"). Monthly principal amortization of
Term Loan A would be equal to $291,667.00 with the
remaining balance due in full upon maturity of the
Emergence Financing.
The Borrowing Base for the Emergence Facility shall
be equal to 60% of the fair market value of owned
real property. All such amounts would also be net of
all reserves for anticipated environmental
remediation costs for certain properties and other
customary and normal reserves, which may be
established by Agent. To the extent that the
Borrowing Base did not equal $550,000,000, Foothill
would consider an appropriate advance against
Borrower's rolling stock to accomplish such a level
on the Borrowing Base.
LETTERS OF CREDIT: Each letter of credit will be issued for the account
of a Borrower by Wells Fargo Bank or another bank
selected by Foothill, which shall be reasonably
satisfactory to the Borrower, and shall have an
expiry date that is not later than thirty (30) days
prior to the Maturity Date (as hereinafter defined)
unless on or prior to the Maturity Date such letter
of credit shall be cash collateralized in an amount
equal to 105% of the face amount of such letter of
credit. Borrowers and Guarantors will be bound by the
usual and customary terms contained in the letter of
credit issuance documentation of the issuing bank and
Foothill.
MATURITY DATE: Five (5) years from closing date (the "Maturity
Date").
EARLY TERMINATION: Termination of the Emergence Facility prior to the
Maturity Date shall be subject to a prepayment
premium payable to Foothill equal to the percentage
set forth in the following schedule of then
applicable Maximum Credit Amount for each full and
partial month remaining to the Emergence Facility
Maturity Date:
YEAR 1 YEAR 2 YEAR 3 YEAR 4 YEAR 5
- ------ ------ ------ ------ ------
2.00% 1.50% 1.00% 0.00% 0.00%
Other customary prepayments to be included in
definitive loan documentation (including sale of
assets, casualty events, etc.), subject to levels to
be negotiated.
COLLATERAL: Subject to a confirmed Plan acceptable to Foothill,
all obligations of the Loan Parties to Foothill shall
be secured by a first priority perfected security
interest in substantially all the assets of
Borrowers, but excluding (i) the existing promissory
A-2
notes issued to the Loan Parties by SAC Holdings and
its subsidiaries (and proceeds associated with the
monetization of such asset, as they may be amended or
restated from time to time), (ii) the Borrowers' real
estate subject to any currently existing synthetic
lease arrangements (and the proceeds associated with
the monetization of such assets), (iii) the stock of
RepWest and Oxford (and the proceeds associated with
the monetization of such assets), (iv) real property
subject to a lien by Oxford, (v) real property under
contract for sale at the time of the Closing, (vi)
real property defined as surplus property at the time
of Closing, (vii) proceeds in excess of $50,000,000
associated with the settlement, judgment or recovery
related to Borrower's lawsuit against PwC, and (viii)
vehicles (including any motor vehicle, trailer or
other asset) that become and remain subject to a TRAC
or Operating Lease transaction. The Emergence
Facility shall include provisions authorizing the
granting of a junior lien in substantially all of the
assets of the Borrowers in favor of those parties
receiving new notes in connection with the confirmed
Plan, subject to an intercreditor agreement, the
terms and conditions of which shall be reasonably
satisfactory to the Lenders.
All borrowings by Borrowers, all reimbursement
obligations with respect to letters of credit, all
costs, fees and expenses of the Lenders, and all
other obligations owed to the Lenders shall be
secured as described above and charged to the loan
account to be established under the Emergence
Facility.
INTEREST RATES: Advances outstanding under the Revolver would bear
interest, at Borrower's option, at (a) the Base Rate
plus the applicable margin set forth in the pricing
matrix below, or (b) at the LIBOR Rate plus the
applicable margin set forth in the pricing matrix
below:
Pricing Matrix
Senior Debt/ Base Rate LIBOR L/C
EBITDA Margin Margin Fee
- ------------ --------- ------ ---
1. TBD 1.50% 4.00% 4.00%
2. TBD 1.25% 3.75% 3.75%
3. TBD 1.00% 3.50% 3.50%
The effective interest rate would start at the level
1 pricing shown in the above grid and would remain at
level 1 for the first six months following the
closing. Thereafter, the interest rate will be
adjusted quarterly at each fiscal quarter-end based
on
A-3
Borrower's consolidated EBITDA for the trailing
twelve months.
Advances outstanding under Term Loan A would bear
interest at Borrower the LIBOR Rate plus 4.00%
percentage points.
Borrower would be charged a letter of credit fee
(plus bank issuance charges) at a rate as determined
under the Pricing Matrix times the undrawn amount of
all outstanding Letters of Credit.
As used herein (x) "Base Rate" means the rate of
interest publicly announced from time to time by
Wells Fargo Bank, N.A. at its principal office in San
Francisco, California, as its reference rate, base
rate or prime rate. The LIBOR Rate means the rate per
annum, determined by Foothill in accordance with its
customary procedures, at which dollar deposits are
offered to major banks in the London interbank
market, adjusted by the reserve percentage prescribed
by governmental authorities as determined by
Foothill. At no time shall the LIBOR Rate utilized
prior to application of the appropriate margin be
less than 1.00%. All interest and fees for the
Emergence Facility shall be computed on the basis of
a year of 360 days for the actual days elapsed. If
any Event of Default shall occur, interest shall
accrue under the Facility at a rate per annum equal
to 2.00% in excess of the rate of interest otherwise
in effect.
FEES: Unused Line Fee One half of one percent (0.50%)
(for the Financing on the unused portion of the
Facilities): respective Revolver Facility,
payable quarterly in arrears.
Letter of Credit As determined above in the
Fees (for the Pricing Matrix, plus the
Financing customary charges imposed by
Facilities): the letter of credit issuing
bank
A-4
Field Examination Without limiting the foregoing,
Fee (for the Borrowers would be required to
Financing pay (a) a fee of $850 per day,
Facilities): per analyst, plus out-of-pocket
expenses, for each financial
audit of Borrowers performed by
personnel employed by Agent,
and (b) the actual charges paid
or incurred by Agent if it
elects to employ the services
of one or more unrelated third
parties to perform financial
audits of Borrowers, to
appraise Borrowers' collateral,
or to assess Borrowers'
business valuation.
Borrowers shall also pay all applicable fees set
forth in the fee letter of even date herewith (the
"Fee Letter").
USE OF PROCEEDS: To refinance the DIP Facility, fund Borrowers'
confirmed Plan and for general corporate purposes
including the financing of working capital and
capital expenditures.
A-5
CONDITIONS The obligation of Foothill to make any loans or
PRECEDENT: assist in the issuance of any letters of credit in
connection with the Emergence Facility will be
subject to customary conditions precedent including,
without limitation, the following:
(a) Receipt of evidence of the entry of a final
Order confirming Borrower's Plan and
accompanying disclosure statement, and
satisfaction of all other conditions to the
confirmation of such Plan, which Plan,
disclosure statement, and confirmation Order
shall be in form and substance reasonably
acceptable to Foothill and which Plan will
include, among things, a level of assets both
in number and value, acceptable to Foothill.
Such acceptance shall not be unreasonably
withheld to the extent that Borrower's
post-emergence capital structure takes the
form similar to that outlined in a the Plan
filed with the Bankruptcy Court on October 6,
2003.
(b) Receipt of management's projections and
business plan for the succeeding twelve (12)
month period on a month-by-month basis and
the succeeding three year period on an annual
basis in form and substance reasonably
acceptable to Foothill.
(c) Payment of all reasonable fees and expenses
owing to Agent in connection with the
Emergence Facility.
(d) Execution and delivery of appropriate legal
documentation in form and substance
reasonably satisfactory to Foothill and the
satisfaction of the conditions precedent
contained therein and delivery of all
appropriate opinions of counsel relating
thereto, reasonably satisfactory in all
respects to Foothill.
(e) Payment in full of obligations owing and
amounts outstanding under the DIP Facility.
(f) Foothill shall have been granted a perfected,
first priority lien on all Collateral
including without limitation mortgages on all
owned real property in form and substance
satisfactory to Foothill. Foothill shall have
received real estate, UCC, tax and judgment
lien searches and other appropriate evidence,
confirming the absence of any liens on the
Collateral, except existing liens acceptable
to the Lenders.
A-6
(g) No default or event of default shall exist
under the loan documents for the DIP Facility
or the Emergence Facility, and no pending
claim, investigation or litigation by any
governmental entity shall exist with respect
to the Loan Parties or the transactions
contemplated hereby, except as previously
publicly disclosed through October 1, 2003.
(h) Insurance satisfactory to Foothill, such
insurance to include liability insurance for
which Foothill, will be named as an
additional insured and property insurance
with respect to the Collateral for which the
Agent, for the benefit of Foothill, will be
named as loss payee.
(i) Borrowers shall, at loan closing, have a
minimum of $25,000,000 in the aggregate of
unrestricted cash and available but unused
credit availability.
(j) The absence of (i) a Material Adverse Change
in the business operations, assets, condition
(financial or otherwise) or prospects of
Borrowers and Guarantors since March 31,
2003, as determined by Foothill in its sole
discretion, other than (x) the filing of the
Chapter 11 Cases and the events resulting
from the filing of the Chapter 11 Cases, (y)
the withdrawal by PriceWaterhouseCoopers of
its audit letter with respect to the
Borrowers' financial statements for the
fiscal year ended as of March 31, 2002, and
(z) such other matters as have been disclosed
in writing by Borrowers to Foothill or
disclosed to Borrower's public filings on or
before October 1, 2003, or (ii) an adverse
change or disruption in the loan syndication,
financial, banking or capital markets
generally that, in Foothill's judgment, could
materially impair the syndication of the
Emergence Facility.
(k) Foothill's completion of and satisfaction in
all respects with the results of its ongoing
due diligence investigation of the business,
assets, operations, properties (including
compliance with FIRREA), condition (financial
or otherwise), contingent liabilities,
prospects and material agreements of
Borrowers and their respective Subsidiaries.
(l) Execution of intercreditor agreements with
the holders of Term B Notes and secured bonds
("Subordinated Debt") resulting from any
confirmed Plan of Reorganization, in form and
substance satisfactory to Foothill.
(m) Satisfactory credit rating for the Facility
from Standard & Poors.
A-7
REPRESENTATIONS Usual representations and warranties, including,
AND WARRANTIES: but not limited to, corporate existence and good
standing, permits and licenses, authority to enter
into the respective loan documents, occurrence of
the closing date for the Facility, validity of the
Final Order, governmental approvals, non-violation
of other agreements, financial statements,
litigation, compliance with environmental, pension
and other laws, taxes, insurance, absence of
Material Adverse Change, absence of default or
unmatured default and priority of Foothill's
liens.
COVENANTS: Borrowers will be required to maintain an agreed
upon minimum fixed charge coverage ratio.
Borrowers will also have a limitation on capital
expenditures (to be determined based upon
Borrower's Plan). All such financial covenants
shall be tested quarterly. Financial reporting
shall include, without limitation, the delivery to
the Agent of monthly financial statements, audited
annual financial statements and annual updated
projections.
Other customary covenants (both positive and
negative), including, but not limited to, notices
of litigation, defaults and unmatured defaults and
other information, compliance with laws, permits
and licenses, inspection of properties, books and
records, maintenance of insurance, limitations
with respect to liens and encumbrances, dividends
and retirement of capital stock, guarantees, sale
and lease back transactions, consolidations and
mergers, investments, capital expenditures, loans
and advances, indebtedness, compliance with
pension, environmental and other laws, operating
leases, transactions with affiliates and
prepayment of other indebtedness.
With respect to certain affirmative covenants:
- Borrower will be required to continue a captive
self-insurance program for its fleet, as
currently provided by RepWest, provided however
that the Borrower may alter or replace its
captive self-insurance with the approval of
Foothill provided that the terms are reasonably
consistent with the program currently provided
by RepWest, and such approval will not be
unreasonably withheld by Foothill.
With respect to certain negative covenants:
- Borrower would be permitted to repay
Subordinated Debt using the proceeds of Excluded
Assets provided that no Event
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of Default is then in existence or will be in
existence as a result after giving effect to the
said event.
- Borrower would be permitted to prepay
Subordinated Debt, in other circumstances,
provided that (i) no Event of Default is then in
existence or will be in existence as a result
after giving effect to the said event, (ii)
payments shall not exceed 50% of Borrower's free
cash flow for the prior 12 months, and (iii)
Borrower shall have not less than $35,000,000 in
availability under the Facility plus
unrestricted cash after giving effect to the
said event and, Borrower's projected
availability for the next 12 months, after
giving effect to the said event, would not be
below $35,000,000.
- Borrower would be permitted to make cash
payments on Preferred Stock in existence as of
the Emergence Date, provided that (i) no Event
of Default is then in existence or will be in
existence as a result after giving effect to the
said event, (ii) cash payments shall not exceed
$13,000,000 annually, and (iii) Borrower shall
have not less than $35,000,000 in availability
under the Facility plus unrestricted cash after
giving effect to the said event and, Borrower's
projected availability for the next 12 months,
after giving effect to the said event, would not
be below $35,000,000.
CASH MANAGEMENT: Borrowers shall institute a cash management system
reasonably satisfactory to Agent, including
without limitation, establishing one or more
concentration accounts at financial institutions
acceptable to the Agent
REQUIRED LENDERS: Lenders holding 51% of the outstanding
commitments and/or exposure under the Facility,
except for provisions customarily requiring
unanimous approval by the Lenders.
EVENTS Of DEFAULT: Usual events of default, including, but not
limited to, payment, cross-default, violation of
covenants, breach of representations or
warranties, judgments, ERISA, material
environmental, change of control and other events
of default which are customary in facilities of
this nature.
GOVERNING LAW: All documentation in connection with the Financing
Facility shall be governed by the laws of the
State of New York applicable to agreements made
and performed in such State except as governed by
the Bankruptcy Code.
ASSIGNMENTS AND Foothill shall be permitted to assign its rights
PARTICIPATIONS: and obligations hereunder, or any part thereof, to
any person or entity without the consent of the
Loan Parties. Foothill shall be permitted to grant
participations in such rights and obligations, or
any part
A-9
thereof, to any person or entity without the
consent of the Loan Parties.
EXPENSES: The Loan Parties shall pay on demand all
reasonable fees and expenses of Foothill
(including legal fees, financial consultant fees
(if any), audit fees, search fees, filing fees,
and documentation fees, and expenses in excess of
the Deposit), incurred in connection with the
transactions contemplated by this Term Sheet,
whether or not such transactions close. Borrower
permits Foothill to charges such Expense to
Borrower's existing DIP Facility agented by
Foothill.
SYNDICATION: Agent to underwrite the Financing Facility and
syndicate to other qualified financial
institutions. Agent may change the terms,
structure (including, without limitation, the
maximum amount of the Revolver and Term Loan A),
tenor or pricing (including, without limitation,
the offering of an original issue discount) as
Agent, in its sole discretion, determines is
necessary to ensure a successful syndication of
the Emergence Facility; provided, however, such
changes shall not result in a reduction of the
Maximum Credit Amount of the Emergence Facility
nor a change in the Excluded Assets, as herein
defined.
A-10
EXHIBIT A-2
EXIT FINANCING FACILITY AGREEMENT
[TO BE FILED ON OR BEFORE THE EXHIBIT FILING DATE]
EXHIBIT B
PLAN SUPPORT AGREEMENT (CREDITORS' COMMITTEE)
[SEE ATTACHED]
EXECUTION COPY
PLAN SUPPORT AGREEMENT
This Plan Support Agreement (the "AGREEMENT") is made and entered into
as of November 12, 2003, by and among AMERCO, Amerco Real Estate Company,
("AREC", and together with AMERCO, collectively, the "DEBTORS"), each Nevada
corporations and debtors and debtors in possession, SAC Holding Corporation
("SAC") and SAC Holding II Corporation (together with SAC, collectively, "SAC
HOLDING"), each a Nevada corporation and non-debtors, the Official Committee of
Unsecured Creditors ("COMMITTEE") in the AMERCO Chapter 11 case, and the
individual Committee Member that are signatories hereto ("COMMITTEE MEMBER").
The Debtors, SAC Holding, the Committee, the Committee Members and any
subsequent person or entity that becomes a party hereto in accordance with the
terms hereof are referred to herein as the "PARTIES" and individually as a
"PARTY".
RECITALS
WHEREAS, on June 20, 2003, AMERCO filed a voluntary petition for relief
("AMERCO CASE") under Chapter 11 of Title 11 of the United States Code
("BANKRUPTCY CODE") and on August 13, 2003, AREC similarly filed a voluntary
petition for relief under Chapter 11 of the Bankruptcy Code (together with the
AMERCO Case, the "CASES").
WHEREAS, on June 27, 2003, the Office of the United States Trustee for
the District of Nevada (the "UNITED STATES TRUSTEE") appointed pursuant to
section 1102 of the Bankruptcy Code, the Committee in the Case, which
appointment has been amended by the United States Trustee from time to time.
WHEREAS, on October 6, 2003, the Debtors and SAC Holding (together,
"PROPONENTS") jointly filed a Joint Plan of Reorganization of AMERCO and AREC,
Debtors and Debtors-In-Possession under section 1121(a) of the Bankruptcy Code
(the "PLAN"), and a related disclosure statement (the "DISCLOSURE STATEMENT")
pursuant to section 1125 of the Bankruptcy Code (capitalized terms not otherwise
described herein shall have the meanings given them in the Plan).
WHEREAS, the Parties have engaged in good faith negotiations in
connection with the Plan with the objective of reaching an agreement concerning
the restructuring of the Debtors (the "RESTRUCTURING") and, in particular, the
treatment of holders of AMERCO Unsecured Claims (presently identified as Class 7
Claims under the Plan).
WHEREAS, the Parties now desire to implement the Restructuring pursuant
to this Agreement and amend the Disclosure Statement (hereafter the "AMENDED
DISCLOSURE STATEMENT") and the Plan (hereafter, the "AMENDED PLAN") in a manner
consistent with the terms set forth in this Agreement and the AMERCO Term Sheet
attached hereto as Exhibit "A," and incorporated herein by this reference (the
"TERM SHEET").
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WHEREAS, the Proponents intend to use their commercially reasonable
efforts to obtain approval of the Amended Disclosure Statement and obtain
confirmation of the Amended Plan by the United States Bankruptcy Court for the
District of Nevada ("BANKRUPTCY COURT"), in accordance with the Bankruptcy Code
and the Federal Rules of Bankruptcy Procedure ("BANKRUPTCY RULES") on terms
consistent with this Agreement and the Term Sheet.
WHEREAS, the Committee intends to use their commercially reasonable
efforts to cooperate and actively support confirmation and consummation of the
Plan, subject to the terms and conditions of this Agreement and the Term Sheet.
WHEREAS, the Committee Members that actually hold AMERCO Unsecured
Claims and become a signatory hereto are prepared, subject to the terms and
conditions of this Agreement and the Term Sheet, to vote their respective Claims
to accept the Amended Plan.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties agree as follows:
1. Amended Plan to Be Consistent With Term Sheet. The Amended
Plan and Amended Disclosure Statement shall provide for the treatment of AMERCO
Unsecured Claims and other features of the Amended Plan in a manner consistent
with the Term Sheet.
2. Approval of the Amended Disclosure Statement and Confirmation
of the Plan. Proponents shall use their commercially reasonable efforts to
obtain prompt approval of the Amended Disclosure in accordance with the
Bankruptcy Code and on terms consistent with this Agreement, and the Committee
and Committee Members shall cooperate fully in that regard. The Proponents and
the Committee shall take all reasonable, necessary and appropriate actions to
achieve confirmation and consummation of the Amended Plan as contemplated
herein.
3. Amendments and Modifications. Should any modification or
amendment to the Amended Plan be necessary to obtain confirmation of the Amended
Plan or for the Restructuring to be consummated, each of the Parties agrees to
negotiate in good faith any such amendments and modifications to the Amended
Plan.
4. Committee Support of the Restructuring and the Amended Plan.
So long as no Support Termination Event, as defined herein, has occurred, the
Committee shall: (i) support confirmation and consummation of the Amended Plan,
including supporting the Debtors' contention that they have, as part of
Confirmation of the Plan, satisfied each of the confirmation requirements set
forth in Section 1129(a) of the Bankruptcy Code, and (iii) recommend that all
parties-in-interest entitled to vote do so in favor of the Amended Plan.
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5. Voting in Favor of Amended Plan. So long as no Support
Termination Event has occurred, each Committee Member that is a signatory hereto
and that is entitled to vote an AMERCO Unsecured Claim agrees to timely vote
such Claim to accept the Plan.
6. Restrictions on Transfer. Without the prior written consent of
the Debtors and provided that no Support Termination Event shall have occurred,
each Committee Member that is a signatory hereto and that holds an AMERCO
Unsecured Claim hereby agrees not to (a) sell, transfer, assign, pledge, or
otherwise dispose of any of its AMERCO Unsecured Claims, in whole or in part, or
any interest therein, unless the transferee accepts such Claims subject to the
terms of this Agreement, or (b) grant any proxies, deposit any of its AMERCO
Unsecured Claims into a voting trust, or enter into a voting agreement with
respect to any such Claims unless such arrangement provides for compliance
herewith. Unless the Debtors have otherwise consented in writing or a Support
Termination Event shall have occurred, in the event that a Committee Member that
is a signatory hereto transfers such AMERCO Unsecured Claim prior to the last
date for voting on the Amended Plan, such transferee shall comply with and be
subject to all the terms of this Agreement so long as such Agreement remains in
effect, including but not limited to, such Committee Member's obligations to
vote in favor of the Amended Plan and shall, as a condition precedent to such
transfer, execute an agreement on terms substantially identical to the terms of
this Agreement and, upon commencement of the solicitation of votes to accept or
reject the Amended Plan, a ballot indicating its acceptance of the Conforming
Plan.
7. Reservation of Rights, Claims, Remedies and Defenses. Except
as expressly provided herein, each Party expressly acknowledges and agrees that:
(i) nothing herein is intended to, or does, in any manner waive, limit, impair
or restrict the ability of the Committee, or each Committee Member, whether or
not such Committee Member is a signatory hereto, to protect and to preserve all
of their rights, claims, remedies, defenses and interests; and (ii) by entering
into this Agreement, the Committee and each Committee Member, whether or not
such Committee Member is a signatory hereto, does not waive any of their legal
rights, claims or causes of action against the Proponents, if any, and any of
their affiliates or any defenses that the Committee or each Committee Member may
have in connection with any claim objection, avoidance action, adversary
proceeding or other action or legal proceeding that the Proponents or their
affiliates may bring against the Committee or any one or more of the Committee
Members. By execution of this Agreement, the Committee and the Committee Members
do not make any admissions of any law or fact.
8. Solicitation Acknowledgement. This Agreement is not and shall
not be deemed to be a solicitation for consents to the Amended Plan. The
solicitation of votes concerning the Amended Plan will not occur until parties
entitled to vote on the Amended Plan receive the Amended Disclosure Statement
and related ballots, as approved by the Bankruptcy Court.
9. Exclusivity. So long as no Support Termination Event has
occurred, the Committee shall support the Debtors' request to continue their
exclusive right to solicit
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votes to accept or reject the Plan under section 1121 of the Bankruptcy Code
through and including February 28, 2004.
10. Conditions. The Committee's and, to the extent applicable, the
Committee Member's obligations hereunder, are conditioned upon the satisfaction
or waiver of the following conditions:
a. By no later than June 1, 2004, the Bankruptcy Court
shall have entered an order confirming the Amended Plan and the Amended Plan's
Effective Date shall have occurred.
b. All materials, documents, instruments, notes,
agreements, pleadings, the Amended Disclosure Statement, the Amended Plan and
orders relating to the Amended Plan, debt securities issued or sold under the
Amended Plan or the Restructuring, including the SAC Holding Note Documents,
shall be substantially consistent with the Amended Plan and in form and
substance reasonably satisfactory to the Committee, Debtors and SAC Holding.
11. Support Termination Events. The obligations of a Party
hereunder, including the obligations of the Committee Members to vote to accept
the Plan under Section 5 and Section 6 hereof, shall terminate and be of no
further force and effect if one of the following events occurs (each a "Support
Termination Event"), and such Party does not waive such Support Termination
Event.
a. A breach of this Agreement by one or more of the other Parties
to this Agreement, including but not limited to the failure to either satisfy or
obtain the waiver of any condition set forth in paragraph 10, above;
b. A material adverse change, based on events occurring
subsequent to the effective date of this Agreement in the prospects, business,
assets, operations, liabilities or financial performance or condition of the
Debtors, U-Haul International, Inc., and its subsidiaries;
c. The Cases are converted to a case under Chapter 7 of the
Bankruptcy Code or the appointment of a trustee or examiner with expanded power
to actually operate the business of the Debtors in any of the Cases;
d. The Bankruptcy Court denies confirmation of the Amended Plan;
e. The Committee, in good faith, as a fiduciary for unsecured
creditors and based upon the written opinion of its counsel, determines that
termination of this Agreement is necessary or appropriate to comply with their
fiduciary duties and delivers notice thereof to the Proponents; or
f. The termination of the Debtors' right to file and solicit a
plan of reorganization under section 1121(d) of the Bankruptcy Code.
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Upon the occurrence of a Support Termination Event which has not been
waived in writing by the Parties within seven (7) business days of notice
hereof, the obligations of the Parties hereto shall immediately and
automatically terminate. In that event, no Party shall have any continuing
liability or liability for damages or any continuing obligation to any other
Party hereunder. It is understood and agreed by each of the Parties hereto that
money damages are waived and that such damages would not be a sufficient remedy
for any material breach of any provision of this Agreement by any Party and each
non-breaching Party shall be entitled to the sole and exclusive remedy of
specific performance and injunctive or other equitable relief as a remedy for
any such breach, without the necessity of securing or posting a bond or other
security in connection with such remedy.
12. Representations and Warranties. Each of the Parties represents
and warrants to each of the other Parties that the following statements are
true, correct and complete as of the date hereof:
a. It has all requisite power and authority to enter into this
Agreement and to carry out the transactions contemplated by, and perform its
respective obligations under, this Agreement.
b. The execution and delivery of this Agreement and the
performance of its obligations hereunder have been duly authorized by all
necessary action on its part.
c. The execution, delivery and performance by it of this
Agreement do not and shall not (i) violate any provision of law, rule or
regulation applicable to it or any of its subsidiaries or its certificate of
incorporation or by-laws or those of any of its subsidiaries or (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any material contractual obligation to which it or any of
its subsidiaries is a party or under its certificate of incorporation or by-laws
or other organizational documents.
d. The execution, delivery and performance by it of this
Agreement do not and shall not require any registration or filing with, consent
or approval of, or notice to, or other action to, with or by, any Federal, state
or other governmental authority or regulatory body.
13. Effectiveness; Amendments. This Agreement shall be effective
and binding upon the Proponents and the Committee once it has been executed by
such Parties. This Agreement shall not become effective and binding upon an
individual Committee Member unless and until a counterpart signature page to
this Agreement has been executed and delivered by such individual Committee
Member.
14. Governing Law; Jurisdiction. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of New York,
without regard to any conflicts of law provision that would require the
application of the law of any other jurisdiction. By its execution and delivery
of this Agreement, each of the Parties hereto hereby irrevocably and
unconditionally agrees for itself that the Bankruptcy Court
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shall have exclusive jurisdiction of all matters arising out of or in connection
with this Agreement.
15. Notices. All notices and consents hereunder shall be in
writing and shall be deemed to have been duly given upon receipt if personally
delivered by courier service, messenger, telecopy, or by certified or registered
mail, postage prepaid return receipt requested, to the following addresses, or
such other addresses as may be furnished hereafter by notice in writing, to the
following parties:
If to the Committee or a Committee Member, to:
Milbank, Tweed, Hadley & McCloy LLP
601 S. Figueroa Street, 30th Floor
Los Angeles, CA 90017
Facsimile No.: (213)629-5063
Attn: Paul S. Aronzon
If to the Debtors or SAC Holding:
AMERCO
2727 North Central Avenue
Phoenix, AZ 85004
Facsimile No.: (602)263-6173
Attn: Gary V. Klinefelter
with a copy to:
Squire, Sanders & Dempsey L.L.P.
Two Renaissance Square
40 North Central Avenue, Suite 2700
Facsimile No.: (602) 253-8129
Attn: Craig D. Hansen
16. Representation by Counsel. Each Party acknowledges that it has
been represented by counsel in connection with this Agreement and the
transactions contemplated by this Agreement. Accordingly, any rule of law or any
legal decision that would provide any Party with a defense to the enforcement of
the terms of this Agreement against such Party based upon lack of legal counsel
shall have no application and is expressly waived.
17. Headings. The headings of the paragraphs and subparagraphs of
this Agreement are inserted for convenience only and shall not affect the
interpretation hereof.
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EXECUTION COPY
18. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of the Parties and their respective permitted successors,
assigns, heirs, executors, administrators and representatives.
19. Several, Not Joint, Obligations. The agreements,
representations and obligations of the Parties under this Agreement are, in all
respects, several and not joint.
20. Prior Negotiations. This Agreement supersedes all prior
negotiations with respect to the subject matter hereof but shall not supersede
the Amended Plan.
21. Counterparts. This Agreement (and any modifications,
amendments, supplements or waivers in respect hereof) may be executed in one or
more counterparts by manual or facsimile signature, each of which shall be
deemed an original and all of which shall constitute one and the same Agreement.
22. No Third-Party Beneficiaries. Except for the Committee Members
who are intended beneficiaries of paragraph 5 and 6 of the Agreement, this
Agreement shall be solely for the benefit of the Parties, and no other person or
entity shall be a third party beneficiary hereof.
23. Disclosure. Until there has been public disclosure of this
Agreement, (i) no disclosure of this Agreement shall be made by any Party hereto
without the prior approval of the other Parties, and (ii) no Party shall make
any public statement regarding the obligations hereunder without the prior
approval of the other Parties; provided, however, Proponents may disclose the
Committee support for the Amended Plan generally, as set forth in this
Agreement, without prior approval. Further, in any event, no written statement
concerning the position of another Party to this Agreement, beyond the language
of the Agreement, shall be made without the prior approval of the Party.
IN WITNESS WHEREOF, each of the Parties has caused this Agreement to be
executed and delivered by its duly authorized officer as of the date first above
written.
AMERCO
By: /s/ [ILLEGIBLE]
---------------------
Its: President
AMERCO REAL ESTATE COMPANY
By: /s/ [ILLEGIBLE]
---------------------
Its: President
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SAC HOLDING CORPORATION
By: /s/ [ILLEGIBLE]
---------------------
Its: President
SAC HOLDING II CORPORATION
By: /s/ [ILLEGIBLE]
---------------------
Its: President
THE OFFICIAL COMMITTEE OF
UNSECURED CREDITORS OF AMERCO
By: /s/ [ILLEGIBLE]
---------------------
Its: Counsel, Milbank, Tweed, Hadley & McCloy LLP
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EXECUTION COPY
EXHIBIT A
TERM SHEET
(DATED AS OF NOVEMBER 5, 2003)
9
SETTLEMENT COMMUNICATION -- DATE: NOVEMBER 5, 2003
INADMISSIBLE FOR ALL PURPOSES
AMERCO
TERM SHEET
SUMMARY OF INDICATIVE TERMS AND CONDITIONS OF THE RESTRUCTURING
AND TREATMENT OF THE CLASS 7 ALLOWED AMERCO UNSECURED CLAIMS
1. DEFINITIONS: Except as expressly provided herein, all capitalized
terms not otherwise defined will have the meanings
ascribed to such terms in the Joint Plan of
Reorganization dated as of October 6, 2003, as
amended to reflect the terms and conditions set forth
in this Term Sheet (the "PLAN").
2. CLASS MEMBERS AND Class 7 will consist of the holders of all Allowed
ESTIMATED ALLOWED CLAIM: AMERCO Unsecured Claims. As of the Effective Date
(estimated to be January 31, 2004), the amount of
Allowed Claims in Class 7, including interest
following the Petition Date through the anticipated
Effective Date, at the non-default contract rate, is
approximately $714,600,000.
3. TREATMENT SUMMARY:
Cash on Effective Date: Cash in the amount of $191,000,000, provided,
however, that the amount of Cash will be increased by
the same amount, if any, by which the principal
amount of the New Term Loan B Notes distributed to
the AMERCO Unsecured Claimholders is less than
$200,000,000, but not to exceed thirty-five percent
(35%) of the Allowed Class 7 Claims. The total Cash
distributed to AMERCO Unsecured Claimholders holding
Allowed Claims will be decreased, to the extent
required, in order for the Reorganized Debtors to
have minimum availability under the Exit Financing
Facility (defined as Cash plus undrawn revolver) at
the Effective Date of $80,000,000.
New Term Loan B Notes: $200,000,000 less the sum of: (i) the principal
amount of the New Term Loan B Notes externally
syndicated; and, (ii) the amount of the New Term Loan
B Notes distributed to the JPMorgan Claimholders and
AREC Note Claimholders pursuant to the Plan.
SAC Holding Senior Notes: $200,000,000.
New AMERCO Notes: $714,600,000, less distributions of Cash, New Term
Loan B Notes and SAC Holding Senior Notes to the
holders of Allowed AMERCO Unsecured Claims.
4. GLOBAL TERMS:
Transferability of New The New Debt Securities will be (i) fully
Securities: transferable, and (ii) either exempt from
registration under the Securities Act of 1933, or, if
an exemption is not available, registered at the sole
expense of AMERCO, or SAC Holding, as appropriate.
AMERCO and SAC Holding will use their reasonable best
efforts to support the establishment of a market in
the New Debt Securities. Additionally, SAC Holding
will continue to report its financial performance as
part of the consolidating financials of Reorganized
AMERCO, so long as Reorganized AMERCO is required to
consolidate SAC Holdings under GAAP. To the extent
Reorganized AMERCO is no longer required to
consolidate SAC Holdings under GAAP, SAC Holdings
will provide stand-alone audited financial
statements.
10
Governance and As of the Effective Date, AMERCO will be compliant in
Management: all material respects with all applicable laws and
regulations regarding governance and Board of
Director independence, including the then effective
requirements of (i) Sarbanes-Oxley; (ii) NYSE;
(iii) NASDAQ; and (iv) SEC.
Support of Carey Sale The Creditors' Committee agrees to support the
Transaction: Debtors in their efforts to execute the Carey Sale
Transaction, as it may be modified or supplemented,
subject to documentation reasonably satisfactory to
the Creditors' Committee.
11
5. SECURITIES SUMMARY
A. KEY TERMS OF NEW TERM
LOAN B NOTES
Issuer/Borrower: AMERCO ("BORROWER").
Guarantor: All Subsidiaries of AMERCO, including AREC, U-Haul,
and all their respective Subsidiaries, but excluding
RepWest, Oxford and all of their respective
Subsidiaries (collectively "GUARANTORS"). SAC
Holdings will not be a Borrower or Guarantor.
Principal Balance: Aggregate principal balance of $200,000,000.
Maturity/Term: 5 years following the Effective Date of the Plan.
Rating/Coupon: The Debtors agree to have the New Term Loan B Notes
rated by Standard & Poor's and price the New Term
Loan B Notes at a mutually acceptable price based
upon the rating obtained except that, to the extent
the New Term Loan B Notes are externally syndicated
in accordance with the JPMorgan Syndication Terms and
the AREC Syndication Terms, the market pricing
established by such syndication will govern the
pricing of the New Term Loan B Notes. Interest will
be paid in cash, quarterly in arrears.
Security/Collateral: A second priority (behind the Exit Financing
Facility), perfected security interest in
substantially all of the assets of the Borrowers and
Guarantors. The assets set forth on Schedule 1
attached hereto will not be part of the collateral
(the "EXCLUDED ASSETS"). The Indenture Trustee with
respect to the New Term Loan B Notes will enter into
an inter-creditor agreement in form and substance
reasonably acceptable to the Creditors' Committee,
the Debtors and Foothill.
Amortization: Non-amortizing.
Covenants and Other Customary for debt securities of this type. Such
Terms: covenants and terms will be set to take into account
the impact upon the syndication of the Exit Financing
Facility.
B. KEY TERMS OF THE NEW
AMERCO NOTES.
Issuer/Borrower: AMERCO ("BORROWER").
Guarantor: All Subsidiaries of AMERCO, including AREC, U-Haul,
and all their respective Subsidiaries, but excluding
RepWest, Oxford and all of their respective
Subsidiaries (collectively, "GUARANTORS"). SAC
Holding will not be a Borrower or Guarantor.
Principal Balance: The original principal amount of the New AMERCO Notes
will be equal to the Allowed Class 7 Claims, minus
the amount of Cash, New Term Loan B Notes and SAC
Holding Senior Notes distributed to the Class 7
Claimholders as set forth in this Term Sheet and the
Plan.
Maturity/Term: 7 years following the Effective Date.
Coupon/Rate: 12% cash, payable quarterly in arrears.
Security/Collateral: A first priority perfected security interest in: (i)
stock of Oxford; and first priority lien in the (ii)
real property under contract for sale as of the
closing of the Exit Financing Facility (the "SALE
PROPERTY"): (iii) property defined as surplus
property at the closing of the Exit Financing
Facility, as defined in such Exit Financing Facility
(the "SURPLUS PROPERTY"), and (iv) residual, restated
Existing SAC Holding Notes, including existing SAC
Holding Notes relating to 4 SAC, 5 SAC and 19 SAC,
but excluding any Existing SAC Holding Note that is
prohibited by an existing contractual relationship
from being pledged.
Ranking: The New AMERCO Notes will rank senior in right of
payment to any existing
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and future obligations with respect to the collateral
securing the New AMERCO Notes. The New AMERCO Notes
will rank junior with respect to the Exit Financing
Facility, New Term Loan B Notes, and any refinancing
thereof. The New AMERCO Notes will rank senior to all
existing and future subordinated debt to the extent
any claim exists above the value of the collateral
securing the New AMERCO Notes.
Optional Redemption: Following the Effective Date, Borrower may redeem
some or all of the New AMERCO Notes at a redemption
price of 100% of the principal amount of such Notes,
plus accrued and unpaid interest, if any, as of the
date of the redemption.
Mandatory Redemption: In the event Reorganized AMERCO: (i) executes a
sale, merger, dividend, transfer or other form of
monetization of the stock or assets of all or
substantially all of Oxford; (ii) monetizes the Sale
Property; or (iii) monetizes Surplus Property, 100%
of the net cash proceeds derived from such a
transaction will be used to redeem the New AMERCO
Notes at a redemption price of 100% of the principal
amount of the Notes, plus accrued and unpaid
interest, if any, as of the date of redemption. In
addition, 75% of net recoveries realized above
$50,000,000 (i.e. the first $50,000,000 is pledged as
collateral for the Exit Financing Facility) from the
PwC Litigation will used to redeem the New AMERCO
Notes at a redemption price of 100% of the principal
amount of such New AMERCO Notes, plus accrued and
unpaid interest, if any, as of the date of the
redemption.
Covenants: Limitation on the incurrence by Reorganized AMERCO
and the Guarantors of additional indebtedness,
including a defined basket of indebtedness senior to
the New AMERCO Notes.
Limitation on restricted payments by Reorganized
AMERCO and the Guarantors, provided however that
Reorganized AMERCO will be able to make certain
restricted payments, including dividends on existing
preferred stock and other restricted payments of a
type and amount customary under the terms of similar
indebtedness and, in all events, reasonably
acceptable to the Debtors and Creditors' Committee.
Limitation on merger, sale or consolidation by
Reorganized AMERCO and the Guarantors, provided that,
notwithstanding such limitations, Reorganized AMERCO
will not be restricted in the sale of the collateral
securing the payment of New AMERCO Notes for purposes
of redeeming such Notes.
Limitation on liens.
Other covenants customary under the terms of similar
indebtedness and, in all events, reasonably
acceptable to the Debtors and the Creditors'
Committee.
C. KEY TERMS OF SAC
HOLDING SENIOR NOTES
Issuer/Borrower: SAC Holding and SAC Holdings II (collectively, "SAC
HOLDING"). It is anticipated that prior to the
Effective Date, 4 SAC, 5 SAC and 19 SAC will be
transferred into a newly formed holding company ("NEW
SAC HOLDING"). New SAC Holding will not be an issuer,
borrower or guarantor with respect to the SAC Holding
Senior Notes, and 4 SAC, 5 SAC and 19 SAC will not be
SAC Holding Subsidiaries. If 4 SAC, 5 SAC and 19 SAC
are not transferred to New SAC Holding, such entities
will nevertheless not be issuers, borrowers or
guarantors with respect to or otherwise subject to
the SAC Holding Senior Notes. AMERCO, U-Haul, AREC
and all of their respective Subsidiaries will not be
an issuer, borrower or guarantor of the SAC Holding
Senior Notes.
Principal Balance: Aggregate principal balance of $200,000,000.
Maturity/Term: 10 years following the Effective Date.
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Coupon/Rate: 8.5% cash, payable quarterly in arrears.
Security/Collateral: None.
Ranking: The SAC Holding Senior Notes will be senior
indebtedness of SAC Holding and will be senior in
priority to all existing and future indebtedness of
SAC Holding, but will rank junior to the claims of
third-party senior secured mortgage debt at the SAC
Holding Subsidiary level.
Optional Redemption: 3 year no call, subject to carveout provision.
Thereafter, redeemable at the option of SAC Holding
at the following percentage of principal amount,
together with accrued but unpaid interest to the
redemption dates:
Year 4 - 104.0%
Year 5 - 103.0%
Year 6 - 101.5%
Year 7 through 10 - 100%
Mandatory Redemption In the event SAC Holding executes a sale, refinancing
or other form of monetization transaction involving
the real estate of any SAC Holding Subsidiary, 100%
of the net cash proceeds, after payment of
third-party senior secured mortgage indebtedness and
any fees and taxes, derived from such a transaction
will be used to redeem the SAC Holding Senior Notes
at a redemption price in accordance with the call
features outlined above, plus accrued and unpaid
interest, if any, to the date of redemption;
provided, however, that the redemption price in the
case of a sale, refinancing or other monetization of
3 SAC will be 101% of principal, plus accrued and
unpaid interest to the redemption date.
Covenants: Cross defaults with all current and future
indebtedness of SAC Holding and its Subsidiaries,
provided that any such cross default will be
restricted to a default that results in the
acceleration of such other indebtedness, which
acceleration is not rescinded or cured within 30 days
of notice of such cross-default
The Existing SAC Holding Notes will be restated to
provide for (i) the subordination of claims
thereunder against SAC Holding to those of the SAC
Holding Senior Notes, other than where such
subordination is prohibited by an existing
contractual relationship; and (ii) the subordination
of all amounts payable to SAC Holding under the
Existing SAC Holding Notes in the event of default in
the payment of the SAC Holding Senior Notes.
Limitations of liens against SAC Holding and its
Subsidiaries.
Limitations on the sale of equity interests in
existing SAC Holding Subsidiaries such that SAC
Holding may sell its interest in SAC Holding
Subsidiaries, provided that it obtains a third party
appraisal verifying the sales price received and,
provided further that net cash proceeds from a sale
are used as outlined under the Mandatory Redemption.
Limitation on the incurrence of indebtedness by SAC
Holding and its Subsidiaries, but for any extension,
renewal or replacement of any of the current
indebtedness of SAC Holding Subsidiaries, provided
that if any extension, renewal or replacement is in
an amount greater than the indebtedness so extended,
renewed or replaced (plus the amount of expenses,
fees and any premium or penalty paid in connection
with such extension, renewal or replacement), such
excess amount will be distributed in accordance with
the Mandatory Redemption provisions set forth above.
All inter-company claims of SAC Holding and its
subsidiaries will be subordinated to the SAC Holding
Senior Notes.
14
Other covenants customary under the terms of similar
indebtedness and, in all events, reasonably
acceptable to the Debtors, SAC Holding and the
Creditors' Committee. Notwithstanding the above, no
covenants will be included that would interfere with
the "ring fencing" of SAC Holding and its
Subsidiaries from Reorganized AMERCO.
SAC Holding Participation SAC Holding will be a co-proponent of the Plan with
and Subordination AMERCO and AREC. To facilitate the transactions
Agreement: contemplated by the Plan, SAC Holding and its
shareholders will execute and deliver the SAC Holding
Participation and Subordination Agreement, which will
be in form and substance reasonably acceptable to the
Debtors and the Creditors' Committee. The SAC Holding
Participation and Subordination Agreement will, among
other things, have provisions that ensure that SAC
Holding and its Subsidiaries are "ring fenced" and
separate and remote from AMERCO and its Subsidiaries
by containing terms, conditions and covenants that
are designed to facilitate such "ring fencing." The
SAC Holding and Participation and Subordination
Agreement will also contain provisions that provide
assurances that all of the transactions and
agreements contemplated by the Plan are valid,
enforceable in accordance with their terms, lawful,
not violative of other agreements and not subject to
avoidance, rescission or other collateral attack
under any applicable law. The SAC Holding
Participation and Subordination Agreement will be
approved the Bankruptcy Court as part of the
Confirmation of the Plan, supported by findings of
fact and conclusions of law, which will be contained
in a Confirmation Order, all of which will be in form
and substance reasonably acceptable to the Debtors
and the Creditors' Committee. The SAC Holding
Participation and Subordination Agreement will be in
existence for so long as the SAC Holding Senior Notes
and the New AMERCO Notes are outstanding, provided,
however, that if the SAC Holding Senior Notes are no
longer outstanding, the SAC Holding Participation and
Subordination Agreement will expire at such time as
all restated Existing SAC Holding Notes securing the
New AMERCO Notes have been retired.
15
SCHEDULE 1 TO TERM SHEET
EXCLUDED ASSETS
All capitalized terms set forth below will have the meaning ascribed to
such terms in the Exit Financing Facility commitment letter dated as of November
5, 2003, by and between Wells Fargo Foothill, Inc., and the Debtors, a true and
correct copy of which is Exhibit A-1 to the Plan.
1. The existing promissory notes issued to the Loan Parties by
SAC Holdings and its subsidiaries (and proceeds associated
with the monetization of such asset, as they may be amended or
restated from time to time;
2. The Borrowers' real estate subject to any currently existing
synthetic lease arrangements (and the proceeds associated with
the monetization of such assets);
3. The stock of RepWest and Oxford (and the proceeds associated
with the monetization of such assets);
4. Real property subject to a lien by Oxford;
5. Real property under contract for sale at the time of the
Closing;
6. Real property defined as surplus property at the time of
Closing;
7. Proceeds in excess of $50,000,000 associated with the
settlement judgment or recovery related to Borrowers' lawsuit
against PwC; and
8. vehicles (including any motor vehicle, trailer or other asset)
that become and remain subject to a TRAC or Operating Lease
transaction.
16
EXHIBIT C
RESTRUCTURING AGREEMENT (AREC NOTEHOLDERS)
[SEE ATTACHED]
RESTRUCTURING AGREEMENT
This Restructuring Agreement (this "Agreement") is made and entered
into as of August 12, 2003, by AMERCO Real Estate Company, a Nevada corporation
("AREC") and the signatories hereto that are holders of the Notes described
below (collectively, the "Noteholders"). AREC and the Noteholders are
collectively referred to herein as the "Parties" and individually as a "Party."
RECITALS
WHEREAS, AREC and the Noteholders have engaged in good faith
negotiations with the objective of reaching an agreement with regard to (i) the
restructuring of the $95,000,000 Senior Notes, Series A, due April 30, 2012 and
the $5,000,000 Senior Notes, Series B, due April 30, 2007, issued by AREC
(collectively, the "Notes") under that certain Note Purchase Agreement dated
March 15, 2002 (the "Purchase Agreement"), between AREC and the Noteholders, and
guaranteed by AREC's parent, AMERCO, a Nevada corporation ("AMERCO"), under and
pursuant to the Purchase Agreement, and (ii) the recapitalization of AREC and
AMERCO.
WHEREAS, on June 20, 2003, AMERCO filed for relief under Chapter 11 of
Title 11 of the United States Code, 11 U.S.C. Sections 101, et. seq. (the
"Bankruptcy Code"), which case is pending before the United States Bankruptcy
Court for the District of Nevada (the "Bankruptcy Court").
WHEREAS, AREC and the Noteholders desire to implement the financial
restructuring consistent with this Agreement and the term sheet attached hereto
and incorporated herein by reference as Exhibit A (the "Term Sheet," and the
restructuring and recapitalization contemplated therein, the "Financial
Restructuring"), by AREC filing for relief under Chapter 11 of the Bankruptcy
Code on or before August 14, 2003 (the "AREC Petition Date"). AREC intends to
file a motion with the Bankruptcy Court requesting that its Chapter 11 Case be
consolidated, for administrative purposes only, with the Chapter 11 Case of
AMERCO (collectively, with any other bankruptcy cases filed by any affiliates or
subsidiaries of AMERCO or AREC under the Bankruptcy Code, the "Chapter 11
Cases").
WHEREAS, in order to implement the Financial Restructuring, AREC
intends, subject to the terms and conditions of this Agreement and the Term
Sheet, to prepare a disclosure statement and a plan of reorganization consistent
with the terms set forth in this Agreement and the Term Sheet, to solicit
acceptances of such plan, and to file and seek approval of such Disclosure
Statement and confirmation of such plan in its administratively consolidated
Chapter 11 Cases, as expeditiously as possible under the Bankruptcy Code and the
Federal Rules of Bankruptcy Procedure (the "Bankruptcy Rules").
WHEREAS, each Noteholder executing this Agreement (each a "Consenting
Noteholder" and collectively, the "Consenting Noteholders") owns or controls the
aggregate principal amount of indebtedness under the Notes ("Existing Noteholder
Obligations"), in each case as identified on the signature pages hereto.
WHEREAS, in order to facilitate and expedite the implementation of the
Financial Restructuring, the Noteholders are prepared, subject to the terms and
conditions of this
Agreement, to vote their respective Claims (as that term is defined in the
Bankruptcy Code) against AREC and AMERCO arising under the Notes and the
Purchase Agreement (the "Noteholder Claims") to accept the "Conforming Plan" (as
defined in Section 3 hereof).
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby as agree as follows:
1. Recitals. Each of the foregoing Recitals is incorporated
hereby as if fully set forth herein.
2. Filing of Reorganization Case. AREC will commence its
voluntary Chapter 11 case by August 14, 2003, or such other date as may be
agreed to in writing by AREC and the Consenting Noteholders.
3. Conforming Plan, Conforming Disclosure Statement, Voting in
Favor of the Conforming Plan.
(a) For purposes of this Agreement, a "Conforming Plan"
and a "Conforming Disclosure Statement" shall mean, respectively, a
plan and disclosure statement, proposed by AREC and AMERCO pursuant to
the Bankruptcy Code and reasonably acceptable to the Consenting
Noteholders, that shall:
(i) effectuate the Financial Restructuring, in
accordance with the terms and conditions of this Agreement and
the Term Sheet;
(ii) grant the Noteholders allowed claims in the
Chapter 11 Cases on account of the Noteholder Claims in the
amount of (w) all outstanding principal on the Notes, (x)
interest accrued and unpaid on the Notes from October 15, 2002
up to the AREC Petition Date, payable at the default rate, (y)
interest accrued on the Notes from the AREC Petition Date up
to the actual date of payment of amounts due to the Consenting
Noteholders on the Effective Date pursuant to this Agreement
and the Term Sheet, payable at the non-default rate, and (z)
any applicable reasonable fees and expenses provided under the
Notes and the Purchase Agreement, including, without
limitation, all reasonable attorneys fees and other reasonable
professional advisor fees (collectively, the "Allowed
Noteholder Claims");
(iii) comply with all material terms of this
Agreement and the Term Sheet;
(iv) not otherwise prejudice rights, remedies,
claims, interests of the Noteholders, including the Allowed
Noteholder Claims, or the distributions to be made to the
Noteholders under this Agreement and the Term Sheet. The
Parties understand that the Conforming Plan and all related
documents will contain
2
customary provisions for transactions of the nature set forth
herein and in the Term Sheet;
(v) provide that AREC and AMERCO shall not
syndicate the "Term Loan B Notes" to "Market Participants"
(as outlined and defined in the Term Sheet) in excess of
$30,000,000 aggregate face par amount, unless such syndication
is completed in an amount not less than $80,000,000 aggregate
face par amount; and
(vi) provide that AREC and AMERCO shall pay to
the bondholders of AMERCO an amount no greater than
thirty-five percent (35%) of their claims against AMERCO in
cash from the proceeds of the Emergence Facility.
(b) Each Consenting Noteholder agrees to timely vote its
Noteholder Claim in favor of the Conforming Plan and not to revoke or
withdraw such vote unless the Conforming Plan shall be (i) modified to
provide for treatment of the Noteholders that is different in any
material respect from the treatment described in this Agreement and in
the Term Sheet or (ii) withdrawn by AREC or AMERCO. Each Consenting
Noteholder to this Agreement agrees not to elect on any ballot
concerning a Conforming Plan to preserve any rights, if any, that such
Party may have that may be affected by the releases provided for under
the Conforming Plan.
4. Restrictions on Transfer. Without the prior written consent of
AREC and provided that no "Event of Termination" (as defined in Section 9
hereof) has theretofore occurred, each Consenting Noteholder hereby agrees not
to (a) sell, transfer, assign, pledge, or otherwise dispose of any of its
Noteholder Claims, in whole or in part, or any interest therein, unless the
transferee accepts such claims subject to the terms of this Agreement, or (b)
grant any proxies, deposit any of its Noteholder Claims into a voting trust, or
enter into a voting agreement with respect to any of its Noteholder Claims
unless such arrangement provides for compliance herewith. Unless AREC has
otherwise consented in writing or an Event of Termination has theretofore
occurred, in the event that a Consenting Noteholder transfers such Noteholder
Claims prior to the last date for voting on the Conforming Plan, such transferee
shall comply with and be subject to all the terms of this Agreement so long as
such Agreement remains in effect, including, but not limited to, such Consenting
Noteholder's obligations to vote in favor of the Conforming Plan and shall, as a
condition precedent to such transfer, execute an agreement on terms
substantially identical to the terms of this Agreement and, upon commencement of
the solicitation of votes to accept or reject the Conforming Plan, a ballot
indicating its acceptance of the Conforming Plan.
5. AREC Agreements. During the term of this Agreement, AREC
hereby agrees to the following:
(a) AREC shall use all reasonable efforts to have the
Conforming Disclosure Statement approved by the Bankruptcy Court, and
to use all reasonable efforts to obtain an order of the Bankruptcy
Court confirming the Conforming Plan, in each case as expeditiously as
possible under the Bankruptcy Code and the Bankruptcy Rules and
3
consistent with the terms and conditions set forth in this Agreement
and in the Term Sheet.
(b) AREC shall (i) prior to the AREC Petition Date, make
a payment of all accrued and unpaid interest on the Notes from April
30, 2003 to the AREC Petition Date, payable at the default rate under
the Notes, (ii) prior to the AREC Petition Date, make a cash deposit of
(x) $400,000 for counsel to the Noteholders, McDermott Will & Emery,
and (y) $100,000 for the financial advisors to the Noteholders,
Houlihan, Lokey, Howard, & Zukin ("HLHZ"), to the Consenting
Noteholders for reasonable professional fees, including reasonable
attorneys fees and other reasonable professional advisor fees, incurred
after the Petition Date in connection with this Agreement, the Term
Sheet, the Financial Restructuring, and the Chapter 11 Cases, (iii)
subject to the approval of the Bankruptcy Court, make additional
prepayments for reasonable professional fees as reasonably requested by
the Consenting Noteholders from time-to-time, and (iv) separately pay,
prior to the AREC Petition Date, any accrued and unpaid reasonable fees
of such professionals, including attorneys and other professional
advisors, including, without limitation, fees due to HLHZ under that
certain Engagement Agreement between AREC and HLHZ.
(c) AREC shall use all reasonable efforts to obtain
approval by the Bankruptcy Court of (i) the $300,000,000
debtor-in-possession financing facility (the "DIP Facility") provided
to AREC and AMERCO by Wells Fargo Foothill, Inc., as lead arranger,
collateral agent, syndication agent and administrative agent
("Foothill"), and (ii) an emergence facility of approximately
$650,000,000 (the "Emergence Facility") also to be provided by Foothill
on the confirmation and consummation of the Conforming Plan, based on
the Term Sheet, attached hereto as Exhibit B (the "Foothill Term
Sheet"). Notwithstanding the references in this Agreement or the Term
Sheet to Foothill and the Foothill Term Sheet, AREC and AMERCO may
select an alternative senior lender or lenders to provide the DIP
Facility or the Emergence Facility under terms (i) similar in all
material respects to the Foothill Term Sheet and (ii) effectuating the
Financial Restructuring in accordance with the Term Sheet and this
Agreement.
(d) Except as provided pursuant to this Agreement and the
Term Sheet, AREC shall not request, shall not acquiesce in any request,
and shall use all reasonable efforts to oppose any request or action of
any other party that (i) impairs or changes the rights, remedies,
claims, powers, benefits, privileges, liens, security interests or
protections of the Noteholders, including, without limitation, any
objection to the Allowed Noteholder Claims, (ii) obtains any additional
credit outside of the ordinary course (other than the DIP Facility and
the Emergence Facility) without the prior written consent of the
Consenting Noteholders, (iii) other than through a Conforming Plan,
substantively consolidates the estates of AREC and any other entity,
including, without limitation, AMERCO, or (iv) rejects this Agreement
pursuant to Section 365 of the Bankruptcy Code or other applicable law.
Furthermore, AREC shall use all best efforts to obtain an order
approving the assumption of this Agreement pursuant to Section 365 of
the Bankruptcy Code on or before October 15, 2003.
4
(e) Reference is hereby made to the $205 million credit
facility (the "Credit Facility") under the Credit Agreement dated as of
June 28, 2002, among AMERCO, the lenders identified therein (the
"Revolver Lenders") and JPMorgan Chase Bank, acting as administrative
agent on behalf of the Revolver Lenders ("JPMorgan"). If the Revolver
Lenders and JPMorgan fail to execute a restructuring agreement
providing for the financial restructuring of the Credit Facility
consistent with the treatment of the Credit Facility, the Revolver
Lenders and JPMorgan as provided in the Term Sheet on or before
September 15, 2003, AREC hereby agrees that the Revolver Lenders and
JPMorgan shall not receive payment of any amounts from or under the DIP
Facility.
6. Support of the Conforming Plan.
(a) Provided that an Event of Termination has not
theretofore occurred, each Party shall use all reasonable efforts to
obtain confirmation of the Conforming Plan in accordance with the
Bankruptcy Code as expeditiously as possible, including, without
limitation, communicating its support of the Conforming Plan to the
holders of allowed impaired claims.
(b) Provided that an Event of Termination has not
theretofore occurred, no Party shall:
(i) object to confirmation of the Conforming
Plan or otherwise commence any proceeding to oppose or alter
the Conforming Plan or any other reorganization related
documents or agreements that implement and are consistent with
the Conforming Plan (the "Conforming Plan Documents"), which
shall include, but not be limited to any documents or
agreements related to the DIP Facility and the Emergence
Facility to the extent such documents substantially conform
to the terms of the Foothill Term Sheet, the Term Sheet, and
this Agreement,
(ii) vote for, consent to, support or participate
in the formulation of any other plan of reorganization or
liquidation proposed or filed or to be proposed or filed in
any of the Chapter 11 Cases,
(iii) directly or indirectly seek, solicit,
support or encourage any other plan, sale, proposal or offer
of dissolution, winding up, liquidation, reorganization,
merger or restructuring of AREC, AMERCO or any of their
subsidiaries that could reasonably be expected to materially
prevent, delay or impede the successful restructuring of AREC
and AMERCO as contemplated by the Conforming Plan or the
Conforming Plan Documents,
(iv) object to the Conforming Disclosure
Statement or the solicitation of consents to the Conforming
Plan, or
(v) take any other action that is inconsistent
with, or that would materially delay confirmation of, the
Conforming Plan.
5
7. Acknowledgment.
(a) This Agreement is not, and shall not be deemed to be,
a solicitation for consents to the Conforming Plan. The acceptances of
the Consenting Noteholders will not be solicited until such Parties
have received the Disclosure Statement approved by order of the
Bankruptcy Court as containing "adequate information," as such term is
defined in Section 1125(a)(l) and (2) of the Bankruptcy Code, the
Conforming Plan and related ballot.
(b) The Consenting Noteholders are creditors only. None
of the Consenting Noteholders, or any of their respective present or
former employees, officers, directors, or agents at any time has agreed
or consented to being an agent, principal, participant, joint venturer,
partner, or alter ego of AREC. None of the Consenting Noteholders or
any of their respective present or former employees, officers,
directors, or agents at any time has directed or participated in any of
the business dealings of AREC in any capacity other than as a creditor.
(c) Except as expressly set forth herein and subject to
the automatic stay provisions of Section 362 of the Bankruptcy Code:
(i) the Notes and the Purchase Agreement shall remain in full force and
effect in accordance with their respective terms; and (ii) nothing
contained in this Agreement shall: (A) modify or alter any of the terms
or provisions in the Notes or the Purchase Agreement in any manner
whatsoever, (B) cure, waive, release or postpone any defaults now or
hereafter existing under the Notes or the Purchase Agreement; (C)
establish a custom between any of the parties hereto; (D) in any way
waive, limit, or condition the rights of remedies of the Consenting
Noteholders under the Notes or the Purchase Agreement; or (E) cause the
Consenting Noteholders to be or be deemed in control of AREC and
AMERCO, their operations or properties, or to be acting as a
"responsible person" with respect to the operation and management of
AREC, AMERCO or their properties. Subject to the automatic stay
provisions of Section 362 of the Bankruptcy Code, the Consenting
Noteholders may exercise their respective rights and remedies with
respect to the events of default upon termination of this Agreement as
provided in Section 9 hereof.
8. Disclaimer. On or promptly following the AREC Petition Date,
the Parties agree that a copy of this Agreement shall be filed with the
Bankruptcy Court.
9. Termination of Agreement.
(a) Upon the effectiveness of this Agreement in
accordance with Section 26 hereof, the obligations of the Consenting
Noteholders and AREC hereunder shall remain effective and binding until
the "Effective Date" (as defined in the Term Sheet) of the Conforming
Plan unless terminated as provided herein.
(b) Upon the occurrence of an Event of Termination, which
has not been waived in writing by all Consenting Noteholders within
seven (7) business days of notice thereof, the obligations of the
Parties hereto shall immediately and automatically
6
terminate without further demand or notice of any kind. The occurrence
of any one or more of the following shall constitute an "Event of
Termination" hereunder:
(i) the Conforming Plan or any Conforming Plan
Document is modified to provide for treatment of the
Consenting Noteholders that is different in any material
respect from the treatment described in the Term Sheet;
(ii) the Conforming Plan or any Conforming Plan
Document is modified to provide for the treatment of the
Credit Facility that is different in any material respect from
the treatment described in the Term Sheet;
(iii) AMERCO or AREC pays to JPMorgan, on behalf
of the Revolver Lenders, more than $51,250,000 in cash in the
aggregate from the DIP Facility;
(iv) AREC fails to file the Conforming Plan and
Conforming Disclosure Statement on or before October 15, 2003;
(v) the Conforming Disclosure Statement is not
approved on or before December 15,2003;
(vi) the Conforming Plan is not confirmed on or
before February 27, 2004;
(vii) the Conforming Plan is not consummated on or
before March 15, 2004;
(viii) the Bankruptcy Court does not approve the
Emergence Facility as part of the confirmation of the
Conforming Plan;
(ix) the revolving credit facility and the 'Term
Loan A Notes" (as such term is defined in the attached Term
Sheet) exceeds $550,000,000 in face amount;
(x) the "Term Loan B Notes" (as such term is
defined in the attached Term Sheet), exceeds $200,000,000 in
face amount;
(xi) the Bankruptcy Court denies confirmation of
the Conforming Plan;
(xii) any of the Chapter 11 Cases are converted to
a case under Chapter 7 of the Bankruptcy Code or a trustee or
examiner with expanded powers is appointed in any of the
Chapter 11 Cases under any chapter of the Bankruptcy Code;
(xiii) any written representation or warranty made
by AREC to the Consenting Noteholders in this Agreement or the
Term Sheet (including without limitation, representations
relating to AREC or AMERCO's financial performance) is false
or misleading in any material respect;
7
(xiv) a material default occurs under the DIP
Facility and is not waived by the lenders under the DIP
Facility within ten (10) business days thereof;
(xv) the material breach of any provision of this
Agreement;
(xvi) the Bankruptcy Court finds or holds
unenforceable this Agreement, the Term Sheet, or any material
provision thereof;
(xvii) the estates of AREC and any other entity,
including, without limitation, AMERCO, are substantively
consolidated, other than through the Conforming Plan; or
(xviii) the voluntary or involuntary commencement of
any bankruptcy, receivership, or assignment for the benefit of
creditors proceeding by or against U-Haul International, Inc.
or any other material subsidiary of AMERCO or AREC, other than
as part of the implementation of the Conforming Plan.
(c) Except as set forth in Section 9(d) hereof, no Party
shall have any liability to the other or any other person as a result
of the termination of such Party's obligations hereunder in accordance
with this Section 9. In addition, each of the Parties hereunder
acknowledges and agrees that any assumption of this Agreement pursuant
to Section 5(d) hereof and Section 365 of the Bankruptcy Code shall not
result in the Noteholder Claims being granted any administrative
expense priority under the Bankruptcy Code in the Chapter 11 Cases
without further order of the Bankruptcy Court.
(d) Upon termination of this Agreement pursuant to
Section 9(a),
(i) except as set forth in Section 9(d)(iii)
hereof, all obligations contained herein of the Parties shall
immediately terminate and no provision contained herein shall
be binding upon any Party;
(ii) the Noteholders shall be immediately
entitled to exercise their rights and remedies under the Notes
and the Purchase Agreement; and
(iii) subject to the automatic stay provisions of
Section 362 of the Bankruptcy Code, the forbearance provided
in Section 11 hereof shall terminate and all amounts due and
owing under the Notes and the Purchase Agreement shall become
immediately due and payable, including, without limitation,
(x) all principal, (y) any and all accrued and unpaid interest
on the Notes, including default interest as provided in the
Notes, and (z) fees and expenses provided under the Notes and
the Purchase Agreement. Provided that the Noteholders have not
theretofore materially breached this Agreement, all such
amounts due under the Notes shall be deemed allowed claims by
AREC, and AREC shall not object to such claim being allowed in
the Chapter 11 Cases. In addition, the Noteholders retain all
rights to assert any "make-whole" provisions contained in the
Purchase Agreement as part of their allowed claim in the
Chapter 11 Cases, and AREC reserves all rights to dispute any
such "make-whole" provisions.
8
10. Good Faith Negotiation of Documents. Each Party hereby further
covenants and agrees to negotiate the definitive documents relating to the
Conforming Plan Documents, in good faith, and in any event, in all material
respects consistent with the Term Sheet.
11. Forbearance. Each Consenting Noteholder, for so long as no
Event of Termination has occurred, hereby severally agrees to forbear from
exercising any rights or remedies it may have under the Notes, the Purchase
Agreement and all related documents, applicable law, or otherwise (including
without limitation, the filing of an involuntary petition against AREC) with
respect to any default with respect to the Notes or the Purchase Agreement,
whether presently existing or hereafter arising. Notwithstanding the foregoing,
the forbearance provided herein shall terminate upon the termination of this
Agreement pursuant to Section 9 hereof, and the Consenting Noteholders shall
immediately be entitled to exercise their rights and remedies as provided in
Section 9(d) hereof, subject to the automatic stay provisions of Section 362 of
the Bankruptcy Code.
12. Representations and Warranties. Each Consenting Noteholder
represents and warrants that the statements set forth in clauses (a), (b), (e),
(f), and (g) below are true, correct and complete as of the date hereof, and
AREC represents and warrants that the statements set forth in clauses (a)
through (e) below are true, correct and complete as of the date hereof:
(a) Corporate Power and Authority. It is duly organized,
validly existing, and in good standing under the laws of the place of
its organization, and has all requisite corporate, partnership, limited
liability company or other similar power and authority to enter into
this Agreement and to carry out the transactions contemplated by, and
perform its respective obligations under, this Agreement.
(b) Authorization. The execution and delivery of this
Agreement and the performance of its obligations hereunder have been
duly authorized by all necessary corporate, partnership, limited
liability company, or other similar action on its part.
(c) No Conflicts. The execution, delivery and performance
by it of this Agreement do not and shall not (i) violate any provision
of law, rule or regulation applicable to it or any of its subsidiaries
or its certificate of incorporation or bylaws or other organizational
documents or those of any of its subsidiaries or (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of time
or both) a default under any material contractual obligation to which
it or any of its subsidiaries is a party.
(d) Governmental Consents. The execution, delivery and
performance by it of this Agreement do not and shall not require any
registration or filing with consent or approval of, or notice to, or
other action to, with or by, any federal, state or other governmental
authority or regulatory body, other than the approval of the Bankruptcy
Court, in the case of AREC.
(e) Binding Obligation. Subject to the provisions of
Sections 1125 and 1126 of the Bankruptcy Code, this Agreement is the
legally valid and binding obligation of each Party, enforceable against
each Party in accordance with the terms of this Agreement.
9
(f) Owner of Claims. As of the date hereof, each
Consenting Noteholders is the beneficial owner of, or holder of
investment authority over, its Noteholder Claim against AREC that it
has agreed to vote in favor of the Conforming Plan.
(g) Acknowledgment of Risks. Each Consenting Noteholder
has received and reviewed this Agreement and all schedules and exhibits
hereto and has received all such information as it deems necessary and
appropriate to enable it to evaluate the financial risk inherent in the
Conforming Plan.
13. Further Acquisition of_Claims. This Agreement shall in no way
be construed to preclude any of the Consenting Noteholders from acquiring
additional Noteholder Claims in the Chapter 11 Cases. However, any such
additional Noteholder Claims so acquired shall automatically be deemed to be
subject to the terms of this Agreement.
14. Amendments. This Agreement may not be modified, amended or
supplemented without the prior written consent of AREC and all of the Consenting
Noteholders.
15. Disclosure of Individual Consenting Noteholders. Unless
required by applicable law or regulation, AREC shall not disclose any Consenting
Noteholder's holdings of Existing Noteholder Obligations without the prior
written consent of such Consenting Noteholder; and if such announcement or
disclosure is so required by law or regulation, AREC shall afford the Consenting
Noteholder a reasonable opportunity to review and comment upon any such
announcement or disclosure prior to AREC's making such announcement or
disclosure. The foregoing shall not prohibit AREC from disclosing the
approximate aggregate holdings of Existing Noteholder Obligations by the
Noteholders as a group.
16. Consent to DIP Facility. Unless an Event of Termination has
occurred and subject to compliance with Section 5(e) hereof, the Consenting
Noteholders (a) consent to the approval of the DIP Facility, including the
partial payment to the Revolver Lenders from the proceeds of the DIP Facility as
set forth in the attached Term Sheet, and, (b) if requested by AREC, will
provide consents in form and substance reasonably acceptable to AREC and the
Consenting Noteholders relating to the implementation of the DIP Facility.
17. Governing Law; Jurisdiction. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of New York,
without regard to any conflicts of law provision which would require the
application of the law of any other jurisdiction. By its execution and delivery
of this Agreement, each of the Parties hereto hereby irrevocably and
unconditionally agrees for itself that any legal action, suit or proceeding
against it with respect to any matter under or arising out of or in connection
with this Agreement or for recognition or enforcement of any judgment rendered
in any such action, suit or proceeding, may be brought in the United States
District Court for the District of Nevada. By execution and delivery of this
Agreement, each of the Parties hereto irrevocably accepts and submits itself to
the nonexclusive jurisdiction of such court, generally and unconditionally, with
respect to any such action, suit or proceeding. Notwithstanding the foregoing
consent to Nevada jurisdiction, upon the commencement of the Chapter 11 Case by
AREC, each of the Parties hereto hereby agrees that the Bankruptcy Court shall
have exclusive jurisdiction of all matters arising out of or in connection with
this Agreement.
10
18. Specific Performance. It is understood and agreed by each of
the Parties hereto that money damages would not be a sufficient remedy for any
breach of this Agreement by any Party and each non-breaching Party shall be
entitled to specific performance and injunctive or other equitable relief as a
remedy of any such breach.
19. Headings. The headings of the sections, paragraphs and
subsections of this Agreement are inserted for convenience only and shall not
affect the interpretation hereof.
20. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of the Parties and their respective successors, assigns,
heirs, executors, administrators and representatives.
21. Prior Negotiations. This Agreement and the Term Sheet
supersede all prior negotiations with respect to the subject matter hereof.
22. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same Agreement. Delivery of an executed counterpart of
this Agreement by facsimile shall be equally as effective as delivery of the
original executed counterpart of this Agreement.
23. No Third-Party Beneficiaries. Unless expressly stated herein,
this Agreement shall be solely for the benefit of the Parties hereto and no
other person or entity shall be a third-party beneficiary hereof, other than
successors and assigns of any Party.
24. Consideration. It is hereby acknowledged by the Parties hereto
that no additional consideration shall be due or paid to the Noteholders for its
agreement to vote to accept the Conforming Plan in accordance with the terms and
conditions of this Agreement.
25. Notices.
(a) All notices hereunder to be served to AREC shall be
deemed given if in writing and delivered or sent by telecopy, courier
or by registered or certified mail (return receipt requested) to the
following addresses or telecopier numbers (or at such other addresses
or telecopier numbers as shall be specified by like notice):
AMERCO Real Estate Company
2727 North Central Avenue
Suite 500
Phoenix, Arizona 85004
Attn: Robert Peterson
Fax: 602-277-4879
with copy to:
SQUIRE, SANDERS & DEMPSEY L.L.P.
40 N. Central Avenue, Suite 2700
Phoenix, AZ 85004
Attn: Craig D. Hansen, Esq.
11
Fax: 602-253-8129
(b) All notices hereunder to be served to a Consenting
Noteholder shall be deemed given if in writing and delivered or sent by
telecopy, courier or by registered or certified mail (return receipt
requested) to the address or telecopier number for such Consenting
Noteholder set forth above its signature hereto (or at such other
addresses or telecopier numbers as shall be specified by like notice),
with copies to:
McDERMOTT, WILL & EMERY
227 W. Monroe Street, Suite 4400
Chicago, IL 60606
Attn: Elizabeth Majers, Esq.
Fax: 312-984-7700
26. Effectiveness. This Agreement shall become effective when AREC
has received counterparts of this Agreement duly executed and delivered by AREC
and all of the Noteholders.
[SIGNATURE PAGE TO FOLLOW]
12
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered by its duly authorized officer as of the
date first above written.
AREC:
AMERCO Real Estate Company
By: /s/ROBERT T. PETERSON
------------------------
Name: ROBERT T. PETERSON
Title: CONTROLLER
[Additional signature pages follow]
NOTEHOLDERS:
MONUMENTAL LIFE INSURANCE COMPANY
By: /s/ Martin J. Rosacker
-----------------------------
Name: Martin J. Rosacker
Title: Vice President
Principal Amount of Notes Owned or
Controlled: $21,000,000 Series A
Address: c/o AEGON USA INVESTMENT MANAGEMENT, LLC
4333 EDGEWOOD ROAD NE
CEDAR RAPIDS, IA 52499-5335
Attention: MARTIN J. ROSACKER
TRANSAMERICA LIFE INSURANCE
COMPANY
By: /s/ Martin J. Rosacker
-----------------------------
Name: Martin J. Rosacker
Title: Vice President
Principal Amount of Notes Owned or
Controlled: $10,500,000 Series A
Address: c/o AEGON USA INVESTMENT MANAGEMENT, LLC
4333 EDGEWOOD ROAD NE
CEDAR RAPIDS, IA 52499-5335
Attention: MARTIN J. ROSACKER
AUSA LIFE INSURANCE COMPANY
By: /s/ Martin J. Rosacker
-----------------------------
Name: Martin J. Rosacker
Title: Vice President
Principal Amount of Notes Owned or
Controlled: $3,500,000 Series A
Address: c/o AEGON USA INVESTMENT MANAGEMENT, LLC
4333 EDGEWOOD ROAD NE
CEDAR RAPIDS, IA 52499-5335
Attention: MARTIN J. ROSACKER
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
BY: /s/ Jeffery J. Lueken
-----------------------------------
Name: Jeffery J. Lueken
Title: Its Authorized Representative
Principal Amount of Notes Owned or
Controlled: $35,000,000 Series A
Address: The Northwestern Mutual Life Insurance
Company
720 E. Wisconsin Ave
Milwaukee, WI 53202
Attention: Colleen Gunther
NATIONWIDE LIFE INSURANCE COMPANY
By: /s/ MARK W. POEPPELMAN
-------------------------------------
Name: MARK W. POEPPELMAN
Title: AUTHORIZED SIGNATORY
Principal Amount of Notes Owned or
Controlled: $19,000,000 Series A
Address: One Nationwide Plaza
Columbus, Ohio 43215-2220
Attention: -------------------------
NATIONWIDE LIFE AND ANNUITY
INSURANCE COMPANY
By : /s/ MARK W. POEPPELMAN
---------------------------------------
Name: MARK W. POEPPELMAN
Title: AUTHORIZED SIGNATORY
Principal Amount of Notes Owned or
Controlled: $3,000,000 Series A
Address: One Nationwide Plaza
Columbus, Ohio 43215-2220
Attention: ----------------------
NATIONWIDE INDEMNITY COMPANY
By : /s/ MARK W. POEPPELMAN
---------------------------------------
Name: MARK W. POEPPELMAN
Title: AUTHORIZED SIGNATORY
Principal Amount of Notes Owned or
Controlled: $3,000,000 Series A
Address: One Nationwide Plaza
Columbus, Ohio 43215-2220
Attention: -----------------------
THE CANADA LIFE ASSURANCE COMPANY
By: /s/ J. G. Lowery
------------------------------
Name: J. G. Lowery
Title: Assistant Vice President,
Investments, U.S. Operations
By: /s/ Tad Anderson
------------------------------
Name: Tad Anderson
Title: Manager, Investments,
U.S. Operations
Principal Amount of Notes Owned or
Controlled: $5,000,000 Series B
Address: 8515 East Orchard Road, 3T2
Greenwood Village, CO 80111-5037
Attention: Ray Miller
EXHIBIT A
AREC/AMERCO
TERM SHEET
This Term Sheet describes the principal terms of the proposed
restructuring and recapitalization of certain of the outstanding indebtedness
AMERCO Real Estate Company, a Nevada corporation ("AREC") and its parent,
("AMERCO"), pursuant to a plan of reorganization (the "Conforming Plan") in
accordance with (a) Chapter 11 of Title 11 of the United States Code (the
"Bankruptcy Code") and (b) the terms and conditions contained herein. This Term
Sheet has been produced for discussion and settlement purposes only and is not
an offer with respect to any securities or a solicitation of acceptances of the
Conforming Plan.
CERTAIN DEFINITIONS
"AREC" means AMERCO Real Estate Company.
"Effective Date" means the date the Conforming Plan becomes
effective in accordance with its terms and conditions.
"Term Loan A Notes" means the notes to be issued by the
Debtors, as reorganized, jointly and severally, on the Effective Date of the
Conforming Plan, in the aggregate face amount not to exceed $350,000,000.
"Term Loan B Notes" means the notes to be issued by the
Debtors, as reorganized, jointly and severally, on the Effective Date of the
Conforming Plan, in the aggregate face amount not to exceed $200,000,000.
"Debtor or Debtors" means, collectively, AMERCO, AREC, and any
other, affiliates or subsidiaries of AMERCO or AREC who file voluntary petitions
for relief under Chapter 11 of the Bankruptcy Code, other than PAC Fourteen,
Inc. and PAC Fifteen, Inc.
"New Notes" means, collectively, the Term Loan A Notes and the
Term Loan B Notes.
CAPITALIZED TERMS USED HEREIN AND NOT OTHERWISE DEFINED SHALL HAVE THE
RESPECTIVE MEANINGS ASCRIBED TO THEM IN THAT CERTAIN RESTRUCTURING AGREEMENT, BY
AND AMONG, AREC AND THE NOTEHOLDERS SIGNATORY THERETO (THE "NOTEHOLDERS
RESTRUCTURING AGREEMENT").
TREATMENT OF NOTES
CLASSIFICATION: The Conforming Plan will place the claims of the Noteholders
in a single class, and such class will be impaired and
entitled to vote on the Conforming Plan.
CASH On the Effective Date of the Conforming Plan, the Consenting
DISTRIBUTIONS: Noteholders will receive the following cash distributions:
-- $65,000,00 in cash;
-- Additional cash in an amount equal to the sum of (a)
interest accrued and unpaid from October 15, 2002 up to the
AREC Petition Date, payable at the default rate; and (b)
interest accrued from the AREC Petition Date up to the
Effective Date, payable at the non-default rate.
DISTRIBUTION OF $18,600,000 (18.6% of remaining principal amount of the Notes)
NEW NOTES: exchanged for and satisfied with Term Loan A Notes under the
Emergence Facility in the par amount (net after any discount)
of $18,600,000, subject to the Syndication Terms set forth
in this Term Sheet.
$16,400,000 (16.4% of the remaining principal amount of the
Notes) exchanged for and satisfied with Term Loan B Notes
under the Emergence Facility in having an aggregate Market
Value (as defined below) of $16,400,000, subject to the
Syndication Terms set forth in this Term Sheet.
TERMS OF NEW As the New Notes are issued under the Emergence Facility, the
NOTES: New Notes (under both Term Loan A and Term Loan B) will be
identical to the notes issued under the Emergence Facility and
will be issued under the same credit agreement, note purchase
agreement, or comparable governing document, and will be
governed by and entitled to all of the same benefits and terms
as the Term Loan A Notes and Term Loan B Notes, including
borrowers, guarantors, maturity date, early termination
provisions, lien priority on collateral, interest rate, fees,
and all other terms of the Foothill Term Sheet, subject to the
qualification that the maturity of the New Notes will not
exceed 5 years from date of issuance.
FEES: On the Effective Date, the Noteholders will be entitled to
receive 2% of the par amount of Term Loan B Notes actually
issued to the Noteholders.
SYNDICATION AMERCO will obtain ratings for the Term Loan B Notes from
RIGHTS: either Fitch, S&P or Moody's prior to the Effective Date.
1. If the Term Loan B Notes are syndicated as described below,
then the "Market Value" of the Term Loan B Notes shall be the
price (net after any discounts) at which Term Loan B Notes are
purchased in such syndication.
-ii-
2.AMERCO will use its best efforts to arrange for placement of
a portion of the Term Loan B Notes to "Market Participants"
(as defined below). The proceeds of any commitments from new
Market Participants (as described below) above $30,000,000
aggregate face par amount of Term Loan B Notes will be paid
initially to the Revolver Lenders until the total cash
received by the Revolver Lenders equals 65% of the face amount
of the credit facility, and all proceeds thereafter will be
paid, on a pro rata basis, to the Revolver Lenders and
Noteholders, in lieu of an equal amount of Term Loan B Notes
to reduce, on a pro rata basis, the principal amounts required
to be purchased by the Revolver Lenders and the Noteholders.
3. In addition to any fees payable to the Noteholders as set
forth in this Term Sheet, to the extent the Term Loan B Notes
are offered or issued in a syndication with additional fees,
discounts, increased spreads, or other additional
compensations not already taken into account in the
determination of Market Value (whether paid pre- or
post-closing of the Term Loan B Notes, and including
anticipated flex fees), the Noteholders will fully participate
therein, on the same terms offered or issued to each other
holder of Term Loan B Notes.
4. If less than $20,000,000 of Term Loan B Notes are sold to
Market Participants on the same terms as issued to the
Noteholders, then the Noteholders will receive Term Loan A
Notes in the amount (net after any discount) of $16,400,000,
instead of any Term Loan B Notes, and the Noteholders will not
participate in the Term Loan B Notes. For purposes of this
Term Sheet, "Market Participants" shall be defined as
recognized institutional investors not affiliated with the
Debtors or with any "insider" (as that term is defined in the
Bankruptcy Code) of the Debtors.
NOTEHOLDER The reasonable fees and expenses of the financial and legal
FEES: professionals retained by the Noteholders shall be paid on the
Effective Date of the Conforming Plan, including, without
limitation, fees, including success fees, due to Houlihan,
Lokey, Howard, & Zukin ("HLHZ") under that certain Engagement
Agreement between AREC and HLHZ.
TREATMENT OF REVOLVER LENDERS
CLASSIFICATION: The Conforming Plan will place the claims of the Revolver
Lenders under the Credit Agreement in a single class or
subclass, and such class or subclass will be impaired and
entitled to vote on the Conforming Plan.
-iii-
TREATMENT: The treatment of the Revolver Lenders under the Conforming
Plan will not be different in any material adverse respect
from the treatment of the Noteholders described in this Term
Sheet, except that:
1. The Revolver Lenders will be paid cash in the amount of
$51,250,000 (25% of the existing Credit Facility) from the
proceeds of the DIP Facility if the Debtors and the Revolver
Lenders execute a restructuring agreement evidencing the terms
of this Term Sheet on or before September 15, 2003;
2. The Revolver Lenders will be entitled to be paid, on the
Effective Date of the Conforming Plan, additional cash in the
amount of $71,750,000 (35% of the existing Credit Facility) if
the Debtors and the Revolver Lenders execute a restructuring
agreement evidencing the terms of this Term Sheet on or before
September 15, 2003;
3. $48,400,000 (23.6% of the remaining principal amount of the
Credit Facility) satisfied with Term Loan A Notes under the
Emergence Facility in the par amount (net after any discount)
of $48,400,000, subject to the Syndication Terms set forth in
this Term Sheet; and
4. $33,600,000 (16.4% of the remaining principal amount of the
Credit Facility) satisfied with Term Loan B Notes under the
Emergence Facility having an aggregate Market Value of
$33,600,000, subject to the Syndication Terms set forth in
this Term Sheet.
OTHER TERMS
RELEASE AND The Conforming Plan will contain release and exculpation
EXCULPATION provisions in substantially the following form:
PROVISIONS:
1. As of the Effective Date, the Debtors and reorganized
Debtors will be deemed to forever release, waive and discharge
all claims, obligations, suits, judgments, damages, demands,
debts, rights, causes of action and liabilities whatsoever in
connection with or related to the Debtors, the Chapter 11
Cases or the Conforming Plan (other than the rights of the
Debtors or reorganized Debtors to enforce the Conforming Plan
and the contracts, instruments, releases, indentures, and
other agreements or documents delivered thereunder) whether
liquidated or unliquidated, fixed or contingent, matured or
unmatured, known or unknown, foreseen on unforeseen, then
existing or thereafter arising, in law, equity or otherwise
that are based in whole or part on any act, omission,
transaction, event or other occurrence taking place on or
prior to the Effective Date in any way relating to the
Debtors, the
-iv-
reorganized Debtors, the Chapter 11 Cases or the Conforming
Plan, and that may be asserted by or on behalf of the Debtors
or their estates or the reorganized Debtors against: (a) the
directors, officers, employees, agents and professionals of
the Debtors as of the AREC Petition Date and thereafter, (b)
the holders of prepetition lender claims, (c) the DIP Facility
agent and the holders of DIP Facility claims, (d) each
Consenting Noteholder and each Revolver Lender, and (e) the
directors, officers, employees, agents, and professionals (as
of the AREC Petition Date and thereafter) of the entities
released in subclauses (b) - (d).
2. As of the Effective Date, each prepetition lender, each
Consenting Noteholder and each Revolver Lender and each holder
of an impaired claim that affirmatively elects on the ballot
for voting on the Conforming Plan to do so, shall in
consideration for the obligations of the Debtors and the
reorganized Debtors under the Conforming Plan and the
securities, contracts, instruments, releases and other
agreements or documents to be delivered in connection with the
Conforming Plan, forever release, waive and discharge all
claims, obligations, suits, judgments, damages, demands,
debts, rights, causes of action and liabilities (other than
the rights to enforce the Debtors' or the reorganized Debtors'
obligations under the Conforming Plan and the securities,
contracts, instruments, releases and other agreements and
documents delivered thereunder), whether liquidated or
unliquidated, fixed or contingent, matured or unmatured, known
or unknown, foreseen or unforseen, then existing or thereafter
arising, in law, equity or otherwise that are based in whole
or in part on any act, omission, transaction, event or other
occurrence taking place on or prior to the Effective Date in
any way relating to the Debtors, the reorganized Debtors, the
Chapter 11 Cases, or the Conforming Plan against: (a) the
Debtors and the reorganized Debtors, (b) the directors,
officers, employees, agents and professionals of the Debtors
as of the AREC Petition Date and thereafter, (c) the holders
of prepetition lender claims and the agents thereto, (d) the
DIP Facility agent and the holders of DIP Facility claims, (e)
each Consenting Noteholder and each Revolver Lender, and (f)
the directors, officers, employees, agents, and professionals
(as of the AREC Petition Date and thereafter) of the entities
released in subclauses (a) - (e) acting in such capacity.
3. None of the Debtors, the reorganized Debtors, the
Consenting Noteholders, the Revolver Lenders, the holders of
DIP Facility claims, the DIP Facility agent, the holders of
prepetition lender claims, the agents thereto, nor any of
their respective present or former members, officers,
directors, employees, advisors, or attorneys shall have or
incur any liability to any holder of a claim or an interest,
or any other party in interest, or any of their respective
agents, employees,
-v-
representatives, financial advisors, attorneys, or affiliates,
or any of their successors or assigns, for any act or omission
in connection with, relating to, or arising out of, the
Chapter 11 Cases, formulating negotiating or implementing the
Conforming Plan, the solicitation of acceptances of the
Conforming Plan, the pursuit of confirmation of the Conforming
Plan, the confirmation of the Conforming Plan, the
consummation of the Conforming Plan, or the administration of
the Conforming Plan or the property to be distributed under
the Conforming Plan, except for their gross negligence or
willful misconduct, and in all respects shall be entitled to
reasonably rely upon the advice of counsel with respect to
their duties and responsibilities under the Conforming Plan.
EMERGENCE On the Effective Date, the Debtors shall close the Emergence
FACILITY: Facility with substantially the terms and conditions set
forth in the Foothill Term Sheet.
All funded obligations outstanding under the DIP Facility on
the Effective Date shall be repaid from borrowings under the
Emergence Facility.
AGREEMENT OF On or before September 15, 2003, the Revolver Lenders shall
REVOLVER execute a restructuring agreement (a) containing terms and
LENDERS IN conditions substantially the same, in all material respects,
SUPPORT OF THIS with the terms of this Term Sheet, including the financial
TERM SHEET: restructuring of the Credit Facility as outlined herein, and
(b) including an agreement by the Revolver Lenders to support
the terms and conditions contained herein and in the
Noteholders Restructuring Agreement, including the financial
restructuring of the Notes as outlined herein and in the
Noteholders Restructuring Agreement.
-vi-
EXHIBIT B
AREC/AMERCO
FOOTHILL TERM SHEET
ANNEX A
AMERCO AND AMERCO REAL ESTATE COMPANY, ET AL.
FINANCING COMMITMENT
$300,000,000 DIP FACILITY
$650,000,000 EMERGENCE FACILITY
JUNE 19, 2003
The proposed terms and conditions summarized herein represent the terms and
conditions pursuant to which Wells Fargo Foothill, Inc., formerly known as
Foothill Capital Corporation ("Foothill"), will underwrite (i) a $300,000,000
debtor-in-possession credit facility (the "DIP Facility") for purposes of
financing Borrowers' operations during the contemplated Chapter II
reorganization cases to be filed by Borrowers and Guarantors, and(ii) a
$650,000,000 credit facility (the "Emergence Facility") to be provided
concurrent with a confirmed reorganization plan acceptable to Foothill of the
respective Chapter II cases.
The proposed terms and conditions summarized herein with respect to the DIP
Facility and the Emergence Facility are provided to evidence the terms and
conditions by which Foothill hereby commits, in accordance with the terms of the
accompanying Commitment Letter, to provide financing to Borrowers and Guarantors
under the DIP Facility and the Emergence Facility.
BORROWERS: DIP FACILITY: AMERCO, a Nevada corporation, Amerco Real Estate
Company and certain of their wholly-owned subsidiaries as
required by Foothill (collectively, "Companies" or
"Borrowers"), each as a debtor-in-possession under cases to be
filed under chapter 11 of the United States Bankruptcy Code
(the "Chapter 11 Cases").
EMERGENCE FACILITY: AMERCO, a Nevada corporation, Amerco Real
Estate Company, U-Haul International, Inc. and such other of
their wholly-owned subsidiaries and affiliates as required by
Foothill (collectively, "Companies" or "Borrowers").
GUARANTORS: DIP FACILITY: All U.S. affiliates and subsidiaries of the
Companies (that are not direct Borrowers under the DIP
Facility) as required by Foothill, including, without
limitation, U-Haul International, Inc. and its subsidiaries
(together with Borrowers, each a "Loan Party" and
collectively, the "Loan Parties").
EMERGENCE FACILITY: All U.S. affiliates and subsidiaries of
the Companies (that are not direct Borrowers under the
Emergence Facility) as required by Foothill.
A-1
LEAD ARRANGER DIP FACILITY: Wells Fargo Foothill, Inc., f/k/a Foothill
AND Capital Corporation ("Agent" or "Foothill"), as lead arranger,
ADMINISTRATIVE collateral agent, syndication agent and administrative agent.
AGENT:
EMERGENCE FACILITY: Foothill, as lead arranger, administrative
agent, collateral agent and syndication agent.
FINANCING TRANCHED FACILITIES: Two separate senior secured credit
FACILITIES: facilities with Maximum Credit Amounts as follows:
(1) A $300,000,000 debtor-in-possession credit facility (the
"DIP Facility"), with the Maximum Credit Amount of
$300,000,000 available upon the entry of a final Order (the
"Final Order") approving such facility; and
(2) A $650,000,000 credit facility to be provided concurrent
with a confirmed reorganization plan of Borrowers' and
Guarantors' Chapter 11 cases acceptable to Agent (the
"Emergence Facility"). The DIP Facility and the Emergence
Facility shall collectively be referred to as the "Financing
Facilities."
APPROVAL OF DIP FACILITY: A senior secured credit facility
with a Maximum Credit Amount of $300,000,000 consisting of a
revolving credit facility of up to $200,000,000 ("DIP
Revolver"), with a $25,000,000 subfacility for the issuance of
letters of credit, plus an interest only term loan facility of
$100,000,000 ("DIP Term Loan"). Aggregate loans and letters of
credit under the DIP Facility upon entry of the Final Order
will be limited to the lesser of (a) $300,000,000, and (b) the
Borrowing Base (as hereinafter defined).
NOTE: The DIP Facility is being presented on the basis that
Borrowers will not seek approval on an interim basis but will
seek approval for the DIP Facility at a final hearing.
EMERGENCE FACILITY: A senior secured credit facility with a
Maximum Credit Amount of $650,000,000 consisting of (i) a
revolving credit facility of up to $200,000,000 ("Revolver"),
with a $25,000,000 subfacility for the issuance of letters of
credit, plus (ii) a $350,000,000 amortizing term loan facility
("Term Loan A") with amortization thereon to be determined,
plus (iii) a $100,000,000 term loan facility with no scheduled
amortization payments ("Term Loan B"). Aggregate loans and
letters of credit under the Revolver and Term Loan A of the
Emergence Facility will be limited to the lesser of (a)
$550,000,000, and (b) the Borrowing Base.
A-2
The Borrowing Base for the DIP Facility shall be 40% of the
fair market value of the Real Property Collateral with respect
to the DIP Revolver and the DIP Term Loan thereof. The
Borrowing Base for the Emergence Facility shall be 55% of the
fair market value of owned Real Property Collateral and shall
apply to the Revolver and Term Loan A thereof. All such
amounts would also be net of a reserve for anticipated
environmental remediation costs for certain properties, a
reserve for any title defects affecting the Real Property
Collateral (as defined below) deemed unacceptable to Agent,
and other customary and normal reserves (including, without
limitation, reserves for Carve-Out Expenses) which may be
established by Agent.
LETTERS OF Each letter of credit will be issued for the account of a
CREDIT: Borrower by Wells Fargo Bank or another bank selected by
Agent, which shall be reasonably satisfactory to Borrowers,
and shall have an expiry date that is not later than thirty
(30) days prior to the Maturity Date (as hereinafter defined)
unless on or prior to the Maturity Date such letter of credit
shall be cash collateralized in an amount equal to 105% of the
face amount of such letter of credit. Borrowers and Guarantors
will be bound by the usual and customary terms contained in
the letter of credit issuance documentation of the issuing
bank and Foothill.
MATURITY DATE: FINANCING UNDER THE DIP FACILITY: The earlier of (i) the date
which is twelve (12) months following the date of entry of the
Final Order, (ii) ten (10) days following the date of entry of
an Order confirming Borrowers' plan of reorganization (a
"Plan") in the Chapter 11 Cases acceptable to Foothill, and
(iii) the conversion of the Chapter 11 Cases to cases under
Chapter 7 of the Bankruptcy Code (such earliest date, the
"Maturity Date"). No confirmation order with respect to a Plan
entered in the Chapter 11 Cases will discharge or otherwise
affect in any way any of the joint and several obligations of
the Loan Parties to Foothill under the DIP Facility, other
than after the payment in full and in cash to Foothill of all
obligations under the DIP Facility on or before the effective
date of the Plan.
EMERGENCE FACILITY: Five (5) years from closing date of the
Emergence Facility (the "Emergence Facility Maturity Date").
A-3
EARLY Termination of the Emergence Facility prior to the Emergence
TERMINATION: Facility Maturity Date shall be subject to a prepayment
premium payable to Foothill equal to the percentage set forth
in the following schedule of then applicable Maximum Credit
Amount for each full and partial month remaining to the
Emergence Facility Maturity Date:
YEAR 1
YEAR 2
YEAR 3
YEAR 4
YEAR 5
2.00%
1.50%
1.00%
0.00%
0.00%
Other customary prepayments to be included in definitive loan
documentation (including sale of assets, casualty events,
etc.), subject to levels to be negotiated.
CLOSING DATE: With respect to the DIP Facility on the earlier of (i) July
31, 2003, or (ii) thirty (30) business days following
execution of the accompanying Commitment Letter and satisfying
the terms thereof (specifically including payment of any
required fees), subject only to the Bankruptcy Court having
entered the Final Order in form and substance reasonably
satisfactory to Foothill. Borrowings under the DIP Facility
are subject to entry of the Final Order, in form and substance
reasonably satisfactory to Foothill.
COLLATERAL: DIP Facility: All obligations of the Loan Parties to Foothill
shall be: (a) entitled to super-priority administrative
expense claim status pursuant to Section 364(c)(1) of the
Bankruptcy Code in each Chapter 11 Case, subject only to (i)
the payment of allowed professional fees and disbursements
incurred by the Loan Parties and any official committees
appointed in the Chapter 11 Cases, in an aggregate amount not
in excess of $5,000,000 (plus all unpaid professional fees and
disbursements incurred, accrued or invoiced prior to the
occurrence of an Event of Default, to the extent allowed by
the Bankruptcy Court) (ii) the payment of fees pursuant to
28 U.S.C.Section 1930 (collectively, the "Carve-Out Expenses")
and (b) secured pursuant to Sections 364(c)(2), (c)(3) and (d)
of the Bankruptcy Code by a security interest in
A-4
and lien on all now owned or hereafter acquired property and
assets of the Loan Parties, both tangible and intangible, and
real property (the "Real Property Collateral") and personal
property (including, without limitation, capital stock or
other equity interests of their subsidiaries), and the
proceeds thereof, excluding (i) Borrowers' real estate subject
to any currently existing synthetic lease arrangements and to
the existing promissory notes issued to Amerco Real Estate
Company by SAC Holdings and its subsidiaries, and (ii) causes
of action arising under Sections 502(d), 544, 545, 547, 548,
549, 550 or 551 of the Bankruptcy Code. The security interests
in and liens on the aforementioned assets of the Loan Parties
shall be first priority, senior secured liens not subject to
subordination, but subject to the Carve-Out Expenses.
Emergence Facility: Subject to a confirmed Plan acceptable to
Foothill, all obligations of the Loan Parties to Foothill
shall be secured by a first priority perfected security
interest in substantially all the assets of Borrowers and
Guarantors, but excluding (i) the existing promissory notes
issued to Amerco Real Estate Company by SAC Holdings and its
subsidiaries and (ii) Borrowers' real estate subject to any
currently existing synthetic lease arrangements. The Emergence
Facility shall include provisions authorizing the granting of
a junior lien in substantially all of the assets of Borrowers
in favor of those parties receiving new notes in connection
with the confirmed Plan, subject to an intercreditor
agreement, the terms and conditions of which shall be
satisfactory to Foothill. Such intercreditor agreement shall,
at a minimum, provide for both lien subordination and payment
subordination and shall, in all respects, be a "deeply
subordinated" instrument.
All borrowings by Borrowers, all reimbursement obligations
with respect to letters of credit, all costs, fees and
expenses of Foothill, and all other obligations owed to
Foothill shall be secured as described above and charged to
the loan account to be established under the Facilities.
INTEREST RATES: Advances outstanding under the DIP Facility shall bear
interest, at Borrowers' option, at (a) the LIBOR Rate plus
3.50%, or (b) the Base Rate plus 1.00%.
Advances outstanding under (i) the Emergence Facility Revolver
would bear interest, at Borrowers' option, at (a) the LIBOR
Rate plus 4.00%, or (b) the Base Rate plus 1.00%, and (ii)
advances outstanding under the Emergence Facility Term Loan A
would bear interest at the LIBOR Rate plus 4.00%. In addition,
the interest rate could be periodically reduced subject to
Borrowers
A-5
achieving certain financial performance and leverage ratios
("Performance Pricing Grid") to be determined.
Advances outstanding under the Emergence Facility Term Loan B
would bear interest at (i) the greater of the Base Rat plus
4.75% (ii) or 9.00% per annum; provided that 1.75% of such
interest will be payment-in-kind (PIK).
As used herein (x) "Base Rate" means the rate of interest
publicly announced from time to time by Wells Fargo Bank, N.A.
at its principal office in San Francisco, California, as its
reference rate, base rate or prime rate. The LIBOR Rate means
the rate per annum, determined by Foothill in accordance with
its customary procedures, at which dollar deposits are offered
to major banks in the London interbank market, adjusted by the
reserve percentage prescribed by governmental authorities as
determined by Foothill. With respect to the Emergence Facility
only, at no time shall the LIBOR Rate utilized prior to
application of the appropriate margin be less than 2.00%. All
interest and fees for the Financing Facilities shall be
computed on the basis of a year of 360 days for the actual
days elapsed. If any Event of Default shall occur, interest
shall accrue under the Facilities at a rate per annum equal to
2.00% in excess of the rate of interest otherwise in effect.
FEES: Unused Line Fee (for One half of one percent (0.50%) on the
the Financing unused portion of the respective
Facilities): Revolver Facility, payable monthly in
arrears.
Letter of Credit Fees Three and one-half percent (3.50%) per
(for the Financing annum of the face amount of each
Facilities): letter of credit issued under the DIP
Facility and four percent (4.00%) per
annum of the face amount of each
letter of credit issued under the
Emergence Facility, in each case,
payable monthly in advance, plus the
customary charges imposed by the
letter of credit issuing bank.
A-6
Field Examination Without limiting the foregoing,
Fee (for the Borrowers would be required to pay (a)
Financing Facilities): a fee of $850 per day, per analyst,
plus out-of-pocket expenses, for each
financial audit of Borrowers performed
by personnel employed by Foothill, and
(b) the actual charges paid or
incurred by Foothill if it elects to
employ the services of one or more
third parties to perform financial
audits of Borrowers, to appraise
Borrowers' collateral, or to assess
Borrowers' business valuation.
Borrowers shall also pay all applicable fees set forth in one
or more of the fee letters of even date herewith
(collectively, the "Fee Letters").
USE OF PROCEEDS: DIP Facility: To refinance a certain amount of Amerco's
existing $205 million revolving credit facility and fund
working capital in the ordinary course of business (including
for the fees and transaction costs in connection with the DIP
Facility and for the payment of such pre-petition claims as
may be permitted by the Court pursuant to "first day" orders
or other pre-petition claims permitted under the DIP Facility)
with agreed limitations on use of proceeds to fund or
capitalize non-debtor entities affiliated with Borrowers and
Guarantors.
Emergence Facility: To refinance the DIP Facility, fund
Borrowers' confirmed Plan and for general corporate purposes
including the financing of working capital and capital
expenditures.
CONDITIONS Financing under DIP Facility:
PRECEDENT:
The obligation of Foothill to make any loans in connection
with the DIP Facility will be subject to customary conditions
precedent including, without limitation, the following:
(a) Execution and delivery of appropriate legal
documentation in form and substance satisfactory to
Foothill and the satisfaction of the conditions
precedent contained therein.
(b) Amerco Real Estate Company shall have become a
debtor-in-possession under the Chapter 11 Cases
A-7
(c) No material adverse change in the business
operations, assets, financial condition or prospects
of Borrowers and Guarantors ("Material Adverse
Change") other than the filing of the Chapter 11
Cases and the events resulting from the filing of the
Chapter 11 Cases, as determined by Foothill in its
sole discretion.
(d) Entry of the Final Order in the Chapter 11 Cases,
reasonably satisfactory in form and substance to
Foothill, which Final Order (i) shall approve the
transactions contemplated herein, grant the super
priority administrative expense claim status and
senior liens referred to above, (ii) shall not have
been reversed, modified, amended, stayed or vacated,
and (iii) shall have been entered no later than July
31, 2003.
(e) Foothill shall have been granted a deemed perfected,
first priority senior lien on all Collateral, as
defined earlier. Foothill shall have received real
estate UCC, tax and judgment lien searches and other
appropriate evidence, confirming the absence of any
liens on the Collateral, except existing liens
acceptable to Foothill. Foothill acknowledges that it
has already reviewed real estate title reports on
over 95% of Borrowers' properties, have negotiated a
form of title insurance commitment and have reviewed
issued tide insurance commitments on over 350 of
Borrowers' properties.
(f) Opinions from the Loan Parties' counsel as to such
matters as Foothill and its counsel may reasonably
request.
(g) Insurance satisfactory to Foothill, such insurance to
include liability insurance for which Foothill, will
be named as an additional insured and property
insurance with respect to the Collateral for which
Foothill will be named as loss payee.
(h) Foothill's completion of and satisfaction in all
respects with the results of its ongoing due
diligence investigation of the business, assets,
operations, properties (including compliance with
FIRREA), condition (financial or otherwise),
contingent liabilities, prospects and material
agreements of Borrowers and their respective
Subsidiaries.
A-8
(i) Borrowers shall have paid to Foothill all fees and
expenses, including all appraisal fees and expenses,
then owing to Foothill.
(j) Receipt of the Budget as provided to the Bankruptcy
Court.
(k) Borrowers shall, at loan closing, have a minimum of
$40,000,000 in the aggregate of unrestricted cash and
available but unused credit availability (defined as
the difference between (i) the lesser of the (X) the
Borrowing Base or (Y) $300,000,000 and (ii) the sum
of the loans and LC's outstanding) under the DIP
Facility.
(l) Satisfying any conditions precedent in the Commitment
Letter.
Emergence Facility:
The obligation of Foothill to make any loans or assist in the
issuance of any letters of credit in connection with the
$6,50,000,000 Emergence Facility will be subject to customary
conditions precedent including, without limitation, the
following:
(a) Foothill shall have closed the DIP Facility with
Borrowers as provided herein.
(b) Receipt of evidence of the entry of a final Order
confirming Borrowers' Plan and accompanying
disclosure statement, and satisfaction of all other
conditions to the confirmation of such Plan, which
Plan, disclosure statement, and confirmation Order
shall be in form and substance reasonably acceptable
to Foothill and which Plan will include, among
things, a level of assets both in number and value,
acceptable to Foothill.
(c) Receipt of management's projections and business plan
for the succeeding twelve (12) month period on a
month-by-month basis and the succeeding four year
period on an annual basis in form and substance
acceptable to Foothill.
(d) Payment of all reasonable fees and expenses owing to
Foothill in connection with the Emergence Facility.
A-9
(e) Execution and delivery of appropriate legal
documentation in form and substance satisfactory to
Foothill and the satisfaction of the conditions
precedent contained therein and delivery of all
appropriate opinions of counsel relating thereto,
reasonably satisfactory in all respects to Foothill.
{f) Payment in full of obligations owing and amounts
outstanding under the DIP Facility.
A-10
(g) Foothill shall have been granted a perfected, first
priority lien on all Collateral including without
limitation mortgages on all owned real property in
form and substance satisfactory to Foothill. Foothill
shall have received real estate, UCC, tax and
judgment lien searches and other appropriate
evidence, confirming the absence of any liens on the
Collateral, except existing liens acceptable to
Foothill.
(h) No default or event of default shall exist under the
loan documents for the DIP Facility or the Emergence
Facility, and no pending claim, investigation or
litigation by any governmental entity shall exist
with respect to the Loan Parties or the transactions
contemplated hereby.
(i) The absence of (i) a Material Adverse Change in the
business operations, assets, condition (financial or
otherwise) or prospects of Borrowers and Guarantors
since March 31, 2002, as determined by Foothill in
its sole discretion, other than (x) the filing of the
Chapter 11 Cases and the events resulting from the
filing of the Chapter 11 Cases, (y) the withdrawal by
PriceWaterhouseCoopers of its audit letter with
respect to the Borrowers' financial statements for
the fiscal year ended as of March 31, 2002, and (z)
such other matters as have been disclosed in writing
by Borrowers to Foothill on or before June 20, 2003
or (ii) an adverse change or disruption in the loan
syndication, financial, banking or capital markets
generally that, in Foothill's judgment, could
materially impair the syndication of the Emergence
Facility.
(j) Foothill's commencement and completion of, and
satisfaction in all respects with, the results of its
ongoing due diligence investigation of the business,
assets, operations, properties, condition (financial
or otherwise), contingent liabilities, prospects and
material agreements of Borrowers and their respective
Subsidiaries.
A-11
REPRESENTATIONS Usual representations and warranties, including, but not
AND WARRANTIES: limited to, corporate existence and good standing, permits and
licenses, authority to enter into the respective loan
documents, occurrence of the closing date for the respective
Financing Facilities, validity of the Final Order,
governmental approvals, non-violation of other agreements,
financial statements, litigation, compliance with
environmental, pension and other laws, taxes, insurance,
absence of Material Adverse Change, absence of default or
unmatured default and priority of Foothill's liens.
COVENANTS: With respect to the DIP Facility, Borrowers will be required
to maintain agreed upon minimum levels of EBITDA, EBITDAR and
fixed charge coverage ratios. With respect to the Emergence
Facility, Borrowers will be required to maintain agreed upon
minimum levels of EBITDA, EBITDAR, leverage and fixed charge
coverage ratios. All such covenants will be not less than 80%
of Borrowers' projected operating performance. Borrowers will
also have a limitation on capital expenditures (to be
determined). All such financial covenants shall be tested
quarterly. Financial reporting shall include, without
limitation, the delivery to Agent of monthly financial
statements, audited annual financial statements and annual
updated projections and any financial and other reporting
material filed in the Bankruptcy Cases or shared with any
Committees appointed in the Bankruptcy Cases.
Other customary covenants (both positive and negative),
including, but not limited to, notices of litigation, defaults
and unmatured defaults and other information (including
pleadings, motions, applications and other documents filed
with the Bankruptcy Court or distributed to any official
committee appointed in the Chapter 11 Cases), compliance with
laws, permits and licenses, inspection of properties, books
and records, maintenance of insurance, limitations with
respect to liens and encumbrances, dividends, retirement of
capital stock and repurchases of subordinated debt (except for
certain repurchases to be agreed upon based on performance
ratios and liquidity at levels to be determined at the time of
the proposed repurchase), guarantees, sale and lease back
transactions, consolidations and mergers, investments, capital
expenditures, loans and advances, indebtedness, compliance
with pension, environmental and other laws, operating leases,
transactions with affiliates and prepayment of other
indebtedness.
CASH MANAGEMENT: Borrowers shall institute a cash management system
satisfactory to Agent, including without limitation,
establishing one or more concentration accounts at financial
institutions acceptable to
A-12
Agent.
EVENTS OF Usual events of default, including, but not limited to,
DEFAULT: payment, cross-default, violation of covenants, breach of
representations or warranties, judgments, ERISA,
environmental, change of control and other events of default
which are customary in facilities of this nature.
In addition, an Event of Default shall occur if: (i) (A) any
of the Chapter 11 Cases shall be dismissed or converted to a
chapter 7 case, a chapter 11 trustee or an examiner with
enlarged powers shall be appointed in any of the cases, any
other superpriority administrative expense claim which is
senior to or pari passu with Foothill's claims shall be
granted and the Final Order shall be stayed, amended,
modified, reversed or vacated; (B) a Plan shall be confirmed
in any of the Chapter 11 Cases which does not provide for
termination of the commitment under the DIP Facility and
payment in full in cash of the Loan Parties' obligations
thereunder on the effective date of the Plan; or an order
shall be entered which dismisses any of the Loan Parties'
Chapter 11 Cases and which order does not provide for
termination of the Financing Facility then outstanding and
payment in full in cash of all obligations thereunder; (C) the
Loan Parties shall take any action, including the filing of an
application, in support of any of the foregoing or any person
other than the Loan Parties shall do so and such application
is not contested in good faith by the Loan Parties and the
relief requested is granted in an order that is not stayed
pending appeal; (ii) the Bankruptcy Court shall enter an order
granting relief from the automatic stay to the holder of any
security interest in any asset of the Loan Parties having a
book value in an amount equal to or exceeding an amount to be
agreed upon; and (iii) such other similar Events of Default as
are usual and customary in DIP credit facilities.
GOVERNING LAW: All documentation in connection with the Financing
Facilities shall be governed by the laws of the State of New
York applicable to agreements made and performed in such State
except as governed by the Bankruptcy Code.
ASSIGNMENTS AND Foothill shall be permitted to assign its rights and
PARTICIPATIONS: obligations hereunder, or any part thereof, to any person or
entity without the consent of the Loan Parties. Foothill shall
be permitted to grant participations in such rights and
obligations, or any part thereof, to any person or entity
without the consent of the Loan Parties.
A-13
EXPENSES: The Loan Parties shall pay on demand all fees and expenses of
Foothill (including legal fees, financial consultant fees (if
any), audit fees, search fees, filing fees, and documentation
fees, and expenses in excess of the Deposit), incurred in
connection with the transactions contemplated by this Term
Sheet, whether or not such transactions close.
SYNDICATION: Foothill shall underwrite the DIP Facility and syndicate to
other qualified financial institutions and, to the extent set
forth in the Commitment Letter, Foothill shall underwrite the
Emergence Facility and syndicate to other qualified financial
institutions.
A-14
EXHIBIT D
RESTRUCTURING AGREEMENT (REVOLVER LENDERS)
[SEE ATTACHED]
AMERCO-REVOLVER LENDERS RESTRUCTURING AGREEMENT
This AMERCO-Revolver Lenders Restructuring Agreement (this "Agreement")
is made and entered into as of September 8, 2003, by AMERCO, a Nevada
corporation ("AMERCO"), JPMorgan Chase Bank, as Administrative Agent under the
Credit Agreement described below (the "Administrative Agent"), and the lenders
under the Credit Agreement described below (the "Revolver Lenders"). AMERCO, the
Administrative Agent and the Revolver Lenders are collectively referred to
herein as the "Parties" and individually as a "Party."
RECITALS
WHEREAS, AMERCO, the Administrative Agent and the Revolver Lenders have
engaged in good faith negotiations with the objective of reaching an agreement
with regard to the restructuring of the indebtedness of AMERCO under that
certain 3-Year Credit Agreement dated as of June 28, 2002 (as amended to date,
the "Credit Agreement"), among AMERCO, the Revolver Lenders and JPMorgan Chase
Bank, as Administrative Agent for the Revolver Lenders, and the recapitalization
of AMERCO and its subsidiaries.
WHEREAS, on June 20, 2003, AMERCO filed for relief under Chapter 11 of
Title 11 of the United States Code, 11 U.S.C. Sections 101, et. seq. (the
"Bankruptcy Code"), which case is pending before the United States Bankruptcy
Court for the District of Nevada (the "Bankruptcy Court") and on August 13,
2003, AMERCO Real Estate Company ("AREC") filed for relief under Chapter 11 of
the Bankruptcy Code, which case is also pending before the Bankruptcy Court.
WHEREAS, AMERCO, the Administrative Agent and the Revolver Lenders
desire to implement the financial restructuring consistent with this Agreement
and the term sheet attached hereto as Exhibit A (the "Term Sheet," and the
restructuring and recapitalization contemplated therein, the "Financial
Restructuring").
WHEREAS, in order to implement the Financial Restructuring, AMERCO
intends, subject to the terms and conditions of this Agreement and the Term
Sheet, to prepare a plan of reorganization (the "Plan") and a disclosure
statement (the "Disclosure Statement")(1) consistent with the terms set forth in
this Agreement and the Term Sheet, to file and seek approval of such Disclosure
Statement, to solicit acceptances of such Plan, and to seek confirmation of such
Plan in its administratively consolidated Chapter 11 cases, as expeditiously as
possible under the Bankruptcy Code and the Federal Rules of Bankruptcy Procedure
(the "Bankruptcy Rules").
WHEREAS, the Administrative Agent and each consenting Lender
(collectively, the "Consenting Parties") owns or controls the aggregate
principal amount of revolving loans under the Credit Agreement ("Existing
Loans"), in each case as identified on the signature pages hereto.
WHEREAS, in order to facilitate and expedite the implementation of the
Financial Restructuring, the Administrative Agent and the Consenting Parties are
prepared, subject to the terms and conditions of this Agreement, to vote their
Claims (as that term is defined in the Bankruptcy Code) to accept the Plan.
- -----------------------
(1) For purposes of this Agreement, the terms "Plan" and "Disclosure Statement"
shall mean a Plan and Disclosure Statement consistent with the terms set forth
in this Agreement and the Term Sheet.
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows:
1. Recitals. Each of the foregoing Recitals is incorporated
hereby as if fully set forth herein.
2. Voting in Favor of the Plan. Each Consenting Party agrees to
timely vote its claim under the Credit Agreement to accept the Plan and not to
revoke or withdraw such vote. The Parties understand that the Plan and all
related documents will contain customary provisions for transactions of the
nature set forth herein and in the Term Sheet. Each Consenting Party to this
Agreement agrees not to elect on its ballot for its Credit Agreement Claim to
preserve any rights, if any, that such Party may have that may be affected by
the releases provided for under the Plan.
3. Restrictions on Transfer. Each Consenting Party hereby agrees,
so long as this Agreement remains in effect, not to (i) sell, transfer, assign,
pledge, or otherwise dispose of any of its Existing Loans, in whole or in part,
or any interest therein, unless the transferee accepts such claims subject to
the terms of this Agreement, or (ii) grant any proxies, deposit any of its
Existing Loans into a voting trust, or enter into a voting agreement with
respect to any of the Existing Loans unless such arrangement provides for
compliance herewith. In the event that a Consenting Party transfers such
Existing Loans prior to the last date for voting on the Plan, such transferee
shall comply with and be subject to all the terms of this Agreement as long as
such Agreement remains in effect, including, but not limited to, such Consenting
Party's obligations to vote its Existing Loans in favor of the Plan and shall,
as a condition precedent to such transfer, execute an agreement on terms
substantially identical to the terms of this Agreement and, upon commencement of
the solicitation of votes to accept or reject the Plan, a ballot for the
Existing Loan indicating its acceptance of the Plan.
4. AMERCO Agreements. During the term of this Agreement, AMERCO
hereby agrees to the following:
(a) AMERCO shall use its commercially reasonable efforts
to have the Disclosure Statement approved by the Bankruptcy Court, and
to use its commercially reasonable efforts to obtain an order of the
Bankruptcy Court confirming the Plan, in each case as expeditiously as
possible under the Bankruptcy Code and the Bankruptcy Rules and
consistent with the terms and conditions set forth in this Agreement
and in the Term Sheet.
(b) AMERCO shall use its commercially reasonable efforts
to obtain approval by the Bankruptcy Court of the $300,000,000
debtor-in-possession financing facility (the "DIP Facility") based on
the Term Sheet (the "Foothill Term Sheet") provided to AMERCO by Wells
Fargo-Foothill, Inc., as lead arranger, collateral agent, syndication
agent and administrative agent ("Foothill"), and an emergence facility
of approximately $650,000,000 also to be provided by Foothill on the
confirmation and consummation of the Plan (the "Emergence Facility").
Notwithstanding the references in this Agreement or the Term Sheet to
Foothill and the Foothill Term Sheet, AMERCO may select an alternative
2
senior lender or lenders to provide the DIP Facility or the Emergence
Facility under terms substantially similar to the Foothill Term Sheet.
5. Support of the Plan. As long as this Agreement remains in
effect, AMERCO and each Consenting Party (acting only in its capacity as the
holder of an Existing Loan) will: (i) use its commercially reasonable efforts to
obtain confirmation of the Plan in accordance with the Bankruptcy Code as
expeditiously as possible; and (ii) take all commercially reasonable, necessary
and appropriate actions to achieve confirmation including communicating the
Consenting Holders' support of the Plan to the holders of allowed impaired
claims. As long as this Agreement remains in effect, no Consenting Party, acting
in its capacity as a holder of an Existing Loan, shall (a) object to
confirmation of the Plan or otherwise commence any proceeding to oppose or alter
the Plan or any other reorganization related documents or agreements (the "Plan
Documents"), which shall include, but not be limited to, any documents or
agreements related to the DIP Facility and the Emergence Facility, to the extent
such documents, in the reasonable judgment of the Consenting Parties,
substantially conform to the terms of the Foothill Term Sheet, (b) vote for,
consent to, support or participate in the formulation of any other plan of
reorganization or liquidation proposed or filed or to be proposed or filed in
any Chapter 11 or Chapter 7 case commenced in respect of AMERCO, (c) directly or
indirectly seek, solicit, support or encourage any other plan, sale, proposal or
offer of dissolution, winding up, liquidation, reorganization, merger or
restructuring of AMERCO or any of its subsidiaries that could reasonably be
expected to materially prevent, delay or impede the successful restructuring of
AMERCO as contemplated by the Plan or the Plan Documents, (d) object to the
Disclosure Statement or the solicitation of consents to the Plan, or (e) take
any other action that is inconsistent with, or that would materially delay
confirmation of, the Plan.
6. Acknowledgment. This Agreement is not, and shall not be deemed
to be, a solicitation for consents to the Plan. The acceptances of the
Consenting Parties will not be solicited until such Parties have received the
Disclosure Statement approved by order of the Bankruptcy Court as continuing
"adequate information," as such term is defined in Section 1125(a)(l) and (2)
the Bankruptcy Code, the Plan and related ballot.
7. Disclaimer. The Parties agree that a copy of this Agreement
shall be filed with the Bankruptcy Court.
8. Termination of Agreement.
(a) Upon the effectiveness of this Agreement in
accordance with Section 23, the obligations of AMERCO, the Consenting
Parties and the Administrative Agent hereunder shall remain effective
and binding until the "Effective Date" (as defined in the Term Sheet)
of the Plan unless terminated earlier pursuant to this Section 8.
(b) If any of the following occurs, one or more Revolver
Lenders whose claims in respect of the Existing Loans equal or exceed
two-thirds in amount of the total of the Existing Loans, may provide
written notice to AMERCO of the termination of this Agreement, and upon
the receipt of such notice by AMERCO, the obligations of the Parties
hereunder shall immediately and automatically terminate and shall be of
no further force or effect, which notice may be given by any such
Revolver Lenders:
3
(1) the Plan or any Plan Document
provides for or is modified to provide for treatment of the Existing
Loans that is different in any material adverse respect from the
treatment described in the Term Sheet;
(2) the Plan or any Plan Document
provides or is modified to provide for the treatment of the Senior
Notes, Series A, due April 30, 2012 and Senior Notes, Series B, due
April 30, 2007 (collectively, the "Notes"), issued by AREC, under that
certain Note Purchase Agreement dated March 15, 2002, that is different
in any material adverse respect from the treatment described in that
certain Restructuring Agreement dated as of August 12, 2003, among the
holders of the Notes and AREC, a copy of which has been filed with the
Bankruptcy Court.
(3) AMERCO or AREC pays to the
Indenture Trustee on behalf of the holders of the Notes any cash from
the DIP Facility.
(4) AMERCO fails to file the Plan and
Disclosure Statement on or before October 15, 2003;
(5) the Disclosure Statement is not
approved on or before December 15, 2003;
(6) the Plan is not confirmed on or
before February 27, 2004;
(7) the Plan is not consummated on or
before March 15, 2004;
(8) the Bankruptcy Court does not
approve the Emergence Facility as part of the confirmation and
consummation of the Plan;
(9) the revolving credit facility
exceeds $200,000,000 in face amount, and the "Term Loan A Notes" (as
such term is defined in the attached Term Sheet) exceeds $350,000,000
in face amount;
(10) the 'Term Loan B Notes" (as such
term is defined in the attached Term Sheet), exceeds $200,000,000 in
face amount;
(11) the Bankruptcy Court denies
confirmation of the Plan;
(12) the Chapter 11 case of AMERCO or
AREC is converted to a case under Chapter 7 of the Bankruptcy Code or a
trustee is appointed under any chapter of the Bankruptcy Code or an
examiner with expanded powers to operate the business is appointed for
AMERCO or AREC;
(13) any written representation or
warranty made by AMERCO or AREC to the Administrative Agent or the
Revolver Lenders in this Agreement or the Term Sheet (including without
limitation, representations relating to AMERCO's or AREC's current or
future financial performance or AMERCO's FY2003 Form 10-K) is false or
intentionally misleading in any material respect when made;
4
(14) a default occurs under the DIP
Facility and is not waived by the lenders under the DIP Facility within
fifteen business days after such lenders become aware of such default;
(15) there is a material breach of any
provision of this Agreement;
(16) the Bankruptcy Court finds or holds
unenforceable this Agreement, the Term Sheet, or any material provision
hereof or thereof;
(17) the estates of AMERCO and any other
entity, including, without limitation, AREC, are substantively
consolidated, other than through the Plan;
(18) a voluntary or involuntary
bankruptcy, receivership, or assignment for the benefit of creditors
proceeding is commenced by or against U-Haul International, Inc. or any
other material subsidiary of AMERCO or AREC, other than as part of the
implementation of the Plan; or
(19) a "Termination Event" occurs under
the "Final Order Authorizing Consensual Use Of Cash Collateral And
Granting Adequate Protection," entered August 14, 2003, in the AMERCO
Chapter 11 case (the "Cash Collateral Order") (other than the
Termination Event set forth in paragraph 11(b) of such Order).
(c) Except as set forth in Section 8(d), no Party shall
have any liability to the other or any other person as a result of the
termination of such Party's obligations hereunder in accordance with
this Section 8.
(d) If this Agreement is found to be unenforceable by the
Bankruptcy Court or if AMERCO materially breaches its obligations under
this Agreement or the Term Sheet, each of the Administrative Agent, the
Revolver Lenders and AMERCO hereby agrees that the Revolver Lenders
shall be entitled to receive accrued and unpaid default interest on the
principal amount owed to the Revolver Lenders as set forth in the
Credit Agreement and related documents, from the effectiveness of this
Agreement up to the confirmation and consummation of a plan of
reorganization in the Chapter 11 Case and AMERCO shall not object to
such claim being an allowed claim in the Chapter 11 Case.
9. Good Faith Negotiation of Documents. Each Party hereby further
covenants and agrees to negotiate the definitive documents relating to the Plan
Documents, in good faith, and in any event, in all material respects consistent
with the Term Sheet.
10. Forbearance. As long as this Agreement shall remain in effect,
each Consenting Party hereby severally agrees to forbear (and where necessary
cause the forbearance, including by giving all necessary instructions to the
Administrative Agent in accordance with the Credit Agreement) from exercising
any rights or remedies it may have under the Credit Agreement and all related
documents, applicable law, or otherwise with respect to any default with respect
to the Existing Loans or the Credit Agreement, whether presently existing or
hereafter arising.
5
11. Representations and Warranties. Each Consenting Party (and
with respect to sections (a)-(e), AMERCO) represents and warrants that the
following statements are true, correct and complete as of the date hereof:
(a) Corporate Power and Authority. It is duly organized,
validly existing, and in good standing under the laws of the state of
its organization, and has all requisite corporate, partnership or
limited liability company power and authority to enter into this
Agreement and to carry out the transactions contemplated by, and
perform its respective obligations under, this Agreement.
(b) Authorization. The execution and delivery of this
Agreement and the performance of its obligations hereunder have been
duly authorized by all necessary corporate, partnership or limited
liability company action on its part.
(c) No Conflicts. The execution, delivery and performance
by it of this Agreement do not and shall not (i) violate any provision
of law, rule or regulation applicable to it or any of its subsidiaries
or its certificate of incorporation or bylaws or other organizational
documents or those of any of its subsidiaries or (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of
time or both) a default under any material contractual obligation to
which it or any of its subsidiaries is a party.
(d) Governmental Consents. The execution, delivery and
performance by it of this Agreement do not and shall not require any
registration or filing with consent or approval of, or notice to, or
other action to, with or by, any federal, state or other governmental
authority or regulatory body, other than the approval of the Bankruptcy
Court, in the case of AMERCO.
(e) Binding Obligation. Subject to the provisions of
Sections 1125 and 1126 of the Bankruptcy Code, this Agreement is the
legally valid and binding obligation of AMERCO, enforceable against it
in accordance with its terms.
(f) Owner of Claims. As of the date hereof, the
Consenting Parties are the beneficial owners of, or holders of
investment authority over, the Existing Loans that each Consenting
Party has agreed to vote in favor of the Plan.
(g) Acknowledgment of Risks. Each Consenting Party has
received and reviewed this Agreement and all schedules and exhibits
hereto and has received all such information as it deems necessary and
appropriate to enable it to evaluate whether to become a Consenting
Party.
12. Further Acquisition of Claims. This Agreement shall in no way
be construed to preclude any of the Revolver Lenders or the Administrative Agent
from acquiring additional Existing Loans. However, any such additional Existing
Loans so acquired shall automatically be deemed to be subject to the terms of
this Agreement.
13. Amendments. This Agreement may not be modified, amended or
supplemented without the prior written consent of AMERCO, the Administrative
Agent and the Revolver
6
Lenders whose claims in respect of the Existing Loans equal or exceed two-thirds
in amount of the total of the Existing Loans.
14. Governing Law; Jurisdiction. This Agreement shall be governed
by and construed in accordance with the internal laws of the State of New York,
without regard to any conflicts of law provision which would require the
application of the law of any other jurisdiction. By its execution and delivery
of this Agreement, each of the Parties hereto hereby irrevocably and
unconditionally agrees for itself that any legal action, suit or proceeding
against it with respect to any matter under or arising out of or in connection
with this Agreement or for recognition or enforcement of any judgment rendered
in any such action, suit or proceeding, may be brought in the United States
District Court for the District of Nevada. By execution and delivery of this
Agreement, each of the Parties hereto irrevocably accepts and submits itself to
the nonexclusive jurisdiction of such court, generally and unconditionally, with
respect to any such action, suit or proceeding. Notwithstanding the foregoing
consent to Nevada jurisdiction, each of the Parties hereto hereby agrees that
the Bankruptcy Court shall have exclusive jurisdiction of all matters arising
out of or in connection with this Agreement.
15. Specific Performance. It is understood and agreed by each of
the Parties hereto that money damages would not be a sufficient remedy for any
breach of this Agreement by any Party and each non-breaching Party shall be
entitled to specific performance and injunctive or other equitable relief as a
remedy of any such breach.
16. Headings. The headings of the sections, paragraphs and
subsections of this Agreement are inserted for convenience only and shall not
affect the interpretation hereof.
17. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of the Parties and their respective successors, assigns,
heirs, executors, administrators and representatives.
18. Prior Negotiations. This Agreement and the Term Sheet
supersede all prior negotiations with respect to the subject matter hereof.
19. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same Agreement. Delivery of an executed counterpart of
this Agreement by facsimile shall be equally as effective as delivery of the
original executed counterpart of this Agreement.
20. No Third-Party Beneficiaries. Unless expressly stated herein,
this Agreement shall be solely for the benefit of the Parties hereto and no
other person or entity shall be a third-party beneficiary hereof, other than
successors and assigns of any Party.
21. Consideration. It is hereby acknowledged by the Parties hereto
that no consideration shall be due or paid to the Administrative Agent or any
Lender for its agreement to vote to accept the Plan in accordance with the terms
and conditions of this Agreement.
22. Notices. (a) All notices hereunder to be served to AMERCO
shall be deemed given if in writing and delivered or sent by telecopy, courier
or by registered or certified mail
7
(return receipt requested) to the following addresses or telecopier numbers (or
at such other addresses or telecopier numbers as shall be specified by like
notice):
AMERCO
2727 North Central Avenue
Suite 500
Phoenix, Arizona 85004
Attn: Robert Peterson
Fax: 602-277-4879
with copy to:
SQUIRE, SANDERS & DEMPSEY L.L.P.
40 N. Central Avenue, Suite 2700
Phoenix, AZ 85004
Attn: Craig D. Hansen, Esq.
Fax: 602-253-8129
(b) All notices hereunder to be served to a
Consenting Party shall be deemed given if in writing and delivered or
sent by telecopy, courier or by registered or certified mail (return
receipt requested) to the address or telecopier number for such
Consenting Party set forth above its signature hereto (or at such other
addresses or telecopier numbers as shall be specified by like notice),
with a copy to:
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
300 South Grand Avenue, 34th Floor
Los Angeles, CA 90071
Attn: Richard Levin, Esq.
Fax: 213-687-5600
23. Effectiveness. This Agreement shall become effective when
AMERCO has received counterparts of this Agreement duly executed and delivered
by AMERCO, the Administrative Agent and Revolver Lenders holding at least
two-thirds in principal in amount of the Existing Loans; provided that such
condition of effectiveness may be waived by the written consent of each of
AMERCO and the Consenting Parties.
24. Cash Collateral Order Unaffected. Nothing in this Agreement
supercedes any provision in the Cash Collateral Order or is intended to
constitute a consent by any Consenting Party beyond the consents under the Cash
Collateral Order.
[Signature page follows]
8
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered by its duly authorized officer as of the
date first above written.
AMERCO
By : /s/ Robert T. Peterson
-----------------------------
Name: Robert T. Peterson
Title: Assistant Treasurer
[Additional signature pages follow]
9
JPMORGAN CHASE BANK,
AS ADMINISTRATIVE AGENT
BY: /s/ John P. McDonagh
--------------------
Name: John P. McDonagh
Title: Managing Director
10
REVOLVER LENDERS: JPMORGAN CHASE BANK
By: /s/ John P. McDonagh
------------------------
Name: John P. McDonagh
Title: Managing Director
Principal Amount of Loans Owned or
Controlled: $ 25,000,000,00
11
REVOLVER LENDERS: SPS HIGH YIELD LOAN
TRADING
By: /s/ John P. McDonagh
---------------------------
Name: John P. McDonagh
Title: Managing Director
Principal Amount of Loans Owned or
Controlled: $ 15,000,000,00
11
REVOLVER LENDERS: Bank of America NA
By: /s/ [ILLEGIBLE]
---------------------------
Name: [ILLEGIBLE]
Title: [ILLEGIBLE]
Principal Amount of Loans Owned or
Controlled: [ILLEGIBLE]
11
KBC BANK N.V.
By: /s/ [ILLEGIBLE] /s/ ROBERT SNAUFFER
-------------------------------------------
Name [ILLEGIBLE] ROBERT SNAUFFER
Title: VICE PRESIDENT FIRST VICE PRESIDENT
Principal Amount of Loans Owned or
Controlled: $ 10,000,000
11
REVOLVER LENDERS:
LaSalle Bank N.A.
By: /s/ John M. Schuessler
--------------------------
Name: John M. Schuessler
Title: First Vice President
Principal Amount of Loans Owned or
Controlled: $20,000,000.00
11
REVOLVER LENDERS:
U.S. Bank National Association
By: /s/ Daniel E. Falstad
-------------------------
Name: Daniel E. Falstad
Title: Vice President
Principal Amount of Loans Owned or
Controlled: $20,000,000.00
11
REVOLVER LENDERS: WASHINGTON MUTUAL BANK
By: /s/ Bruce Kendrex
-------------------------
Name: BRUCE KENDREX
Title: VICE PRESIDENT
Principal Amount of Loans Owned or
Controlled: $20,000,000.00
11
REVOLVER LENDERS:
[ILLEGIBLE]
By: /s/ [ILLEGIBLE]
-------------------------
Name: [ILLEGIBLE]
Title: SENIOR VICE PRESIDENT
Principal Amount of Loans Owned or
Controlled: $20,000,000
11
EXHIBIT A
AMERCO REVOLVER LENDERS
TERM SHEET
This Term Sheet describes the principal terms of the proposed
restructuring and recapitalization of certain of the outstanding indebtedness of
AMERCO, a Nevada corporation ("AMERCO"), pursuant to a plan of reorganization
(the "Plan") in accordance with (a) Chapter 11 of Title 11 of the United States
Code (the "Bankruptcy Code") and (b) the terms and conditions contained herein.
This Term Sheet has been produced for discussion and settlement purposes only
and is not an offer with respect to any securities or a solicitation of
acceptances of the Plan.
CERTAIN DEFINITIONS
"AREC" means Amerco Real Estate Company.
"Effective Date" means the date the Plan becomes effective in
accordance with its terms and conditions.
"Term Loan A Notes" means the notes to be issued by the
Debtors, as reorganized, jointly and severally, on the Effective Date of the
Plan, in the aggregate face amount not to exceed $350,000,000.
"Term Loan B Notes" means the notes to be issued by the
Debtors, as reorganized, jointly and severally, on the Effective Date of the
Plan, in the aggregate face amount not to exceed $200,000,000.
"Debtor or Debtors" means, collectively, AMERCO, AREC and any
other affiliates or subsidiaries of AMERCO or AREC that file voluntary petitions
for relief under Chapter 11 of the Bankruptcy Code, other than PAC Fourteen,
Inc. and PAC Fifteen, Inc.
"New Notes" means, collectively, the Term Loan A Notes and the
Term Loan B Notes.
"Noteholders" means the holders of the Notes.
CAPITALIZED TERMS USED HEREIN AND NOT OTHERWISE DEFINED SHALL HAVE THE
RESPECTIVE MEANINGS ASCRIBED TO THEM IN THE AMERCO-REVOLVER LENDERS
RESTRUCTURING AGREEMENT BY AND AMONG AMERCO, THE ADMINISTRATIVE AGENT AND THE
REVOLVER LENDERS SIGNATORY THERETO (THE "RESTRUCTURING AGREEMENT").
A-1
TREATMENT OF REVOLVER LENDERS
CLASSIFICATION: The Plan will place the claims of the
Revolver Lenders under the Credit Agreement
in a single class or subclass, and such
class or subclass will be impaired and
entitled to vote on the Plan.
CASH DISTRIBUTIONS FROM DIP Upon execution of the Restructuring
FACILITY: Agreement, the Revolver Lenders will receive
a cash distribution of $51,250,000 (25% of
the principal amount of the Existing Loans).
CASH DISTRIBUTIONS ON On the Effective Date of the Plan, the
EFFECTIVE DATE: Revolver Lenders will receive an additional
cash distribution of $71,750,000 (35% of the
principal amount of the Existing Loans),
plus additional cash in the amount of any
and all accrued but unpaid interest on the
Existing Loans up to the Effective Date,
payable at the non-default rate.
NEW NOTES: $48,400,000 (23.6% of the principal amount
of the Existing Loans) exchanged for and
satisfied with Term Loan A Notes under the
Emergence Facility in the amount (net after
any discount) of $48,400,000, subject to the
Syndication Terms set forth in this Term
Sheet.
$33,600,000 (16.4% of the principal amount
of the Existing Loans) exchanged for and
satisfied with Term Loan B Notes under the
Emergence Facility having an aggregate
Market Value (as defined below) of
$33,600,000, subject to the Syndication
Terms set forth in this Term Sheet.
TERMS OF NEW NOTES: As the new notes are to be issued under the
Emergence Facility, the new notes (under
both Term Loan A and Term Loan B) will be
identical to the notes issued under the
Emergence Facility and will be issued under
the same credit agreement, note purchase
agreement, or comparable governing document,
and will be governed by and entitled to all
of the same benefits and terms as the Term
Loan A Notes and Term Loan B Notes,
including borrowers, guarantors, maturity
date, early termination provisions,
collateral, lien priority, interest rate,
fees, and all other terms of the Foothill
Term Sheet, subject to the qualification
that the maturity of the New Notes may not
exceed 5 years from date of issuance;
A-2
FEES: On the Effective Date, the Revolver Lenders
will receive 2% of the par amount of Term
Loan B Notes actually issued to the Revolver
Lenders, in addition to any fees provided
under the Foothill Term Sheet generally to
buyers of any of the Term Loan A or Term
Loan B Notes
CLOSING CONDITIONS - Term Loan A and Term Loan B shall be
subject to conditions precedent
substantially similar to those set forth in
the Foothill Term Sheet.
- Treatment in the Chapter 11 case of the
Noteholders will be substantially as set
forth in that certain Restructuring
Agreement dated as of August 12, 2003, among
the Noteholders and AREC (the "Noteholders
Restructuring Agreement").
- Treatment in the Chapter 11 case of
AMERCO's general unsecured claims will
provide for cash not in excess of 35% of
their allowed general unsecured claims, with
the balance thereof to be satisfied through
a combination of Term Loan B Notes and other
securities with a priority position junior
to the Term Loan B Notes in the collateral
securing the Term Loan B Notes.
RELEASE AND EXCULPATION The Plan will contain release and
PROVISIONS: exculpation provisions in substantially the
following form:
1. As of the Effective Date, the Debtors and
reorganized Debtors will be deemed to
forever release, waive and discharge all
claims, obligations, suits, judgments,
damages, demands, debts, rights, causes of
action and liabilities whatsoever in
connection with or related to the Debtors,
the Chapter 11 cases or the Plan (other than
the rights of the Debtors or reorganized
Debtors to enforce the Plan and the
contracts, instruments, releases,
indentures, and other agreements or
documents delivered thereunder) whether
liquidated or unliquidated, fixed or
contingent, matured or unmatured, known or
unknown, foreseen on unforeseen, then
existing or thereafter arising, in law,
equity or otherwise that are based in whole
or part on any act, omission, transaction,
event or other occurrence taking - place on
or prior to the Effective Date in any way
relating to the Debtors, the reorganized
Debtors, the
A-3
Chapter 11 cases or the Plan, and that may
be asserted by or on behalf of the Debtors
or their estates or the reorganized Debtors
against (a) the directors, officers,
employees, agents and professionals of the
Debtors, (b) the holders of prepetition
lender claims and the agents thereof, (c)
the DIP Facility agent and the holders of
DIP Facility claims, (d) each Noteholder and
Revolver Lender, and (e) the respective
directors, officers, employees, agents and
professionals of the entities released in
subclauses (b) - (d) acting in such
capacity.
2. As of the Effective Date, each
prepetition lender, each Noteholder and
Consenting Party (solely in its capacity as
the holder of an Existing Loan) and each
holder of an impaired claim that
affirmatively elects on the ballot for
voting on the Plan to do so, shall in
consideration for the obligations of the
Debtors and the reorganized Debtors under
the Plan and the securities, contracts,
instruments, releases and other agreements
or documents to be delivered in connection
with the Plan, forever release, waive and
discharge all claims, obligations, suits,
judgments, damages, demands, debts, rights,
causes of action and liabilities (other than
the rights to enforce the Debtors' or the
reorganized Debtors' obligations under the
Plan and the securities, contracts,
instruments, releases and other agreements
and documents delivered thereunder), whether
liquidated or unliquidated, fixed or
contingent, matured or unmatured, known or
unknown, foreseen or unforeseen, then
existing or thereafter arising, in law,
equity or otherwise that are based in whole
or in part on any act, omission,
transaction, event on other occurrence
taking place on or prior to the Effective
Date in any way relating to the Debtors, the
reorganized Debtors, the Chapter 11 cases,
or the Plan against (a) the Debtors and the
reorganized Debtors, (b) the directors,
officers, employees, agents and
professionals of the Debtors, (c) the
holders of prepetition lender claims and the
a gents thereof, (d) the DIP Facility agent
and the holders of DIP Facility claims, (e)
each Noteholder and Revolver Lender, and (f)
the respective directors, officers,
employees, agents and professionals of the
entities released in subclauses (c)-(e)
acting in such capacity.
3. None of the Debtors, the reorganized
Debtors, the
A-4
Noteholders, the Revolver Lenders, holders
of DIP Facility claims, the DIP Facility
agent, the holders of prepetition lender
claims, the agents thereto, nor any of their
respective present or former members,
officers, directors, employees, advisors, or
attorneys shall have or incur any liability
to any holder of a claim or an interest, or
any other party in interest, or any of their
respective agents, employees,
representatives, financial advisors,
attorneys, or affiliates, or any of their
successors or assigns, for any act or
omission in connection with, relating to, or
arising out of, the Chapter 11 cases,
formulating negotiating or implementing the
Plan, the solicitation of acceptances of the
Plan, the pursuit of confirmation of the
Plan, the confirmation of the Plan, the
consummation of the Plan, or the
administration of the Plan or the property
to be distributed under the Plan, except for
their gross negligence or willful
misconduct, and in all respects shall be
entitled to reasonably rely upon the advice
of counsel with respect to their duties and
responsibilities under the Plan.
EMERGENCE FACILITY: On the Effective Date, the Debtors shall
close the Emergence Facility with
substantially the terms and conditions set
forth in the Foothill Term Sheet.
All funded obligations outstanding under the
DIP Facility on the Effective Date shall be
repaid from borrowings under the Emergence
Facility.
SYNDICATION RIGHTS: 1. AMERCO will obtain ratings for the Term
Loan B Notes from either S&P or Moody's
prior to closing.
2. If the Term Loan B Notes are syndicated
as described below, then the "Market Value"
of the Term Loan B Notes shall be the price
(net after any discounts) at which Term Loan
B Notes are purchased in such syndication.
3. AMERCO will use its best efforts to
arrange for the placement of a portion of
the Term Loan B Notes to Market Participants
(as defined below). The proceeds of any
commitments from new Market Participants
above $30 million aggregate face amount of
Term Loan B Notes will be paid initially to
the Revolver Lenders until the total cash
received by the Revolver Lenders equals 65%
of the principal amount of the Existing
Loans, and
A-5
all proceeds thereafter will be paid, on a
pro rata basis, to the Revolver Lenders and
Noteholders, in lieu of an equal amount of
Term Loan B Notes to reduce, on a pro rata
basis, the principal amounts of Term Loan B
Notes to be distributed to the Revolver
Lenders and the Noteholders under the Plan
in accordance with this Restructuring
Agreement and the Noteholders Restructuring
Agreement.
4. In addition to any fees payable to the
Revolver Lenders under "Fees" above, to the
extent the Term Loan B Notes are offered in
a syndication with fees, discounts,
increased spreads or any other additional
compensation not already taken into account
in the determination of Market Value
(whether paid pre-or post-closing of the
Term Loan B Notes, and including any
"pricing flex"), the Revolver Lenders will
fully participate therein, on the same terms
offered or issued to each other holder of
Term Loan B Notes.
5. If less than $20 million of Term Loan B
Notes are sold to Market Participants on the
same terms as are to be issued to the
Revolver Lenders under the Restructuring
Agreement, then the Revolver Lenders will
receive Term Loan A Notes in the amount (net
after any discount) of $33,600,000, instead
of any Term Loan B Notes, and the Revolver
Lenders will not participate in the Term
Loan B Notes.
For purposes of this Term Sheet, "Market
Participants" is defined as recognized
institutional investors not affiliated with
the Debtors or with any "insider" (as that
term is defined in the Bankruptcy Code) of
the Debtors.
REVOLVER LENDER FEES: The reasonable fees and expenses of the
financial and legal professionals retained
by the Administrative Agent or the Revolver
Lenders shall be paid on the Effective Date
of the Plan.
A-6
EXHIBIT E
SAC HOLDING PARTICIPATION AND SUBORDINATION AGREEMENT
[TO BE FILED ON OR BEFORE THE EXHIBIT FILING DATE]
EXHIBIT F
AMERCO/AREC GUARANTY OBLIGATIONS
[SEE ATTACHED]
AMERCO/AREC GUARANTY OBLIGATIONS
LESSOR/OWNER LESSEE DATE FUNDED
- --------------------------------- --------------------------- -----------
BANC ONE LEASING CORPORATION U-HAUL LEASING & SALES CO. 26-Jun-96
GENERAL FOODS CREDIT
CORPORATION AS OWNER
PARTICIPANT U-HAUL LEASING & SALES CO. 28-Jun-96
FLEET NATIONAL BANK AND NOW
KNOWN AS US BANK AS OWNER
TRUSTEE U-HAUL LEASING & SALES CO. 28-Jun-96
FIRST SECURITY BANK, NA
NOW KNOWN AS WELLS FARGO BANK, NA
AS INDENTURE TRUSTEE U-HAUL LEASING & SALES CO. 28-Jun-96
BANCBOSTON LEASING, INC. NOW
KNOWN AS FIRST UNION LEASING
CORPORATION U-HAUL LEASING & SALES CO. 01-Aug-96
WELLS FARGO BANK, NA U-HAUL LEASING & SALES CO. 15-Aug-96
BANCORP LEASING OF HAWAII , INC.
NOW KNOWN AS PACIFIC CENTURY
LEASING, INC. U-HAUL LEASING & SALES CO. 29-Aug-96
USL CAPITAL LEASING NOW KNOWN
AS GENERAL ELECTRIC CAPITAL
CORPORATION U-HAUL LEASING & SALES CO. 30-Aug-96
PNC LEASING CORPORATION U-HAUL LEASING & SALES CO. 12-Sep-96
SAFECO CREDIT COMPANY, INC. NOW
KNOWN AS GENERAL ELECTRIC
CAPITAL CORPORATION U-HAUL LEASING & SALES CO. 26-Sep-96
THE CIT GROUP/EQUIPMENT FINANCE U-HAUL LEASING & SALES CO. 25-Oct-96
BANCBOSTON LEASING, INC. NOW
KNOWN AS NATIONAL CITY LEASING
CORPORATION U-HAUL LEASING & SALES CO. 30-Oct-96
THE CIT GROUP/EQUIPMENT FINANCE U-HAUL LEASING & SALES CO. 28-Apr-97
CARGILL LEASING CORPORATION NOW
KNOWN AS US BANCORP LEASING AND
FINANCIAL U-HAUL LEASING & SALES CO. 12-May-97
CARGILL LEASING CORPORATION NOW
KNOWN AS KREDIETBANK, N.V. U-HAUL LEASING & SALES CO. 12-May-97
CARGILL LEASING CORPORATION NOW
KNOWN AS US BANCORP LEASING AND
FINANCIAL U-HAUL LEASING & SALES CO. 12-May-97
BANC ONE LEASING CORPORATION U-HAUL LEASING & SALES CO. 27-May-97
KEYCORP LEASING LTD. U-HAUL LEASING & SALES CO. 28-May-97
FLEET CAPITAL CORPORATION NOW
KNOWN AS MIZUHO LEASING INC. U-HAUL LEASING & SALES CO. 02-Jun-97
FLEET CAPITAL CORPORATION NOW
KNOWN AS OVERLAND CAPITAL
CORPORATION U-HAUL LEASING & SALES CO. 02-Jun-97
FLEET CAPITAL CORPORATION NOW
KNOWN AS OVERLAND CAPITAL
CORPORATION U-HAUL LEASING & SALES CO. 02-Jun-97
CHASE EQUIPMENT LEASING, INC.
NOW KNOWN AS JP MORGAN LEASING,
INC. U-HAUL LEASING & SALES CO. 27-Jun-97
BB&T LEASING CORPORATION U-HAUL LEASING & SALES CO. 27-Jun-97
BNY CAPITAL RESOURCES
CORPORATION U-HAUL LEASING & SALES CO. 15-Jul-97
SIGNET LEASING AND FINANCIAL NOW
KNOWN AS FIRST UNION COMMERCIAL
CORPORATION U-HAUL LEASING & SALES CO. 23-Jul-97
BANCBOSTON LEASING, INC. NOW
KNOWN AS FLEET CAPITAL
CORPORATION U-HAUL LEASING & SALES CO. 30-Jul-97
BARNETT BUSINESS FINANCE
CORPORATION NOW KNOWN AS BA
LEASING & CAPITAL CORPORATION U-HAUL LEASING & SALES CO. 22-Aug-97
PITNEY BOWES CREDIT CORPORATION
NOW KNOWN AS EASTERN BANK U-HAUL LEASING & SALES CO. 05-Sep-97
FLEET CAPITAL CORPORATION U-HAUL LEASING & SALES CO. 19-Dec-97
BARNETT BUSINESS FINANCE
CORPORATION NOW KNOWN AS BA
LEASING & CAPITAL CORPORATION U-HAUL LEASING & SALES CO. 26-Dec-97
US BANCORP LEASING AND FINANCIAL U-HAUL CO. OF OREGON 28-Jan-99
CORESTATES LEASING, INC. NOW
KNOWN AS FIRST UNION COMMERCIAL
CORPORATION U-HAUL LEASING & SALES CO. 06-Mar-98
SUMITOMO BANK OF CALIFORNIA
NOW KNOWN AS ZIONS CREDIT
CORPORATION U-HAUL LEASING & SALES CO. 13-Mar-98
BANC ONE LEASING CORPORATION U-HAUL LEASING & SALES CO. 20-Mar-98
COMERICA LEASING CORPORATION U-HAUL LEASING & SALES CO. 26-Mar-98
BA LEASING & CAPITAL CORPORATION U-HAUL LEASING & SALES CO. 27-Mar-98
PITNEY BOWES CREDIT CORPORATION U-HAUL LEASING & SALES CO. 30-Mar-98
FLEET CAPITAL CORPORATION NOW
KNOWN AS THE FIFTH THIRD LEASING
COMPANY U-HAUL LEASING & SALES CO. 30-Mar-98
FLEET CAPITAL CORPORATION NOW
KNOWN AS MIZUHO LEASING INC. U-HAUL LEASING & SALES CO. 30-Mar-98
FLEET CAPITAL CORPORATION NOW
KNOWN AS LASALLE NATIONAL
LEASING CORPORATION U-HAUL LEASING & SALES CO. 30-Mar-98
GENERAL ELECTRIC CAPITAL
CORPORATION U-HAUL LEASING & SALES CO. 15-May-98
AMERICAN FINANCE GROUP, INC. NOW
KNOWN AS US BANCORP LEASING AND
FINANCIAL U-HAUL LEASING & SALES CO. 15-Jun-98
NEWCOURT FINANCIAL USA, INC. NOW
KNOWN AS US BANCORP LEASING AND
FINANCIAL U-HAUL LEASING & SALES CO. 30-Jun-98
CHASE EQUIPMENT LEASING, INC.
NOW KNOWN AS JP MORGAN LEASING,
INC. U-HAUL LEASING & SALES CO. 15-Jul-98
CONCORD COMMERCIAL, DIVISION OF
HSBC BUSINESS LOANS, INC. U-HAUL LEASING & SALES CO. 20-Jul-98
FIRSTMERIT LEASING CORPORATION U-HAUL LEASING & SALES CO. 27-Jul-98
SANWA BUSINESS CREDIT
CORPORATION NOW KNOWN AS FLEET
CAPITAL CORPORATION U-HAUL LEASING & SALES CO. 24-Aug-98
SAFECO CREDIT COMPANY, INC. NOW
KNOWN AS GENERAL ELECTRIC
CAPITAL CORPORATION U-HAUL LEASING & SALES CO. 26-Aug-98
FLEET CAPITAL CORPORATION U-HAUL LEASING & SALES CO. 08-Sep-98
FLEET CAPITAL CORPORATION U-HAUL LEASING & SALES CO. 08-Sep-98
FLEET CAPITAL CORPORATION NOW
KNOWN AS BB&T LEASING
CORPORATION U-HAUL LEASING & SALES CO. 08-Sep-98
CITIZENS LEASING CORPORATION U-HAUL LEASING & SALES CO. 23-Sep-98
BANCBOSTON LEASING, INC. NOW
KNOWN AS FLEET CAPITAL
CORPORATION U-HAUL LEASING & SALES CO. 15-Oct-98
BANCBOSTON LEASING, INC. NOW
KNOWN AS FLEET CAPITAL
CORPORATION U-HAUL LEASING & SALES CO. 15-Oct-98
CITICORP LEASING, INC. U-HAUL LEASING & SALES CO. 23-Oct-98
COMERICA LEASING CORPORATION U-HAUL LEASING & SALES CO. 16-Jun-99
FLEET CAPITAL CORPORATION NOW
KNOWN AS MIZUHO LEASING INC. U-HAUL LEASING & SALES CO. 16-Jun-99
BANC ONE LEASING CORPORATION U-HAUL LEASING & SALES CO. 17-Jun-99
SUNTRUST LEASING CORPORATION U-HAUL LEASING & SALES CO. 28-Jun-99
BNY CAPITAL RESOURCES
CORPORATION U-HAUL LEASING & SALES CO. 15-Jul-99
ALLFIRST BANK NOW KNOWN AS M&T
BANK U-HAUL LEASING & SALES CO. 15-Jul-99
HSBC BUSINESS LOANS, INC. U-HAUL LEASING & SALES CO. 23-Jul-99
SAFECO CREDIT COMPANY, INC. NOW
KNOWN AS GENERAL ELECTRIC
CAPITAL CORPORATION U-HAUL LEASING & SALES CO. 01-Sep-99
CITIZENS LEASING CORPORATION U-HAUL LEASING & SALES CO. 10-Sep-99
SOUTHTRUST BANK N.A. U-HAUL LEASING & SALES CO. 10-Sep-99
BA LEASING & CAPITAL CORPORATION U-HAUL LEASING & SALES CO. 15-Oct-99
NATIONAL CITY LEASING
CORPORATION U-HAUL LEASING & SALES CO. 15-Dec-99
NATIONAL CITY LEASING
CORPORATION U-HAUL LEASING & SALES CO. 15-Dec-99
HSBC BUSINESS LOANS, INC. U-HAUL LEASING & SALES CO. 15-Dec-99
SOUTHTRUST BANK N.A. U-HAUL LEASING & SALES CO. 15-Dec-99
BB&T LEASING CORPORATION U-HAUL LEASING & SALES CO. 03-Feb-00
MELLON US LEASING, A DIVISION OF
MELLON US LEASING CORPORATION
NOW KNOWN AS GENERAL ELECTRIC
CAPITAL CORPORATION U-HAUL LEASING & SALES CO. 10-Feb-00
COMERICA LEASING CORPORATION U-HAUL LEASING & SALES CO. 01-Mar-00
HSBC BUSINESS LOANS, INC. U-HAUL LEASING & SALES CO. 06-Mar-00
THE FIFTH THIRD LEASING COMPANY U-HAUL LEASING & SALES CO. 10-Mar-00
US BANCORP LEASING AND FINANCIAL U-HAUL LEASING & SALES CO. 30-Mar-00
FIRSTMERIT U-HAUL LEASING & SALES CO. 30-Mar-00
BANC ONE LEASING U-HAUL LEASING & SALES CO. 07-Apr-00
FIRSTMERIT LEASING CORPORATION U-HAUL LEASING & SALES CO. 14-Apr-00
SUNTRUST LEASING CORPORATION U-HAUL LEASING & SALES CO. 17-Apr-00
GENERAL ELECTRIC CAPITAL
CORPORATION U-HAUL LEASING & SALES CO. 28-Apr-00
FIRST SECURITY BANK, N.A. NOW
KNOWN AS GENERAL ELECTRIC
CAPITAL CORPORATION U-HAUL LEASING & SALES CO. 05-May-00
ICX CORPORATION U-HAUL LEASING & SALES CO. 15-May-00
LEASE PLAN USA, INC. NOW KNOWN
AS CITICORP LEASING, INC. U-HAUL LEASING & SALES CO. 01-Jun-00
CITICORP LEASING, INC. U-HAUL LEASING & SALES CO. 02-Jun-00
ZIONS CREDIT CORPORATION U-HAUL LEASING & SALES CO. 09-Jun-00
WELLS FARGO BANK, N.A. U-HAUL LEASING & SALES CO. 15-Jun-00
KEYCORP LEASING, A DIVISION OF
KEY CORPORATE CAPITAL INC. U-HAUL LEASING & SALES CO. 22-Jun-00
GENERAL ELECTRIC CAPITAL
BUSINESS ASSET FUNDING
CORPORATION U-HAUL LEASING & SALES CO. 23-Jun-00
GENERAL FOODS CREDIT INVESTORS
NO. 2 CORPORATION AS OWNER
PARTICIPANT U-HAUL LEASING & SALES CO. 30-Jun-00
NORWEST BANK MINNESOTA, N.A.
NOW KNOWN AS WELLS FARGO BANK,
N.A, AS OWNER TRUSTEE OR
PURCHASER U-HAUL LEASING & SALES CO. 30-Jun-00
COMMERCE BANK, N.A. U-HAUL LEASING & SALES CO. 14-Jul-00
AMERICAN FINANCE GROUP, INC.,
D/B/A GUARANTY CAPITAL
CORPORATION NOW KNOWN AS HSBC
BUSINESS LOANS. INC. U-HAUL LEASING & SALES CO. 21-Jul-00
AMERICAN FINANCE GROUP, INC.,
D/B/A GUARANTY CAPITAL
CORPORATION U-HAUL LEASING & SALES CO. 21-Jul-00
AMERICAN FINANCE GROUP, INC.,
D/B/A GUARANTY CAPITAL
CORPORATION U-HAUL LEASING & SALES CO. 21-Jul-00
KEYCORP LEASING, A DIVISION OF
KEY CORPORATE CAPITAL INC. U-HAUL LEASING & SALES CO. 28-Jul-00
GENERAL ELECTRIC CAPITAL
CORPORATION U-HAUL LEASING & SALES CO. 28-Jul-00
FLEET CAPITAL CORPORATION NOW
KNOWN AS OVERLAND CAPITAL
CORPORATION U-HAUL LEASING & SALES CO. 02-Aug-00
FLEET CAPITAL CORPORATION NOW
KNOWN AS MIZUHO LEASING INC. U-HAUL LEASING & SALES CO. 04-Aug-00
FLEET CAPITAL CORPORATION NOW
KNOWN AS PNC LEASING
CORPORATION U-HAUL LEASING & SALES CO. 04-Aug-00
NATIONAL CITY LEASING
CORPORATION U-HAUL LEASING & SALES CO. 10-Aug-00
COMERICA LEASING CORPORATION U-HAUL LEASING & SALES CO. 11-Aug-00
CITIZENS LEASING CORPORATION U-HAUL LEASING & SALES CO. 21-Aug-00
LASALLE NATIONAL LEASING
CORPORATION U-HAUL LEASING & SALES CO. 29-Aug-00
ZIONS CREDIT CORPORATION U-HAUL LEASING & SALES CO. 01-Sep-00
PROVIDENT COMMERCIAL GROUP, INC. U-HAUL LEASING & SALES CO. 06-Sep-00
BOKF EQUIPMENT FINANCE INC. U-HAUL LEASING & SALES CO. 08-Sep-00
GENERAL ELECTRIC CAPITAL
BUSINESS ASSET FUNDING
CORPORATION U-HAUL LEASING & SALES CO. 15-Sep-00
FIRSTSTAR BANK, N.A. NOW KNOWN
AS US BANCORP LEASING AND
FINANCIAL U-HAUL LEASING & SALES CO. 15-Sep-00
ROYAL BANK OF CANADA U-HAUL CO.(CANADA) LTD. 30-Sep-00
GENERAL ELECTRIC CAPITAL
CORPORATION OF TENNESSEE U-HAUL LEASING & OREGON 17-Nov-00
FIRST SECURITY BANK, N.A. NOW
KNOWN AS WELLS FARGO BANK, N.A. U-HAUL LEASING & SALES CO. 01-Dec-00
BOKF EQUIPMENT FINANCE INC. U-HAUL LEASING & SALES CO. 01-Dec-00
KANSAS CITY INDUSTRIAL CAPITAL, U-HAUL CO. OF KANSAS, INC, dba
LLC KC ENGINE SHOP 12-Apr-01
TCF LEASING, INC. U-HAUL LEASING & SALES CO. 01-Jun-01
BNY CAPITAL RESOURCES
CORPORATION U-HAUL LEASING & SALES CO. 26-Jun-01
ZIONS CREDIT CORPORATION U-HAUL LEASING & SALES CO. 06-Sep-01
BANC ONE LEASING CORPORATION U-HAUL LEASING & SALES CO. 30-Oct-01
KEYCORP LEASING, A DIVISION OF
KEY CORPORATE CAPITAL INC. U-HAUL LEASING & SALES CO. 04-Dec-01
KEYCORP LEASING, A DIVISION OF
KEY CORPORATE CAPITAL INC. U-HAUL LEASING & SALES CO. 04-Dec-01
KEYCORP LEASING, A DIVISION OF
KEY CORPORATE CAPITAL INC. U-HAUL LEASING & SALES CO. 04-Dec-01
KEYCORP LEASING, A DIVISION OF
KEY CORPORATE CAPITAL INC. U-HAUL LEASING & SALES CO. 04-Dec-01
FIRSTMERIT LEASING CORPORATION U-HAUL LEASING & SALES CO. 07-Mar-02
CITIZENS LEASING CORPORATION U-HAUL LEASING & SALES CO. 28-Jun-02
BANC ONE LEASING CORPORATION U-HAUL LEASING & SALES CO. 24-Sep-02
IBM CREDIT CORPORATION Republic Western Insurance Company 30-Sep-02
BERND FREYTAG AREC MTM
STATE OF CALIFORNIA DOT AREC MTM
MARY MACARIO AREC 1-Feb-02
COCO'S/CARROWS AREC 1-Jun-03
COLORADO DOT AREC 1-Mar-03
COOK COUNTY DEPT OF REVENUE AREC 1-Sep-02
ELLIE SALTZMAN AREC 1-Jun-99
NORFOLK SOUTHERN CORP AREC 1-Apr-99
AIRPORT GARDEN INVESTORS AMERCO 1-Nov-98
BATON ROUGE WATER CO N/A* N/A*
CITY OF HOUSTON N/A* N/A*
COMED N/A* N/A*
GMAC COMMERICAL HOLDING CORP.,
AS ADMINISTRATIVE AGENT AMERCO# 28-Feb-03
* These entries identify agreements wherein AMERCO has guaranteed U-Haul's
obligations to certain providers of utility services, so no lessee is identified
in these entries.
# This entry identifies AMERCO's execution of a support party agreement on
behalf of PM Preferred Properties, LP ("PMPP"), in relation to a credit facility
under which PMPP is borrower and GMAC is lender. Accordingly, lessor and lessee
nomenclature is inappropriate for this entry.
EXHIBIT G
PMSR AGREEMENT
[SEE ATTACHED]
PMSR AGREEMENT
This PMSR Agreement (this "Agreement") is made and entered into as of
[the Effective Date], by AMERCO, a Nevada corporation ("AMERCO"), Private Mini
Storage Realty, L.P., a Texas limited partnership ("PMSR"), JPMorgan Chase Bank,
as Administrative Agent under the Credit Agreement described below (the
"Administrative Agent"), and the lenders under the Credit Agreement described
below (the "Lenders"). AMERCO, the Administrative Agent and the Lenders are
collectively referred to herein as the "Parties" and individually as a "Party."
RECITALS
WHEREAS, AMERCO is the Support Party under that certain Support Party
Agreement dated as of December 30, 1997 (the "Support Party Agreement"), with
respect to the indebtedness of PMSR under that certain Amended and Restated
Credit Agreement dated as of March 3, 2003 (as amended to date, the "Credit
Agreement"), among PMSR, Storage Realty L.L.C., the Lenders and the
Administrative Agent.
WHEREAS, pursuant to that certain Non-Exoneration Letter dated as of
March 3, 2003, AMERCO acknowledged its obligations under the Support Party
Agreement to purchase all of the outstanding loans made by the Lenders to PMSR
in the aggregate principal amount of $55.55 million (the "PMSR Support
Obligations").
WHEREAS, on June 20, 2003, AMERCO filed for relief under Chapter 11 of
Title 11 of the United States Code, 11 U.S.C. Sections 101, et. seq. (the
"Bankruptcy Code"), before the United States Bankruptcy Court for the District
of Nevada (the "Bankruptcy Court") and on August 13, 2003, AMERCO Real Estate
Company ("AREC") filed for relief under Chapter 11 of the Bankruptcy Code before
the Bankruptcy Court.
WHEREAS, on October 6, 2003, AMERCO and AREC filed a Joint Plan of
Reorganization (the "Plan") with the Bankruptcy Court, which was amended and was
subsequently confirmed by the Bankruptcy Court on _____, 2004. Capitalized terms
used herein without definition have the meanings ascribed to them in the Plan.
WHEREAS, under the Plan, the Lenders have an Allowed Class 7 Claim of
$55.55 million plus any unpaid interest or charges owing under the Credit
Agreement and will receive a Pro Rata share of each of the following on the
Effective Date: (i) Cash in an amount to be determined; (ii) New Term Loan B
Notes in a principal amount to be determined; (iii) SAC Holding Senior Notes in
the Face Amount of $200 million; and (iv) New AMERCO Notes in an amount to be
determined (the SAC Holding Senior Notes, the New Term Loan B Notes and the New
AMERCO Notes received by the Lenders are hereinafter referred to as the "New
Debt Securities"); and the sum of the cash and the Face Amount of the New Debt
Securities that the Lenders are to receive under the Plan will equal their
Allowed Class 7 Claim.
WHEREAS, pursuant to the Plan, Reorganized AMERCO and the Lenders are
required to enter into this Agreement on the Effective Date of the Plan.
WHEREAS, the purpose of this Agreement is to prevent the Lenders from
being paid twice (i.e., once on the Loans (as defined in the Credit Agreement)
and again on the New Debt
1
Securities).
AGREEMENT
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
Parties hereby agree as follows:
1. Recitals. Each of the foregoing Recitals is incorporated
hereby as if fully set forth herein.
2. New Debt Securities to be Issued to Administrative Agent. Each
Lender hereby agrees that all of the New Debt Securities to be issued to the
Lenders in partial satisfaction of the Lenders' Allowed Class 7 Claims shall be
issued to the Administrative Agent on behalf of the Lenders, and the
Administrative Agent agrees to hold such New Debt Securities as agent for and on
behalf of the Lenders in accordance with this Agreement. Subject to Section 4
below, the Administrative Agent agrees to distribute all payments of principal
of, and interest and other amounts on, such New Debt Securities that the
Administrative Agent then holds to the Lenders on a Pro Rata basis promptly upon
receipt.
3. Assignment on Effective Date; Promissory Notes. Each Lender
hereby assigns to AMERCO a portion of its Loans (as defined in the Credit
Agreement) in an aggregate principal amount equal to the Cash received by such
Lender on the Effective Date in partial satisfaction of the principal portion of
its Allowed Class 7 Claim. PMSR and the Administrative Agent hereby consent to
such assignment.
4. Interest Payments, (a) The Administrative Agent shall
distribute all payments of interest on the Loans to the Lenders in accordance
with the Credit Agreement. So long as no default in the payment of interest has
occurred and is continuing under the New Debt Securities, then, except as
otherwise provided in this paragraph, upon the Administrative Agent's receipt of
each payment of interest on any New Debt Securities (the date of such payment,
an "NDS Interest Payment Date"), the Administrative Agent shall within one (1)
Business Day thereafter distribute a portion of such interest to AMERCO in an
amount equal to the product of (i) the interest on the Loans paid to the Lenders
during the Interest Payment Period (as hereafter defined) ending on such NDS
Interest Payment Date and (ii) a fraction, the numerator of which equals the
outstanding aggregate principal amount of the New Debt Securities for which
interest was received by the Administrative Agent on the relevant NDS Interest
Payment Date and the denominator of which equals the outstanding aggregate
principal amount of all New Debt Securities held by the Administrative Agent on
such NDS Interest Payment Date. Any amount of interest on the New Debt
Securities not distributed to AMERCO in accordance with the immediately
preceding sentence shall be distributed to the Lenders on a pro rata basis.
(b) For purposes of this Agreement, an "Interest
Payment Period" is the period commencing on the Effective Date and
ending on the first NDS Interest Payment Date, and each subsequent
Interest Payment Period commences on the day after the preceding NDS
Interest Payment Date and ends on the next succeeding NDS Interest
Payment Date.
2
(c) If any payment of interest on the New Debt
Securities is made other than on the date it is due, the Administrative
Agent shall distribute AMERCO's portion of the payment to AMERCO 95
days after the payment date. If the payor of the interest becomes a
debtor in a case under the Bankruptcy Code within the 95-day period,
then the Administrative Agent shall not distribute any portion until
such time as there is a final resolution of whether any interest
payment is avoidable or recoverable in the bankruptcy case. At the time
of such final resolution, the Administrative Agent shall retain or
shall transfer to AMERCO the interest payment based on the amount, if
any, that the Administrative Agent retains (for distribution to the
Lenders) of the payment.
5. Principal Payments on New Debt Securities. If the issuer of a
New Debt Security pays any principal owing on the New Debt Security to the
Administrative Agent, or redeems such New Debt Security, then, except as
otherwise provided in this paragraph, the Administrative Agent shall transfer an
amount of Loans with a face amount equal to the amount of any principal paid or
redeemed on the New Debt Security to AMERCO on the date that is 95 days after
the date of the principal payment or redemption, together with any interest and
principal payments made on such Loans during such 95 day period, if the issuer
of the New Debt Securities redeemed or on which principal payments were made has
not then become a debtor in a case under the Bankruptcy Code. If the issuer has
become a debtor in a case under the Bankruptcy Code within the 95-day period,
then the Administrative Agent may continue to hold the Loans (together with any
interest and principal payments thereon) that otherwise would have been assigned
and transferred until such time as there is a final resolution of whether any
principal or redemption payment to the Administrative Agent is avoidable or
recoverable in the bankruptcy case. At the time of such final resolution, the
Administrative Agent shall retain the Loans (together with any interest and
principal payments thereon) or shall transfer and assign the Loans (together
with any interest and principal payments thereon) to AMERCO based on the amount,
if any, that the Administrative Agent retains (for distribution to the Lenders)
of the principal or redemption payment. PMSR and the Administrative Agent hereby
consent to any assignment pursuant to this Section 5.
6. Sale of New Debt Securities. If any Lender (a "Selling
Lender"), acting in its sole discretion, decides to sell all or a portion of the
New Debt Securities held on behalf of such Lender by the Administrative Agent to
a third party, such Selling Lender shall notify the Administrative Agent and
AMERCO of such sale and, upon the closing of such sale, (i) the Administrative
Agent shall release such New Debt Securities to the buyer and (ii) such Selling
Lender shall assign to AMERCO a portion of its Loans in an aggregate principal
amount equal to the Face Amount of the New Debt Securities sold by such Selling
Lender. PMSR and the Administrative Agent hereby consent to any such assignment.
7. Sale or Assignment of Loans. If any Lender (an "Assigning
Lender"), acting in its sole discretion, decides to sell or assign all or a
portion of its Loans to a third party, in addition to complying with the
assignment provisions of the Credit Agreement, such Assigning Lender shall (i)
require that such third party agree in writing to become a party to this
Agreement and be treated as a Lender for all purposes with respect to the
assigned Loans; and (ii) notify the Administrative Agent of such sale or
assignment and, upon the closing of such sale or assignment, the Administrative
Agent shall hold all (or if only a portion of the Loans of the Assigning Lender
are being sold or assigned, a corresponding portion) of the New Debt Securities
held by the
3
Administrative Agent on behalf of the Assigning Lender as agent for and on
behalf of the buyer or assignee of the Loans, subject to all of the terms and
provisions of this Agreement.
8. Repayment of Loans.
(a) The Administrative Agent shall distribute all
payments of principal on the Loans to the Lenders in accordance with
the Credit Agreement and, except as otherwise provided in this
paragraph 8, shall, 95 days after the date of payment, transfer New
Debt Securities in an aggregate Face Amount equal to such principal
payment to AMERCO. New Debt Securities so transferred to AMERCO shall
be in the following order: (i) first, New AMERCO Notes; (ii) second,
New Term Loan B Notes; and (iii) third, SAC Holding Senior Notes.
(b) If the Loans, together with accrued interest
thereon and any other amounts due to the Administrative Agent and the
Lenders under the Credit Agreement, are repaid in full prior to the
payment in full of the New Debt Securities, then except as otherwise
provided in this paragraph 8, the Administrative Agent shall transfer
all New Debt Securities held by it on behalf of the Lenders to AMERCO
95 days after the date of repayment.
(c) If PMSR becomes a debtor in a case under the
Bankruptcy Code within 95 days after any payment of principal on the
Loans, then the Administrative Agent may continue to hold the New Debt
Securities that otherwise would have been transferred under this
paragraph 8 until such time as there is a final resolution of whether
any payment is avoidable or recoverable in the bankruptcy case. At the
time of such final resolution, the Administrative Agent shall retain
the New Debt Securities (together with any payment of principal or
interest thereon) or transfer the New Debt Securities (together with
any payment of principal or interest thereon) to AMERCO based on the
amount, if any, that the Administrative Agent retains (for distribution
to the Lenders) of the payment.
9. Subordination. AMERCO hereby covenants and agrees that its
rights and the rights of any of its subsidiaries, whether now existing or
hereafter arising, to receive payment on account of any indebtedness owed to it
or any such subsidiary by PMSR, whether under the Loans transferred to it under
this Agreement or otherwise, or to receive any payment from PMSR from any other
source (other than ordinary expenses relating to the operation of the business
of PMSR, paid in PMSR's ordinary course of business) shall at all times be
Subordinate (as defined in the Credit Agreement) in accordance with the
provisions of Schedule S of the Credit Agreement ("Schedule S") to the full and
prior repayment of the amounts outstanding in favor of the Lenders under the
Credit Agreement. Except as expressly provided in Schedule S or in Section 4 of
this Agreement, neither AMERCO nor any of its subsidiaries shall be entitled to
enforce or receive payment of any sums hereby Subordinated until the amounts
outstanding under the Credit Agreement in favor of the Lenders have been paid
and performed in full and all Commitments terminated, and any such sums received
in violation of this Agreement or Schedule S shall be received by AMERCO or its
subsidiaries, as applicable, in trust for the Administrative Agent and the
Lenders. AMERCO shall cause each subsidiary to Subordinate any indebtedness owed
to the subsidiary by PMSR in accordance with the terms of this Section 9.
Notwithstanding anything in Schedule S to the contrary, AMERCO shall not have
the right to vote on any amendment, waiver
4
or consent with respect to the Credit Agreement or any other Loan Document (as
defined in the Credit Agreement) until the termination of this Agreement. If
AMERCO transfers any of the Loans that it receives under this Agreement to any
other entity, whether or not an AMERCO subsidiary, the subordination provisions
of this paragraph shall continue to apply to the transferred Loans as though
still held by AMERCO.
10. Loans Transferred to AMERCO.
(a) Notwithstanding the transfer of Loans to AMERCO under
any provision of this Agreement, AMERCO shall not be deemed to be a
"Lender" for any purpose under this Agreement. Notwithstanding any
other provision of this Agreement, once the Administrative Agent
transfers a Loan to AMERCO, the Loan shall no longer be treated as a
"Loan" for purposes of this Agreement.
(b) If any Loan assigned, in whole or in part, to AMERCO
hereunder is evidenced by a promissory note, the assigning Lender
shall, promptly upon such assignment, surrender such promissory note to
PMSR, and PMSR shall promptly prepare and execute new promissory notes
evidencing the Loans retained by such assigning Lender and the Loans
assigned to AMERCO and deliver them to the assigning Lender and AMERCO,
respectively. If any Loan assigned to AMERCO hereunder is not evidenced
by a promissory note, the assigning Lender shall promptly upon such
assignment notify PMSR of such assignment, and PMSR shall promptly
execute and deliver to AMERCO a new promissory note evidencing the Loan
assigned to AMERCO. PMSR shall make all payments required under the
promissory notes delivered to AMERCO hereunder directly to AMERCO or as
otherwise instructed by AMERCO.
11. Disclosure. The Parties agree that a copy of this Agreement
shall be filed with the Bankruptcy Court.
12. Termination of Agreement. This Agreement shall terminate on
the later to occur of (i) the date that all Loans held by the Lenders on the
Effective Date have been assigned or transferred to AMERCO as provided hereunder
and (ii) the date that all New Debt Securities held by the Administrative Agent
on behalf of the Lenders have been transferred to AMERCO in accordance with
Section 8 hereof.
13. Costs and Expenses. AMERCO agrees to pay all reasonable
out-of-pocket expenses incurred by the Administrative Agent in connection with
the preparation, execution, delivery and administration of this Agreement or in
connection with any amendments, modifications or waivers of the provisions
hereof or incurred by the Administrative Agent or any Lender in connection with
the enforcement or protection of their rights in connection with this Agreement,
including the reasonable fees, charges and disbursements of Skadden, Arps,
Slate, Meagher & Flom LLP, counsel for the Administrative Agent, and, in
connection with any such amendment, modification or waiver or any such
enforcement or protection, the fees, charges and disbursements of any other
counsel for the Administrative Agent or any Lender.
14. Representations and Warranties. AMERCO represents and warrants
to the Administrative Agent and each Lender that the following statements are
true, correct and complete as of the date hereof:
5
(a) Power and Authority. It is duly organized, validly
existing, and in good standing under the laws of the state of its
organization, and has all requisite corporate, partnership or limited
liability company power and authority to enter into this Agreement and
to carry out the transactions contemplated by, and perform its
respective obligations under, this Agreement.
(b) Authorization. The execution and delivery of this
Agreement and the performance of its obligations hereunder have been
duly authorized by all necessary corporate, partnership or limited
liability company action on its part.
(c) No Conflicts. The execution, delivery and performance
by it of this Agreement do not and shall not (i) violate any provision
of law, rule or regulation applicable to it or any of its subsidiaries
or its certificate of incorporation or bylaws or other organizational
documents or those of any of its subsidiaries or (ii) conflict with,
result in a breach of or constitute (with due notice or lapse of time
or both) a default under any material contractual obligation to which
it or any of its subsidiaries is a party.
(d) Governmental Consents. The execution, delivery and
performance by it of this Agreement do not and shall not require any
registration or filing with consent or approval of, or notice to, or
other action to, with or by, any federal, state or other governmental
authority or regulatory body.
(e) Binding Obligation. This Agreement is the legally
valid and binding obligation of AMERCO, enforceable against it in
accordance with its terms.
(f) Bankruptcy Court Approval. This Agreement has been
approved by the Bankruptcy Court in connection with the confirmation of
a plan of reorganization for AMERCO in its chapter 11 case.
15. Amendments. This Agreement may not be modified, amended or
supplemented without the prior written consent of AMERCO, PMSR, the
Administrative Agent and all of the Lenders.
16. Governing Law; Jurisdiction. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York. By its
execution and delivery of this Agreement, each of the Parties hereto hereby
irrevocably and unconditionally agrees for itself that any legal action, suit or
proceeding against it with respect to any matter under or arising out of or in
connection with this Agreement or for recognition or enforcement of any judgment
rendered in any such action, suit or proceeding, may be brought in the United
States District Court for the Southern District of New York. By execution and
delivery of this Agreement, each of the Parties hereto irrevocably accepts and
submits itself to the nonexclusive jurisdiction of such court, generally and
unconditionally, with respect to any such action, suit or proceeding.
17. Headings. The headings of the sections, paragraphs and
subsections of this Agreement are inserted for convenience only and shall not
affect the interpretation hereof.
6
18. Successors and Assigns. This Agreement is intended to bind and
inure to the benefit of the Parties and their respective successors, assigns,
heirs, executors, administrators and representatives.
19. Prior Negotiations. This Agreement supersedes all prior
negotiations with respect to the subject matter hereof.
20. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same Agreement. Delivery of an executed counterpart of
this Agreement by facsimile shall be equally as effective as delivery of the
original executed counterpart of this Agreement.
21. No Third-Party Beneficiaries. Unless expressly stated herein,
this Agreement shall be solely for the benefit of the Parties hereto and no
other person or entity shall be a third-party beneficiary hereof, other than
successors and assigns of any Party.
22. Notices. (a) All notices hereunder to be served to AMERCO
shall be deemed given if in writing and delivered or sent by telecopy, courier
or by registered or certified mail (return receipt requested) to the following
addresses or telecopier numbers (or at such other addresses or telecopier
numbers as shall be specified by like notice):
AMERCO
c/o U-Haul International, Inc.
2727 North Central Avenue
Suite 500
Phoenix, Arizona 85004
Attn: Jennifer M. Settles, Esq.
Fax: 602-263-6173
with copy to:
SQUIRE, SANDERS & DEMPSEY L.L.P.
40 N. Central Avenue, Suite 2700
Phoenix, AZ 85004
Attn: Christopher D. Johnson, Esq.
Fax: 602-253-8129
(b) All notices hereunder to be served to PMSR shall
be deemed given if in writing and delivered or sent by telecopy,
courier or by registered or certified mail (return receipt requested)
to the following addresses or telecopier numbers (or at such other
addresses or telecopier numbers as shall be specified by like notice):
Private Mini Storage Realty, L.P.
10575 Westoffice Drive
Houston, TX 77042
7
Attn: Doug Mulvaney
Fax: 713-827-0710
with copy to:
NATHAN SOMMERS JACOBS & GORMAN
2700 Post Oak Boulevard, Suite 2500
Houston, TX 77055
Attn: Marvin D. Nathan, Esq.
Fax: 713-892-4800
(c) All notices hereunder to be served to the
Administrative Agent or a Lender shall be deemed given if in writing
and delivered or sent by telecopy, courier or by registered or
certified mail (return receipt requested) to the address or telecopier
number for such person set forth above its signature hereto (or at such
other addresses or telecopier numbers as shall be specified by like
notice), with a copy to:
SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP
300 South Grand Avenue, 34th Floor
Los Angeles, CA 90071
Attn: Richard Levin, Esq.
Fax: 213-687-5600
23. Effectiveness. This Agreement shall become effective when
AMERCO has received counterparts of this Agreement duly executed and delivered
by AMERCO, PMSR, the Administrative Agent and all of the Lenders.
[Signature page follows]
8
IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered by its duly authorized officer as of the
date first above written.
AMERCO
By:______________________________________
Name:________________________________
Title:_______________________________
[Additional signature pages follow]
9
PRIVATE MINI STORAGE REALTY, L.P.
By: STORAGE REALTY L.L.C, its General Partner
By:______________________________________
Name:________________________________
Title:_______________________________
10
JP MORGAN CHASE BANK,
AS ADMINISTRATIVE AGENT
By:______________________________________
Name:________________________________
Title:_______________________________
Address for notices:
11
LENDERS:
By:______________________________________
Name:________________________________
Title:_______________________________
Address for notices:
12
EXHIBIT H
RESTATED BMO MASTER LEASE
[SEE ATTACHED]
SECOND AMENDED AND RESTATED MASTER LEASE AND OPEN END
MORTGAGE
THIS DOCUMENT SECURES FUTURE ADVANCES
THIS SECOND AMENDED AND RESTATED MASTER LEASE AND OPEN END MORTGAGE,
dated as of____________________, 2004, among each institution executing a
signature page hereto as a lessor an/or receiving an assignment of a lessor's
interest pursuant to Section 12.1 of the Participation Agreement, for so long as
such institution shall hold a lessor's interest hereunder (each, individually, a
"Lessor" and collectively, the "Lessors"), U-HAUL INTERNATIONAL, INC., a Nevada
corporation ("International"), as Lessee of the Existing Properties, AMERCO REAL
ESTATE COMPANY, a Nevada corporation ("AREC"), as Lessee of the Properties
(other than the Existing Properties) (International and AREC, collectively, the
"Lessee"), and BMO GLOBAL CAPITAL SOLUTIONS, INC. (f/k/a Bank of Montreal Global
Capital Solutions, Inc. and f/k/a BMO Leasing (U.S.), Inc.), a Delaware
corporation, as agent for the Lessors (in such capacity, the "Agent Lessor").
WITNESSETH:
WHEREAS, pursuant to the Master Lease and Open End Mortgage dated as of
December 6, 1996 (the "Original Master Lease"), among International, the lessor
parties thereto and the Agent Lessor, such lessors have agreed to lease to
International, and the Lessee has agreed to lease from such lessors, each
Property;
WHEREAS, pursuant to the Amended and Restated Master Lease and Open End
Mortgage dated as of July 27,1999, a copy of which is attached hereto as Exhibit
A (the "Amended Master Lease"), among Lessee, the Lessors and the Agent Lessor,
the Original Master Lease was amended and restated in its entirety; and
WHEREAS, Lessee, the Lessors and the Agent Lessor desire to amend and
restate the Amended Master Lease (the Amended Master Lease, as amended and
restated as set forth herein and as further amended, supplemented, amended and
restated or otherwise modified from time to time after the date hereof, this
"Master Lease") to accomplish the following: (i) the prepayment of $5,100,000 of
the principal balance of the Lender Base Rent and the Lessor Basic Rent
obligations; (ii) extend the Lease Term by seven (7) years; (iii) increase the
effective rate of interest to be paid on the Lender Basic Rent and Lessor Basic
Rent obligations; and (iv) amortize over thirty (30) years the principal of the
Lender Basic Rent and Lessor Basic Rent obligations.
ARTICLE I
DEFINITIONS; INCORPORATION BY REFERENCE; RATIFICATION
1.1 Definitions; Interpretation. Capitalized Terms used but not
otherwise defined in this Master Lease have the respective meanings specified in
Appendix A to the Participation Agreement; and the rules of interpretation set
forth in Appendix A to the Participation Agreement shall apply to this Master
Lease.
1.2 Incorporation by Reference; Ratification. The Amended Master
Lease is hereby incorporated in this Master Lease by this reference as though
fully stated herein; provided, however, that certain of the terms and conditions
of the Amended Master Lease are hereby modified on the terms and conditions set
forth herein. The parties hereby ratify and confirm the continued force and
effect of this Master Lease, and agree that all terms and provisions of the
Amended Master Lease shall remain in full force and effect as originally set
forth, except as otherwise expressly modified or amended herein. In the event of
any conflict between the provisions of this Master Lease and the provisions of
the Operative Documents, the provisions of this Master Lease shall prevail.
ARTICLE II
AMENDED AND RESTATED TERMS
2.1 Lease Term. Section 2.3 of the Amended Master Lease is hereby
deleted in its entirety and replaced with the following:
2.3 Lease Term. The Lease Term for each Property (other
than Improved Property) shall consist of an Interim Lease Term
(an "Interim Lease Term") and a Basic Lease Term (a "Basic
Lease Term"), and the Lease Term for each Improved Property
shall consist of a Basic Lease Term only. The Interim Lease
Term of this Master Lease with respect to any Property (other
than an Improved Property) shall commence on (and include) the
Acquisition Date therefore and end on (but exclude) the
Completion Date for such Property. The Basic Lease Term of
this Master Lease for each Property shall be as follows: (a)
with respect to each Property (other than an Improved
Property), the Basic Lease Term shall commence on (and
include) the last day of the Interim Lease Term for such
Property and end on the date that is the day immediately
preceding the date that is the seventh (7th) anniversary of
the date of the Amended and Restated Lease and (b) with
respect to each Improved Property, the Basic Lease Term shall
commence on (and include) the Acquisition Date of such
Property and end on the date that is the day immediately
preceding the date that is the seventh (7th) anniversary of
the date of the Amended and Restated Lease.
2.2 Rent. The following is hereby added to the end of Section
3.1(a) of the Amended Master Lease:
Notwithstanding any provision to the contrary in the Master
Lease or The Participation Agreement, "Basic Rent" shall be
the sum of the payments for (i) the Lender Basic Rent
Amortization (as set forth in Exhibit "B" attached hereto and
herein incorporated by the reference) and (ii) the Lessor
Basic Rent Amortization (as set forth
in Exhibit "C" attached hereto and herein incorporated by the
reference).
IN WITNESS WHEREOF, the parties have caused this Master Lease to be
duly executed and delivered as of the date first above written.
U-HAUL INTERNATIONAL, INC., as a Lessee
By:__________________________________
Name:________________________________
Title:_______________________________
AMERCO REAL ESTATE COMPANY, as a Lessee
By:__________________________________
Name:________________________________
Title:_______________________________
BMO GLOBAL CAPITAL SOLUTIONS, INC., as
Agent Lessor and as a Lessor
By:__________________________________
Name:________________________________
Title:_______________________________
FBTC LEASING CORP., as a Lessor
By:__________________________________
Name:________________________________
Title:_______________________________
DRESDNER BANK AG, NEW YORK AND
GRAND CAYMAN BRANCES, as a Lessor
By:__________________________________
Name:________________________________
Title:_______________________________
By:__________________________________
Name:________________________________
Title:_______________________________
STATE OF__________________________ )
) ss.:
COUNTY OF_________________________ )
The foregoing Master Lease was acknowledged before me, the undersigned
Notary Public, in the County of_________________, ____________________ of
________________, this ______ day of ________________, ________, by
_____________________, as ___________________ of U-HAUL INTERNATIONAL, INC., a
Nevada corporation, on behalf of said corporation.
[Notarial Seal] ________________________________________
Notary Public
My commission expires:__________________________________
STATE OF__________________________ )
) ss.:
COUNTY OF_________________________ )
The foregoing Master Lease was acknowledged before me, the undersigned
Notary Public, in the County of _______________, ______________________ of
_______________, this ______ day of_________________, ______, by
______________________, as ________________________ of AMERCO REAL ESTATE
COMPANY, a Nevada corporation, on behalf of said corporation.
[Notarial Seal] ________________________________________
Notary Public
My commission expires:__________________________________
STATE OF___________________________ )
) ss.:
COUNTY OF__________________________ )
The foregoing Master Lease was acknowledged before me, the undersigned
Notary Public, in the County of _____________________, ________________ of
________________, this ______ day of ____________, ________, by
______________________, as ________________________ of BMO GLOBAL CAPITAL
SOLUTIONS, INC., a Delaware corporation, on behalf of said corporation.
[Notarial Seal] ________________________________________
Notary Public
My commission expires:__________________________________
STATE OF___________________________ )
) ss.:
COUNTY OF__________________________ )
The foregoing Master Lease was acknowledged before me, the undersigned
Notary Public, in the County of _____________________, ________________ of
___________, this ___________ day of _________________, ________, by
_____________________, as ________________________ of FBTC LEASING CORP., a New
York corporation, on behalf of said corporation.
[Notarial Seal] ______________________________________
Notary Public
My commission expires:_________________________________
STATE OF___________________________ )
) ss.:
COUNTY OF__________________________ )
The foregoing Master Lease was acknowledged before me, the undersigned
Notary Public, in the County of _____________________, ________________ of
_______________, this ______ day of _________________, ________, by
______________________, as ________________________ of DRESDNER BANK AG, NEW
YORK AND GRAND CAYMAN BRANCES, a _____________________________________
corporation, on behalf of said corporation.
[Notarial Seal] ________________________________________
Notary Public
My commission expires:__________________________________
THIS COUNTERPART IS THE ORIGINAL EXECUTED COUNTERPART.
Receipt of this original counterpart of the foregoing Master Lease is hereby
acknowledged as of ________________, ________.
BANK OF MONTREAL, as Administrative Agent
for the Lenders
By:__________________________________
Name:________________________________
Title:_______________________________
BMO LENDER BASIC RENT
Yearly Interest 7.44%
Amount Financed $121,731,320
Quarters Financed 120
Yearly Payments $ 10,174,641
PAYMENT TO PAYMENT TO PRINCIPLE
QUARTER PAYMENT INTEREST PRINCIPLE BALANCE
- ----------------------------------------------------------------------------
$121,731,320
1 $ 2,543,660 $ 2,265,344 $ 278,316 121,453,003
2 2,543,660 2,260,164 283,496 121,169,508
3 2,543,660 2,254,889 288,771 120,880,736
4 2,543,660 2,249,515 294,145 120,586,591
5 2,543,660 2,244,041 299,619 120,286,972
6 2,543,660 2,238,465 305,195 119,981,777
7 2,543,660 2,232,786 310,874 119,670,903
8 2,543,660 2,227,001 316,659 119,354,243
9 2,543,660 2,221,108 322,552 119,031,691
10 2,543,660 2,215,105 328,555 118,703,136
11 2,543,660 2,208,991 334,669 118,368,467
12 2,543,660 2,202,763 340,897 118,027,570
13 2,543,660 2,196,419 347,241 117,680,329
14 2,543,660 2,189,957 353,703 117,326,626
15 2,543,660 2,183,375 360,285 116,966,341
16 2,543,660 2,176,671 366,990 116,599,352
17 2,543,660 2,169,841 373,819 116,225,533
18 2,543,660 2,162,885 380,776 115,844,757
19 2,543,660 2,155,799 387,862 115,456,895
20 2,543,660 2,148,581 395,080 115,061,816
21 2,543,660 2,141,228 402,432 114,659,384
22 2,543,660 2,133,739 409,921 114,249,463
23 2,543,660 2,126,111 417,549 113,831,914
24 2,543,660 2,118,341 425,319 113,406,595
25 2,543,660 2,110,426 433,234 112,973,360
26 2,543,660 2,102,364 441,297 112,532,064
27 2,543,660 2,094,151 449,509 112,082,555
28 2,543,660 2,085,786 457,874 111,624,681
BMO LESSOR BASIC RENT
Yearly Interest 7.82%
Amount Financed $21,536,490
Quarters Financed 120
Yearly Payments $ 1,866,792
PAYMENT TO PAYMENT TO PRINCIPLE
QUARTER PAYMENT INTEREST PRINCIPLE BALANCE
- ----------------------------------------------------------------------------
$21,536,490
1 $ 466,698 $ 420,971 $ 45,727 21,490,763
2 466,698 420,077 46,621 21,444,142
3 466,698 419,166 47,532 21,396,610
4 466,698 418,237 48,461 21,348,149
5 466,698 417,290 49,408 21,298,741
6 466,698 416,324 50,374 21,248,366
7 466,698 415,339 51,359 21,197,008
8 466,698 414,335 52,363 21,144,645
9 466,698 413,312 53,386 21,091,259
10 466,698 412,268 54,430 21,036,829
11 466,698 411,204 55,494 20,981,335
12 466,698 410,120 56,578 20,924,756
13 466,698 409,014 57,684 20,867,072
14 466,698 407,886 58,812 20,808,260
15 466,698 406,736 59,962 20,748,298
16 466,698 405,564 61,134 20,687,165
17 466,698 404,369 62,329 20,624,836
18 466,698 403,151 63,547 20,561,289
19 466,698 401,909 64,789 20,496,500
20 466,698 400,643 66,056 20,430,445
21 466,698 399,351 67,347 20,363,098
22 466,698 398,035 68,663 20,294,435
23 466,698 396,693 70,005 20,224,430
24 466,698 395,324 71,374 20,153,056
25 466,698 393,929 72,769 20,080,287
26 466,698 392,507 74,191 20,006,096
27 466,698 391,057 75,641 19,930,455
28 466,698 389,578 77,120 19,853,335
EXHIBIT I
RESTATED CITIBANK MASTER LEASE
[SEE ATTACHED]
AMENDED AND RESTATED MASTER LEASE
THIS AMENDED AND RESTATED MASTER LEASE, dated as of
_______________________________, 2004, between BMO GLOBAL CAPITAL SOLUTIONS,
INC., a Delaware corporation (the "Lessor"), having an address at 430 Park
Avenue, 16th Floor, New York, New York 10022, and AMERCO REAL ESTATE COMPANY, a
Nevada corporation (the "Lessee"), having an address at 2727 N. Central Avenue,
Phoenix, Arizona 85004. as Lessee of the Properties (other than the Existing
Properties) (International and AREC, collectively, the "Lessee"), and as agent
for the Lessors (in such capacity, the "Agent Lessor").
Preliminary Statement
Pursuant to the Master Lease dated as of September 24,1999, a copy of
which is attached hereto as Exhibit A (the "Original Master Lease"), between
Lessor and Lessee, Lessee has agreed to lease from Lessor the Properties, and
Lessor has agreed to lease to Lessee the Properties. Lessee and Lessor desire to
amend and restate the Original Master Lease in its entirety (the Original Master
Lease, as amended and restated as set forth herein and as further amended,
supplemented, amended and restated or otherwise modified from time to time after
the date hereof, this "Master Lease") to accomplish the following: (i) the
prepayment of $3,500,000 of the principal balance of the Series A Portion of the
Adjusted Capital Cost of the Property (the "Series A Obligations"), the Series B
Portion of the Adjusted Capital Cost of the Property (the "Series B
Obligations") and the Series C Portion of the Adjusted Capital Cost of the
Property (the "Series C Obligations"); (ii) extend the Lease Term by seven (7)
years; (iii) increase the effective rate of interest to be paid on the Series A
Obligations, the Series B Obligations and the Series C Obligations, and (iv)
amortize over thirty (30) years the principal of the Series A Obligations, the
Series B Obligations and the Series C Obligations.
ARTICLE I
DEFINITIONS; INCORPORATION BY REFERENCE; RATIFICATION
1.1 Definitions. Capitalized Terms used but not otherwise defined
in this Master Lease have the respective meanings specified in the Participation
Agreement dated as of September 24,1999, by and among AMERCO, the Lessee, the
Lessor, the Persons named therein as Note Holders and as Certificate Holders,
the Persons named therein as APA Purchasers, and Citicorp USA, Inc., as Agent
(as the same may be amended, modified or supplemented from time to time).
1.2 Incorporation by Reference; Ratification. The Original Master
Lease is hereby incorporated in this Master Lease by this reference as though
fully stated herein; provided, however, that certain of the terms and conditions
of the Original Master Lease are hereby modified on the terms and conditions set
forth herein. The parties hereby ratify and confirm the continued force and
effect of this Master Lease, and agree that all terms and provisions of the
Original Master Lease shall remain in full force and effect as originally set
forth, except as otherwise expressly modified or amended herein. In the event of
any conflict between the
provisions of this Master Lease and the provisions of the Operative Documents,
the provisions of this Master Lease shall prevail.
ARTICLE II
AMENDED AND RESTATED TERMS
2.1 Section 3 of the Lease is hereby deleted in its entirety and
replaced with the following:
3. Term. The Lease shall be effective as of the date
hereof. Each Property is leased for a Term (the "Term") which
shall commence, with respect to any portion of the Property,
on the Transaction Date set forth in the Lease Supplement
applicable to such Property and shall terminate on the date
that is the day immediately preceding the date that is the
seventh (7th) anniversary of the date of the Amended and
Restated Lease (the "Expiration Date") or such earlier date as
the Lease with applicable Lease Supplement for such Property
shall be terminated pursuant to any provision hereof.
2.2 Fixed Rent. Section I.C of Schedule A is hereby deleted in its
entirety and replaced with the following:
Notwithstanding any provision to the contrary in the Master
Lease or the Participation Agreement, "Fixed Rent" shall be
due and payable in arrears on each Payment Date and shall be
the sum of the payments for (i) the Series A Obligations (as
set forth in Exhibit "A" attached hereto and herein
incorporated by the reference), (ii) the Series B Obligations
(as set forth in Exhibit "B" attached hereto and herein
incorporated by the reference), and (iii) the Series C
Obligations (as set forth in Exhibit "C" attached hereto and
herein incorporated by the reference.
IN WITNESS WHEREOF, the parties have caused this Master Lease to be
duly executed and delivered as of the date first above written.
LESSOR:
BMO GLOBAL CAPITAL SOLUTIONS, INC.
By:__________________________________
Name:________________________________
Title:_______________________________
LESSEE: .
AMERCO REAL ESTATE COMPANY
By:__________________________________
Name:________________________________
Title:_______________________________
CITIBANK - SERIES A OBLIGATIONS
Yearly Interest 7.46%
Amount Financed $82,992,024
Quarters Financed 120
Yearly Payments $ 6,949,474
PAYMENT TO PAYMENT TO PRINCIPLE
QUARTER PAYMENT INTEREST PRINCIPLE BALANCE
- ------------------------------------------------------------------------
$82,992,024
1 $1,737,369 $1,548,320 $ 189,049 82,802,975
2 1,737,369 1,544,793 192,576 82,610,400
3 1,737,369 1,541,200 196,168 82,414,231
4 1,737,369 1,537,541 199,828 82,214,403
5 1,737,369 1,533,812 203,556 82,010,847
6 1,737,369 1,530,015 207,354 81,803,494
7 1,737,369 1,526,146 211,222 81,592,272
8 1,737,369 1,522,206 215,163 81,377,109
9 1,737,369 1,518,192 219,177 81,157,932
10 1,737,369 1,514,103 223,266 80,934,666
11 1,737,369 1,509,937 227,431 80,707,235
12 1,737,369 1,505,694 231,674 80,475,561
13 1,737,369 1,501,372 235,996 80,239,564
14 1,737,369 1,496,969 240,399 79,999,165
15 1,737,369 1,492,484 244,884 79,754,281
16 1,737,369 1,487,916 249,453 79,504,828
17 1,737,369 1,483,262 254,107 79,250,722
18 1,737,369 1,478,521 258,847 78,991,874
19 1,737,369 1,473,692 263,676 78,728,198
20 1,737,369 1,468,773 268,596 78,459,603
21 1,737,369 1,463,762 273,607 78,185,996
22 1,737,369 1,458,657 278,711 77,907,285
23 1,737,369 1,453,458 283,911 77,623,374
24 1,737,369 1,448,161 289,207 77,334,167
25 1,737,369 1,442,766 294,603 77,039,564
26 1,737,369 1,437,269 300,099 76,739,464
27 1,737,369 1,431,671 305,698 76,433,767
28 1,737,369 1,425,967 311,401 76,122,366
CITIBANK - SERIES B OBLIGATIONS
Yearly Interest 7.59%
Amount Financed $11,716,521
Quarters Financed 120
Yearly Payments $993,154
PAYMENT TO PAYMENT TO PRINCIPLE
QUARTER PAYMENT INTEREST PRINCIPLE BALANCE
- ------------------------------------------------------------------------
$11,716,521
1 $248,288 $222,248 $26,041 11,690,480
2 243,288 221,754 26,535 11,663,946
3 248,288 221,250 27,038 11,636,908
4 248,288 220,738 27,551 11,609,357
5 248,288 220,215 28,073 11,581,283
6 248,288 219,682 28,606 11,552,677
7 248,288 219,140 29,149 11,523,529
8 248,288 218,587 29,702 11,493,827
9 248,288 218,024 30,265 11,463,562
10 248,288 217,449 30,839 11,432,723
11 248,288 216,864 31,424 11,401,299
12 248,288 216,268 32,020 11,369,279
13 248,288 215,661 32,627 11,336,652
14 248,288 215,042 33,246 11,303,405
15 248,288 214,411 33,877 11,269,528
16 248,288 213,769 34,520 11,235,009
17 248,288 213,114 35,174 11,199,834
18 248,288 212,447 35,842 11,163,993
19 248,288 211,767 36,521 11,127,471
20 248,288 211,074 37,214 11,090,257
21 248,288 210,368 37,920 11,052,337
22 248,288 209,649 38,639 11,013,697
23 248,288 208,916 39,372 10,974,325
24 248,288 208,169 40,119 10,934,206
25 248,288 207,408 40,880 10,893,326
26 248,288 206,633 41,656 10,851,670
27 248,288 205,843 42,446 10,809,224
28 248,288 205,037 43,251 10,765,973
CITIBANK - SERIES C OBLIGATIONS
Yearly Interest 8.21%
Amount Financed $2,960,736
Quarters Financed 120
Yearly Payments $ 266,398
PAYMENT TO PAYMENT TO PRINCIPLE
QUARTER PAYMENT INTEREST PRINCIPLE BALANCE
- ---------------------------------------------------------------------
$2,960,736
1 $ 66,599 $ 60,788 $ 5,812 2,954,924
2 66,599 60,668 5,931 2,948,993
3 66,599 60,547 6,053 2,942,940
4 66,599 60,422 6,177 2,936,763
5 66,599 60,295 6,304 2,930,459
6 66,599 60,166 6,433 2,924,025
7 66,599 60,034 6,566 2,917,460
8 66,599 59,899 6,700 2,910,759
9 66,599 59,762 6,838 2,903,921
10 66,599 59,621 6,978 2,896,943
11 66,599 59,478 7,122 2,889,821
12 66,599 59,332 7,268 2,882,554
13 66,599 59,182 7,417 2,875,137
14 66,599 59,030 7,569 2,867,567
15 66,599 58,875 7,725 2,859,843
16 66,599 58,716 7,883 2,851,959
17 66,599 58,554 8,045 2,843,914
18 66,599 58,389 8,210 2,835,704
19 66,599 58,221 8,379 2,827,325
20 66,599 58,049 8,551 2,818,774
21 66,599 57,873 8,726 2,810,047
22 66,599 57,694 8,906 2,801,142
23 66,599 57,511 9,089 2,792,053
24 66,599 57,324 9,275 2,782,778
25 66,599 57,134 9,466 2,773,313
26 66,599 56,940 9,660 2,763,653
27 66,599 56,741 9,858 2,753,795
28 66,599 56,539 10,061 2,743,734
EXHIBIT J
NEW BMO GUARANTY
[SEE ATTACHED]
SECOND AMENDED AND RESTATED GUARANTY
THIS SECOND AMENDED AND RESTATED GUARANTY, dated as of _______________,
2004, is made by AMERCO, a Nevada corporation (the "Guarantor"), in favor of
BANK OF MONTREAL and each of the other various financial institutions as are or
may from time to time become Lenders under the Loan Agreement pursuant to the
terms thereof and of the Participation Agreement (as hereinafter defined)
(together with their respective successors and assigns, the "Lenders"). BMO
GLOBAL CAPTIAL SOLUTIONS, INC. (f/k/a Bank of Montreal Global Capital Solutions,
Inc. and f/k/a BMO Leasing (U.S.), Inc.), a Delaware corporation, and the other
various lessors identified herein, as Lessors (as "Lessors"), BMO GLOBAL CAPTIAL
SOLUTIONS, INC., as Agent Lessor for the Lessors (in such capacity, the "Agent
Lessor"), and BANK OF MONTREAL, as the Administrative Agent under the Loan
Agreement (in such capacity, the "Administrative Agent") and as the Arranger
(the "Arranger") under the Participation Agreement (the Lenders, the Lessors,
the Agent Lessor, the Administrative Agent, the Arranger and their respective
successors and assigns, being referred to herein collectively as the
"Guaranteed Parties").
W I T N E S S E T H:
WHEREAS, the Guarantor executed and delivered that certain Guaranty
dated as of December 6, 1996 (the "Original Guaranty") in favor of the
Guaranteed Parties;
WHEREAS, pursuant to the Amended and Restated Guaranty dated as of July
27,1999, a copy of which is attached hereto as Exhibit A (the "Amended
Guaranty"), among the Guarantor and the Guaranteed Parties, the Original
Guaranty was amended and restated in its entirety; and
WHEREAS, Guarantor and the Guaranteed Parties desire to amend and
restate the Amended Guaranty (the Amended Guaranty, as amended and restated as
set forth herein and as further amended, supplemented, amended and restated or
otherwise modified from time to time after the date hereof, this "Guaranty").
ARTICLE I
DEFINITIONS; INCORPORATION BY REFERENCE; RATIFICATION
1.1 Definitions; Interpretation. Capitalized Terms used but not
otherwise defined in this Guaranty have the respective meanings specified in
Appendix A to the Participation Agreement; and the rules of interpretation set
forth in Appendix A to the Participation Agreement shall apply to this Guaranty.
1.2 Incorporation by Reference; Ratification. The Amended Guaranty
is hereby incorporated in this Master Lease by this reference as though fully
stated herein; provided, however, that certain of the terms and conditions of
the Amended Guaranty are hereby modified on the terms and conditions set forth
herein. The parties hereby ratify and confirm the continued force and effect of
this Guaranty, and agree that all terms and provisions of the Amended
Guaranty shall remain in full force and effect as originally set forth, except
as otherwise expressly modified or amended herein.
ARTICLE II
AMENDED AND RESTATED TERMS
2.1 Recitals. The five (5) paragraphs of that section of the
Amended Guaranty entitled "Witnesseth," each of which begins with "WHEREAS" are
hereby deleted in their entirety.
IN WITNESS WHEREOF, the Guaranty has caused this Guaranty to be duly
executed and delivered as of the date first above written.
AMERCO
By:________________________________
Name: _____________________________
Title:_____________________________
ACKNOWLEDGED AND AGREED
AS OF THE DATE FIRST ABOVE WRITTEN:
BANK OF MONTREAL, as Administrative Agent,
on behalf of the Lenders
By:________________________________
Name: _____________________________
Title:_____________________________
BMO GLOBAL CAPITAL SOLUTIONS, INC.,
as Agent Lessor, on behalf of the Lessors
By:________________________________
Name: _____________________________
Title:_____________________________
EXHIBIT K
NEW CITIBANK GUARANTY
[SEE ATTACHED]
AMENDED AND RESTATED PARENT GUARANTY
THIS AMENDED AND RESTATED PARENT GUARANTY, dated as of _______________,
2004, by AMERCO REAL ESTATE COMPANY, a Nevada corporation (the "Guarantor"), to
CITICORP USA, INC., as Agent for the benefit of the Note Holders and the
Certificate Holders (the "Agent"). BMO GLOBAL CAPITAL SOLUTIONS, INC., (the
"Lessor"), as Lessor under the Lease and CITIBANK, N.A., as APA Agent for the
benefit of the APA Purchasers (the "APA Agent").
Preliminary Statement
Guarantor entered into that certain Parent Guaranty dated as of
September 24,1999, a copy of which is attached hereto as Exhibit A (the
"Original Guaranty"), in favor of the Agent, the Lessor and the APA Agent.
Guarantor desires to amend and restate the Original Guaranty in its entirety
(the Original Guaranty, as amended and restated as set forth herein and as
further amended, supplemented, amended and restated or otherwise modified from
time to time after the date hereof, this "Guaranty").
ARTICLE I
DEFINITIONS; INCORPORATION BY REFERENCE; RATIFICATION
1.1 Definitions. Capitalized Terms used but not otherwise defined
in this Guaranty have the respective meanings specified in the Participation
Agreement dated as of September 24, 1999, by and among AMERCO, the Lessee, the
Lessor, the Persons named therein as Note Holders and as Certificate Holders,
the Persons named therein as APA Purchasers, and Citicorp USA, Inc., as Agent
(as the same may be amended, modified or supplemented from time to time).
1.2 Incorporation by Reference; Ratification. The Original
Guaranty is hereby incorporated in this Guaranty by this reference as though
fully stated herein; provided, however, that certain of the terms and conditions
of the Original Guaranty are hereby modified on the terms and conditions set
forth herein. The parties hereby ratify and confirm the continued force and
effect of this Guaranty, and agree that all terms and provisions of the Original
Guaranty shall remain in full force and effect as originally set forth, except
as otherwise expressly modified or amended herein.
ARTICLE II
AMENDED AND RESTATED TERMS
2.1 Preliminary Statement. The entire three paragraphs (Paragraph
A, B and C) of the section of the Original Guaranty entitled "Preliminary
Statement" is hereby deleted in its entirety.
IN WITNESS WHEREOF, the parties have caused this Master Lease to be
duly executed and delivered as of the date first above written.
GUARANTOR
AMERCO
By:________________________________
Name: _____________________________
Title:_____________________________
EXHIBIT L
NEW AMERCO NOTES INDENTURE
[TO BE FILED ON OR BEFORE THE EXHIBIT FILING DATE]
EXHIBIT M
NEW TEAM LOAN B NOTES INDENTURE
[TO BE FILED ON OR BEFORE THE EXHIBIT FILING DATE]
EXHIBIT N
SAC HOLDING SENIOR NOTES INDENTURE
[TO BE FILED ON OR BEFORE THE EXHIBIT FILING DATE]
EXHIBIT O
RESTATED ARTICLES OF INCORPORATION OF REORGANIZED AMERCO
[SEE ATTACHED]
PROPOSED AMENDMENT OF THE
RESTATED ARTICLES OF INCORPORATION
OF
AMERCO
Article 5 of the Restated Articles of Incorporation of AMERCO is amended in its
entirety to read as follows:
5. The total number of shares of common stock which this corporation is
authorized to issue is (i) One Hundred and Fifty Million (150,000,000) shares of
common stock with a par value of Twenty-five Cents ($0.25) per share ("Common
Stock"), and (ii) One Hundred and Fifty Million (150,000,000) shares of common
stock ("Serial Common Stock"), with the Board of Directors having authority to
issue shares of Serial Common Stock in one or more series (the number of shares
of each series being determined by the Board of Directors), with or without par
value, and with such voting powers, designations, preferences, limitations,
restrictions, and relative rights as shall be stated or expressed in the
resolution regarding such Serial Common Stock adopted by the Board of Directors
pursuant to the authority expressly vested in it by this provision of the
Articles of Incorporation, or any amendment thereto. For purposes of these
Articles of Incorporation, the term "common stock" includes Common Stock and
Serial Common Stock. The voting powers, designations, preferences, limitations,
restrictions, and relative rights of the Series A Common Stock are described on
Exhibit A attached hereto. The voting powers, designations, preferences,
limitations, restrictions, and relative rights of the Series B Common Stock are
described on Exhibit B attached hereto.
In addition to the common stock authorized to be issued by the
foregoing paragraph, this corporation is authorized to issue Fifty Million
(50,000,000) shares of Preferred Stock with the Board of Directors having
authority to issue such shares in one or more series (the number of shares of
each series being determined by the Board of Directors), with or without par
value, and with such voting powers, designations, preferences limitations,
restrictions, and relative rights as shall be stated or expressed in the
resolution regarding such preferred stock adopted by the Board of Directors
pursuant to the authority expressly vested in it by this provision of the
Articles of Incorporation, or any amendment thereto. The voting powers,
designations, preferences, limitations, restrictions, and relative rights of the
Series A Preferred Stock are described on Exhibit C attached hereto. The voting
powers, designations, preferences, limitations, restrictions, and relative
rights of the Series B Preferred Stock are described on Exhibit D attached
hereto.
Pursuant to 1123(a)(6) of Title 11 of the United States Code, 11 U.S.C.
Sections 101, et seq., and notwithstanding any provision to the contrary in this
Article 5, the Board shall not authorize the issuance of any non-voting shares
of Common Stock, Serial Common Stock or Preferred Stock.
EXHIBIT-A
AMERCO
SERIES A COMMON STOCK
(a) Designation. A series of Serial Common Stock (as defined in
the Articles of Incorporation) is hereby designated "Series A Common Stock." The
number of shares constituting the Series A Common Stock is 10,000,000. Shares of
the Series A Common Stock shall have a par value of $0.25.
(b) Dividends and Distributions. Shares of the Series A Common
Stock shall be entitled to receive such dividends and distributions as may be
declared by the Board of Directors from time to time and shall be payable, when
and as declared by the Board of Directors.
(c) Conversion. The holders of shares of the Series A Common Stock
shall not have any rights to convert such shares into or exchange such shares
for shares of any other class or classes or of any other series of any class or
classes of stock [ILLEGIBLE] the Corporation.
(d) Voting. The shares of the Series A Common Stock shall be
entitled to one vote per share.
(e) Liquidation Rights. Upon the dissolution, liquidation, or
winding up of the affairs of the Corporation, whether voluntary or involuntary,
the Series A Common Stock shall be entitled to distribution of the assets of the
Company on a pari passu basis with the Company's common stock, $0.25 par value.
EXHIBIT B
AMERCO
SERIES B COMMON STOCK
(a) Designation. A series of Serial Common Stock (as defined in
the Articles of Incorporation) is hereby designated "Series B Common Stock." The
number of shares constituting the Series B Common Stock is 10,000,000. Shares of
the Series B Common Stock shall have a par value of $0.25.
(b) Dividends and Distributions. Shares of the Series B Common
Stock shall be entitled to receive such dividends and distributions as may be
declared by the Board of Directors from time to time on a pari passu basis with
the Corporation's Common Stock and Series A Common Stock and shall be payable,
when and as declared by the Board of Directors.
(c) Conversion. The holders of shares of the Series B Common Stock
shall not have any rights to convert such shares into or exchange such shares
for shares of any other class or classes or of any other series of any class or
classes of stock of the Corporation.
(d) Voting. The shares of the Series B Common Stock shall be
entitled to one-tenth (1/10) of one vote per share.
(e) Liquidation Rights. Upon the dissolution, liquidation, or
winding up of the affairs of the Corporation, whether voluntary or involuntary,
the Series B Common Stock shall be entitled to distribution of the assets of the
Corporation on a pari passu basis with the Corporation's Common Stock and Series
A Common Stock.
EXHIBIT C
AMERCO
SERIES A PREFERRED STOCK;
(a) Designation. A series of preferred stock is hereby designated,
"Series A 8 1/2% Preferred Stock." The number of shares constituting the Series
A Preferred Stock is 6,100,000. Shares of the Series A Preferred Stock shall
have a liquidation preference of $25.00 per share and shall have no par value.
(b) Dividend Rate.
(i) Shares of the Series A Preferred Stock shall be
entitled to receive dividends at a fixed annual rate of $2.125 per
share: Such dividends shall be cumulative from the date of original
issue of such shares and shall be payable, when and as declared by the
Board of Directors, quarterly for each of the quarters ending February,
May, August, and November of each year, payable in arrears on the
first business day that is not a legal holiday of each succeeding
March, June, September, and December, commencing December 1, 1993.
Each such dividend shall be paid to the holders of record of Shares of
the Series A Preferred Stock as they appear on the stock records of the
Corporation on the applicable record date, not exceeding 15 days
preceding the payment date thereof, as shall be fixed by the Board of
Directors. Dividends on account of arrears for any past dividend
periods may be declared and paid at any time, without reference to any
regular dividend payment date, to holders of record on such date as may
be fixed by the Board of Directors, which shall not exceed 15 days
preceding such dividend payment date thereof.
(ii) No dividends shall be declared or paid or set apart
for payment on any shares of any class or classes of stock of the
Corporation of any series thereof ranking, as to dividends, on a
parity with or junior to the Series A Preferred Stock for any period
unless full cumulative dividends have been or contemporaneously are
declared and paid, or declared and a sum sufficient for the payment
thereof set apart for such payment, on the Series A Preferred Stock for
all dividend payment periods terminating on or prior to the date of
payment of such dividend. When dividends are not paid in full, as
aforesaid, upon the shares of the Series A Preferred Stock and any
other shares of any class or classes of stock or series thereof ranking
on a parity as to dividends with the Series A Preferred Stock, all
dividends declared upon shares of the Series A Preferred Stock and any
other shares of such class or classes of series thereof ranking on a
parity as to dividends with the Series A Preferred Stock shall be
declared pro rata so that the amount of dividends declared per share of
the Series A Preferred Stock and such other shares shall in all cases
bear to each other the same ratio that accrued dividends per share or
the shares of the Series A Preferred Stock and such other shares bear
to each other. Holders of shares of the Series A Preferred Stock shall
not be entitled to any dividend, whether payable in cash, property or
stock, in excess of full cumulative dividends, as herein provided, on
the Series A Preferred Stock. No interest, or sum of money in lieu of
interest, shall be payable in respect of any dividend payment or
payments on the Series A Preferred Stock that may be in arrears.
(iii) So long as any shares of the Series A Preferred Stock
are outstanding, no dividend (other than a dividend in common stock or
in any other shares ranking junior to the Series A Preferred Stock as
to dividends and upon Liquidation (as defined in subsection (f) (i) and
other than as provided in paragraph (ii) of this subsection (b)) shall
be
C-2
declared or paid or set aside for payment or other distribution
declared or made upon the shares of any class or classes of stock of
the Corporation or any series thereof ranking junior to or on a parity
with the Series A Preferred Stock as to dividends or upon Liquidation
nor shall any of the shares of any class or classes of stock of the
Corporation or any series thereof ranking junior to or on a parity with
the Series A Preferred Stock as to dividends or upon Liquidation be
redeemed, purchased, or otherwise acquired or any consideration paid
(or any moneys be paid to or made available for a sinking fund for the
redemption of any such shares) by the Corporation, or any subsidiary
thereof (except by conversion into or exchange for shares of the
Corporation ranking junior to the Series A Preferred Stock as to
dividends and upon liquidation), unless, in each case, the full
cumulative dividends on all outstanding shares of the Series A
Preferred Stock shall have been or contemporaneously are declared and
paid, or declared and a sum sufficient for payment thereof is set apart
for payment, for all past dividend payment periods.
(iv) Dividends payable on the Series A Preferred Stock for
any period less than a full quarterly dividend period, and for the
dividend period beginning on the date of issuance of the shares of the
Series A Preferred Stock, shall be computed on the basis of a 360-day
year consisting of 12 30-day months. The amount of dividends payable on
shares of the Series A Preferred Stock for each full quarterly dividend
period shall be computed by dividing by 4 the annual rate per share set
forth above in subsection (b) (i).
(c) Redemption.
(i) The shares of the Series A Preferred Stock shall not
be redeemable prior to December 1, 2000. On and after December 1, 2000,
the Corporation, at its option, may redeem shares of the Series A
Preferred Stock, as a whole or in part, for cash, at any time or from
time to time, at a redemption price of $25.00 per share plus, in each
case, accrued and unpaid dividends thereon to the date fixed for
redemption.
(ii) In the event that fewer than all the outstanding
shares of the Series A Preferred Stock are to be redeemed, the number
of shares to be redeemed shall be determined by the Board of Directors
and the shares to be redeemed shall be determined by lot or pro rata as
may be determined by the Board of Directors or by any other method as
may be determined by the Board of Directors in its sole discretion to
be equitable.
C-3
(iii) In the event the Corporation shall redeem shares of
the Series A Preferred Stock, notice of such redemption shall be given
by first class mail, postage prepaid, mailed not less than 30 nor more
than 60 days prior to the redemption date, to each holder of record of
the shares to be redeemed, at such holder's address as the same appears
on the stock records of the Corporation, or by publishing notice
thereof in The Wall Street Journal or The New York Times, or, if,
neither such newspaper is then being published, any other daily
newspaper of national circulation (each, an "Authorized Newspaper"). If
the Corporation elects to provide such notice by publication, it shall
also promptly mail notice of such redemption to each holder of the
shares of the Series A Preferred Stock to be redeemed. Each such mailed
or published notice shall state: (v) the redemption date; (w) the
number of shares of the Series A Preferred Stock to be redeemed and, if
fewer than all the shares held by such holder are to be redeemed, the
number of such shares to be redeemed from such holder; (x) the
redemption price; (y) the place or places where certificates for such
shares are to be surrendered for payment of the redemption price; and
(z) that dividends on the shares to be redeemed will cease to accrue on
such redemption date. No defect in the notice of redemption or in the
mailing thereof shall affect the validity of the redemption
proceedings, and the failure to give notice to any holder of shares of
the Series A Preferred Stock to be so redeemed shall not effect the
validity of the notice given to the other holders of shares of the
Series A Preferred Stock, to be so redeemed.
(iv) Notice having been mailed as aforesaid, then,
notwithstanding that the certificates evidencing the shares of the
Series A Preferred Stock shall not have been surrendered, from and
after the redemption date (unless default shall be made by the
Corporation in providing money for the payment of the redemption price)
dividends on the shares of the Series A Preferred Stock so called for
redemption shall cease to accrue, and said shares shall no longer be
deemed to be outstanding, and all rights of the holders thereof as
stockholders (including dividend and voting rights) of the Corporation
(except the right to receive from the Corporation the redemption price)
shall cease. Upon surrender in accordance with said notice of the
certificates for any shares so redeemed (properly endorsed or assigned
for transfer, if the Board of Directors shall so require and the notice
shall so state), such shares shall be redeemed by the Corporation at
the redemption price aforesaid. In case fewer than all the shares
represented by any such certificate are redeemed, a new certificate
shall be
C-4
issued representing the unredeemed shares without cost to the holder
thereof.
(v) Any shares of the Series A Preferred Stock that shall
at any time have been redeemed shall, after such redemption, in the
discretion of the Board of Directors of the Corporation, be (x) held in
treasury or (y) resume the status of authorized but unissued shares of
preferred stock, without designation as to series, until such shares
are once more designated as part of a particular series by the Board of
Directors.
(vi) Notwithstanding the foregoing provisions of this
subsection (c), if any dividends on the Series A Preferred Stock are in
arrears, no shares of the Series A Preferred Stock shall be redeemed
unless all outstanding shares of the Series A Preferred Stock are
simultaneously redeemed, and the Corporation shall not, and shall not
permit any subsidiary thereof to, purchase or otherwise acquire any
shares of the Series A Preferred Stock; provided, however, that the
foregoing shall not prevent the purchase or acquisition of shares of
the Series A Preferred Stock pursuant to a purchase or exchange offer
made on the same terms to holders of all outstanding shares of the
Series A Preferred Stock.
(d) Conversion. The holders of shares of the Series A Preferred
Stock shall not have any rights herein to convert such shares into or exchange
such shares for shares of any other class or classes or of any other series of
any class or classes of stock of the Corporation.
(e) Voting. The shares of the Series A Preferred Stock shall not
have any voting powers either general or special, except as required by law and
except that:
(i) So long as any of the shares of the Series A
Preferred Stock are outstanding, the consent of the holders of at least
two-thirds of all the shares of the Series A Preferred Stock at the
time outstanding, given in person or by proxy, either in writing or by
a vote at a meeting called for the purpose at which the holders of
shares of the Series A Preferred Stock shall vote together as a
separate class, shall be necessary for authorizing, affecting or
validating the amendment, alteration, or repeal of any of the
provisions of the Articles of Incorporation of the Corporation or of
any certificate amendatory thereof or supplemental thereto (including
any certificate of amendment or any similar document relating to any
series of preferred stock) that would adversely affect the powers,
preferences, or special rights of the Series A Preferred Stock,
including the creation or authorization of any class of stock that
ranks senior to the Series A Preferred Stock with respect to dividends
or upon Liquidation. Any
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amendment or any resolution or action of the Board of Directors that
would create or issue any series of preferred stock out of the
authorized shares of preferred stock, or that would authorize, create,
or issue any shares or class of stock (whether or not already
authorized), ranking junior to or on a parity with the Series A
Preferred Stock with respect to the payment of dividends and
distributions and distributions upon any Liquidation, shall not be
considered to affect adversely the powers, preferences, or special
rights of the outstanding shares of the Series A Preferred Stock;
(ii) In the event that the Corporation shall have failed
to declare and pay or set apart for payment in full the dividends
accumulated on the outstanding shares of the Series A Preferred Stock
for any six quarterly dividend payment periods, whether or not
consecutive, and all such preferred dividends remain unpaid (a
"Preferred Dividend Default"), the holders of outstanding shares of the
Series A Preferred Stock, voting together as a class with the holders
of all other series of preferred stock then entitled to vote on the
election of such directors, shall be entitled to elect two directors to
the Board of Directors of the Corporation until the full dividends
accumulated on all outstanding shares of the Series A Preferred Stock
have been declared and paid in full. Upon the occurrence of a Preferred
Dividend Default, the Board of Directors shall within 10 business days
(any day other than a day that is a Saturday, Sunday, or legal holiday
on which banks are authorized to close in New York, New York) of such
default call a special meeting of the holders of shares of the Series A
Preferred Stock and all other holders of a series of preferred stock
who are then entitled to participate in the election of such two
directors for the purpose of electing the two directors provided by the
foregoing provisions; provided that, in lieu of holding such meeting,
the holders of record of a majority of the outstanding shares of the
Series A Preferred Stock and all other series of preferred stock who
are then entitled to participate in the election of such two directors
may, by action taken by written consents permitted by law and the
Articles of Incorporation and the Bylaws of the Corporation, elect such
two directors. If and when all accumulated dividends on the shares of
the Series A Preferred Stock have been declared and paid or set aside
for payment in full, the holders of shares of the Series A Preferred
Stock shall be divested of the special voting rights provided by this
paragraph, subject to revesting in the event of each and every
subsequent Preferred Dividend Default. Upon termination of such special
voting rights attributable to all holders of shares of the Series A
Preferred Stock and any other series of
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preferred stock, each director elected by the holders of shares of the
Series A Preferred Stock and the holders of any other series of
preferred stock (hereinafter referred to as a "Preferred Stock
Director") pursuant to such special voting rights shall, without
further action, be deemed to have resigned, subject always to the
election of directors pursuant to the foregoing provisions in case of a
future Preferred Dividend Default. Any Preferred Stock Director may be
removed at any time with or without cause by, and shall not be removed
otherwise than by, the vote of the holders of record of two-thirds of
the outstanding shares of the Series A Preferred Stock and all other
series of preferred stock who were entitled to participate in such
Preferred Stock Director's election, voting as a separate class, at a
meeting called for such purpose or by written consent as, and to the
extent, permitted by law and the Articles of Incorporation and the
Bylaws of the Corporation. So long as a Preferred Dividend Default
shall continue, any vacancy in the office of a Preferred Stock Director
shall be filled by written consent of the Preferred Stock Director
remaining in office or, if none remains in office, by vote of the
holders of record of a majority of the outstanding shares of the Series
A Preferred Stock and all other series of preferred stock who are then
entitled to participate in the election, of such Preferred Stock
Directors as provided above. As long as a Preferred Dividend Default
shall continue, holders of shares of the Series A Preferred Stock shall
not, as such stockholders, be entitled to vote on the election or
removal of directors other than Preferred Stock Directors, but shall
not be divested of any other voting rights provided to such
stockholders by law with respect to any other matter to be acted upon
by the stockholders of the Corporation. The Preferred Stock Directors
shall each be entitled to one vote per director on any matter.
(f) Liquidation Rights.
(i) Upon the dissolution, liquidation, or winding up of
the affairs of the Corporation, whether voluntary or involuntary
(collectively, a "Liquidation" ), after payment or provision for
payment has been made of the debts and other liabilities of the
Corporation and payment or provision for payment has been made on all
amounts required to be paid in respect of all outstanding shares of any
class or classes of stock of the Corporation or series thereof ranking
senior to the shares of the Series A Preferred Stock, the holders or
the shares of the Series A Preferred Stock shall be entitled, subject
to paragraph (iv) of this subsection (f), to receive out of the assets
of the Corporation, before any payment or distribution
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shall be made on common stock or on any other class of stock ranking
junior to preferred stock upon Liquidation, the amount of $25.00 per
share, plus a sum equal to all dividends (whether or not earned or
declared) on such shares accrued and unpaid thereon to the date of
final distribution.
(ii) Neither the sale, transfer, or lease of all or any
part of the property or business of the Corporation, nor the merger or
consolidation of the Corporation, into or with any other corporation or
the merger or consolidation of any other corporation into or with the
Corporation, shall be deemed to be a Liquidation for the purposes of
this subsection (f).
(iii) After the payment to the holders of the shares of the
Series A preferred Stock of the full preferential amounts provided for
in this subsection (f), the holders of the Series A Preferred Stock as
such shall have no right or claim to any of the remaining assets of the
Corporation and the shares of the Series A Preferred Stock shall no
longer be deemed to be outstanding or be entitled to any other powers,
preferences, rights, or privileges, including voting rights, and such
shares shall be surrendered for cancellation to the Corporation.
(iv) In the event the assets of the Corporation available
for distribution to the holders of shares of the Series A Preferred
Stock upon any Liquidation shall be insufficient to pay in full all
amounts to which such holders are entitled pursuant to paragraph (i)
of this subsection (f), no such distribution shall be made on
account of any shares of any series of preferred stock ranking on a
parity with the shares of the Series A Preferred Stock upon such
Liquidation unless proportionate distributive amounts shall be paid on
account of the shares of the Series A Preferred Stock, ratably, in
proportion, to the full distributable amounts to which holders of all
such parity shares are respectively entitled upon such Liquidation.
(g) Priority. Any shares of any class or classes of the
Corporation or series thereof shall be deemed to ranks:
(i) Prior to the shares of the Series A Preferred Stock,
either as to dividends or upon Liquidation, if the holders of such
class or classes shall be entitled to the receipt of dividends or of
amounts distributable upon Liquidation of the Corporation, in
preference or priority to the holders of shares of the Series A
Preferred Stock:
(ii) On a parity with shares of the Series A Preferred
Stock, either as to dividends or upon
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Liquidation, whether or not the dividend rates, dividend payment dates,
or redemption or Liquidation prices per share or sinking fund
provisions, if any, be different from those of the Series A Preferred
Stock, if the holders of such shares shall be entitled to the receipt
of dividends or of amounts distributable upon Liquidation of the
Corporation, in proportion to their respective dividend rates or
Liquidation prices, without preference or priority, one over the
other, as between the holders of such shares and the holders of shares
of the Series A Preferred Stock; and
(iii) Junior to shares of the Series A Preferred Stock,
either as to dividends or upon Liquidation, if such class is common
stock or if the holders of shares of the Series A Preferred Stock shall
be entitled to receipt of dividends or of amounts distributable upon
Liquidation of the Corporation, in preference or priority to the
holders of shares of such class or classes.
(h) Sinking or Retirement Fund. The shares of the Series A
Preferred Stock shall not be entitled to the benefit of a sinking or retirement
fund to be applied to the purchase or redemption of such shares.
(i) Miscellaneous.
(i) Subject to paragraph (iii) of subsection (c) above,
all notices referred to herein shall be in writing, and all notices
hereunder shall be deemed to have been given upon the earlier of
receipt thereof or three business days after the mailing thereof if
sent by first-class mail with postage prepaid, addressed, if to the
Corporation, to its offices at 1325 Airmotive Way, Suite 100, Rono,
Nevada 89502-3239 (Attention: Secretary), if to a holder, to the
address thereof shown on the security register maintained by the
registrar for the Series A Preferred Stock, or to such other address as
the Corporation or holder, as the case may be, shall have designated by
notice similarly given.
(ii) In the event a holder of shares of the Series A
Preferred Stock shall not by written notice designate the name to whom
payment upon redemption of any shares of the Series A Preferred Stock
should be made or the address to which the certificate or certificates
representing such shares, or such payment, should be sent, the
Corporation shall be entitled to register such shares, and make such
payment, in the name of the holder of such shares as shown on the
records of the Corporation and to send the certificate or certificates
representing such shares, or such payment, to the address of such
holder shown on the records of the Corporation.
C-9
EXHIBIT D
AMERCO
SERIES B PREFERRED STOCK
The Series Designated as Series B Preferred Stock (the "Series B
Preferred"), will consist of 100,000 shares and will have the designations,
preferences, voting powers, relative, participating, optional or other special
rights and privileges, and the qualifications, limitations and restrictions
described below. Shares of the Series B Preferred shall have liquidation rights
as provided in Section 2 and shall have no par value. Certain capitalized terms
used below have the meanings given in Section 11.
1. Dividends and Distributions.
a. Regular Dividends. Subject to the prior rights of the holders
of Senior Shares, if any, the Holder, in preference to the holders of Junior
Shares, shall be entitled, in conjunction with any provision then being made for
the holders of Parity Shares, to receive, when, as and if declared by the Board
of Directors, out of any funds of the Corporation lawfully available for the
payment of dividends, payable on the last day of each Payment Period, cumulative
cash dividends at, but not exceeding, (i) the product of the Conversion Value
times the Floating Rate, plus (ii) any Additional Amounts, payable on the last
day of each Payment Period following the date of this Certificate. If the stated
dividends are not paid in full, the Series B Preferred and all Parity Shares
shall share [ILLEGIBLE] in the payment of dividends, including accumulations
thereof, if any, on such shares in accordance with the sums that would be
payable on such shares if all dividends were paid in full.
b. Notice. The Holder will notify the Corporation of any event
occurring after the date of this Certificate which will entitle the Holder to
receive any Additional Amounts as promptly as practicable after it obtains
knowledge thereof but in any event within thirty (30) days after it obtains
knowledge thereof and determines to request such compensation. Determinations
and allocations by the Holder for purposes hereof of the effect of any
Regulatory Change on its costs of purchasing or holding the Series B Preferred
or on amounts receivable by it in respect of the Series B Preferred and of the
additional amounts required to compensate the Holder in respect of any
Additional Amounts, shall be prima facie valid provided that such determinations
and allocations are made on a reasonable basis.
c. Priority. Any and all dividends payable on the Series B
Preferred shall be paid in preference and in priority to the payment of
dividends or distributions on any Junior Shares. So long as any Series B
Preferred shares are outstanding, no dividends whatever shall be paid or
declared, nor shall any distribution be made, on any Junior Shares, other than a
dividend or distribution payable in Junior Shares, nor shall the Corporation or
any subsidiary of the Corporation purchase, redeem or otherwise acquire for a
consideration any Junior Shares, unless full cumulative dividends have been or
contemporaneously are declared and paid, or declared and
a sum sufficient for the payment thereof set apart for such payment, on the
Series B Preferred for all Payment Periods terminating on or prior to the date
of payment of such purchase, redemption or acquisition.
2. Liquidation Rights.
a. Generally. In the event of any liquidation, dissolution or
winding up of the Corporation, whether voluntary or involuntary, before any
amount shall be paid to the holders of any Junior Shares, the Holder of the
Series B Preferred shall be paid first out of the assets of the Corporation
available for distribution to holders of its capital stock an amount per share
equal to, but not exceeding, (i) the Conversion Value, as appropriately adjusted
to reflect any stock split, stock dividend, combination, recapitalization and
the like of the Series B Preferred, plus (ii) all accrued but unpaid dividends
(including any interest accrued thereon calculated through the date of
liquidation (the "Liquidation Date")). If, upon the occurrence of a liquidation,
dissolution or winding up, the assets and funds thus distributed to the Holder
shall be insufficient to permit the payment to the Holder of its full
liquidation preferences, then the entire assets and funds of the Corporation
legally available for distribution to the holders of capital stock (other than
Senior Shares) shall be distributed ratably to the Holder and the holders of any
Parity Shares.
b. Events Deemed a Liquidation. For purposes of this Section 2,
the Holder may elect to have treated at a liquidation, dissolution or winding up
of the Corporation the consolidation or merger of the Corporation with or into
any other corporation or the sale or other transfer in a single transaction or a
series of related transactions of all or substantially all of the assets of the
Corporation, or any other reorganization of the Corporation, unless the
stockholders of the Corporation immediately prior to any such transaction are
holders of a majority of the voting securities of the surviving or acquiring
corporation immediately thereafter (and for purposes of this calculation equity
securities which any stockholder or the Corporation owned immediately prior to
such merger or consolidation as a stockholder of another party to the
transaction shall be disregarded).
c. Priority. Any amounts payable on the Series B Preferred in the
event of any liquidation, dissolution or winding up of the Corporation shall be
paid in preference and in priority to the payment of any amounts payable on
Junior Shares.
3. Conversion. The Holder has conversion rights as follows (the
"Conversion Rights"):
a. Right to Convert. Upon each of the following to occur from
time to time: (i) August 31, 1997, and for 10 Business Days thereafter; (ii) the
first day of each fiscal quarter of the Corporation occurring after August 31,
1997, and for 10 Business Days after the first day of each such fiscal quarter;
(iii) the expiration of ten days after the occurrence of an Event of
Noncompliance under the Stock Purchase Agreement that is not then cured, and at
any time thereafter; (iv) any dividends on the Series B Preferred becoming in
arrears, and at any time thereafter; (v) the Corporation no longer holding more
than 50% of the outstanding stock and assets of any of [ILLEGIBLE] Holdings,
Inc., Oxford Life Insurance Company or Republic Western Insurance Company, and
at any time thereafter: or (vi) the Corporation or any of its subsidiaries
D-2
completing any Excess Equity Offering, and at any time thereafter, then each
share of Series B Preferred shall be convertible; at the option of the Holder,
into either:
i. the number of fully paid and nonassessable shares of
Series B Common Stock that results from dividing the Conversion Price per share
in effect at the time of conversion into the per share Conversion Value but no
more than the maximum amount authorized and available for issuance; or
ii. all of the shares of capital stock of Picacho then
outstanding.
Upon conversion, all accrued but unpaid dividends (including interest accrued
thereon calculated as of the Conversion Date) on the Series B Preferred shall be
paid in cash, to the extent permitted by applicable law.
b. Conversion Price and Conversion Value. The initial Conversion
Price of the Series B Preferred shall be $25.00 per share, and the initial
Conversion Value of the Series B Preferred shall be $1,000.00 per share. The
initial Conversion Price of the Series B Preferred shall be subject to
adjustment from time to time as provided in Section 3(d).
c. Mechanics of Conversion. To convert any shares of Series B
Preferred, the Holder shall surrender the certificate or certificates therefor,
duly endorsed, at the principal office of the Corporation, or notify the
Corporation in writing that such certificates have been lost, stolen or
destroyed and agree to indemnify the Corporation from any loss incurred by it
in connection with such certificates, and shall give written notice (the
"Conversion Notice") to the Corporation at such office that the Holder elects to
convert the same, specifying whether the Series B Preferred shares are to be
converted into Series B Common Stock or shares of Picacho. As soon as
practicable (but not more than one Business Day) after such delivery, or after
such notification, the Corporation shall issue and deliver at such office to the
Holder, unless the Corporation shall elect instead to redeem the Series B
Preferred as provided in Section 5:
i. A certificate or certificates for the number of
shares of Series B Common Stock to which the Holder shall be entitled if the
Holder has elected to convert the Series B Preferred into Series B Common Stock;
or
ii. A certificate or certificates for all of the
outstanding shares of Picacho, if the Holder has elected to convert the Series B
Preferred into Picacho, stock;
and, in either case, a check payable to the Holder in the amount of any accrued
or declared but unpaid dividends payable pursuant to Section 1, if any. Such
conversion shall be deemed to have been made immediately prior to the close of
business on the date of such surrender of the shares of Series B Preferred to be
converted or of the notification of lost certificates and the persons entitled
to shares of Series B Common Stock or Picacho stock issuable upon such
conversion shall be treated for all purposes as the record holder or holders of
such shares on such date (the "Conversion Date"). In the event of a notice of
redemption of any shares of Series B Preferred pursuant to Section 5, the
Conversion Rights shall terminate at the close of business on the
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Redemption Date, unless default is made in payment of the redemption price, in
which case the Conversion Rights for such shares shall continue until such
payment.
d. Adjustments to Conversion Price.
i. Adjustments of Conversion Price. The
Conversion Price of the Series B Preferred shall be adjusted if the Corporation
issues or is deemed to issue Additional Shares of Common Stock for a
consideration per share that is less than the Conversion Price for the Series B
Preferred in effect on the date of, and immediately prior to, such issue or
deemed issue.
ii. Deemed Issue of Additional Shares of Common
Stock. If the Corporation at any time or from time to time after the date of
this Certificate issues any Options or Convertible Securities or shall fix a
record date for the determination of holders of any class of securities entitled
to receive any such Options or Convertible Securities, then the maximum number
of shares (as set forth in the instrument relating thereto without regard to any
provisions contained therein for a subsequent adjustment of such number) of
Common Stock issuable upon the exercise of such Options or, in the case of
Convertible Securities and Options therefor, the exercise of such Options and
conversion or exchange of such Convertible Securities, shall be deemed to be
Additional Shares of Common Stock issued as of the time of such issue or, in
case such a record date shall have been fixed, as of the close of business on
such record date, provided that Additional Shares of Common Stock shall not be
deemed to have been issued unless the consideration per share (determined
pursuant to Section 3(d)(iv)) of such Additional Shares of Common Stock would be
less than the Conversion Price in effect on date of and immediately prior to
such issue, or such record date, as the case may be, and provided further that
in any such case in which Additional Shares of Common Stock are deemed to be
issued:
(1) except as provided in Section 5(d)(ii)(2),
no further adjustment in the Conversion Price shall be made upon the subsequent
issue of Convertible Securities or shares of Common Stock upon the exercise of
such Options or conversion or exchange of such Convertible Securities;
(2) if such Options or Convertible Securities by
their terms provide, with the passage of time or otherwise, for any change in
the consideration payable to the corporation, or change in the number of shares
of Common Stock issuable, upon the exercise, conversion or exchange thereof
(other than under or by reason of provisions designed to protect against
[ILLEGIBLE], the Conversion Price computed upon the original issue thereof (or
upon the occurrence of a record date with respect thereto) and any subsequent
adjustments based thereon, shall, upon any such increase or decrease becoming
effective, be recomputed to reflect such increase or decrease insofar as it
affects such Options or the rights of conversion or exchange under such
Convertible Securities; and
(3) no readjustment pursuant to clause (2) above
shall have the effect of increasing the Conversion Price.
D-4
iii. Adjustment of Conversion Price Upon
Issuance of Additional Shares of Common Stock. Except as provided by Section
3(d)(ii)(2). In the event the Corporation shall issue Additional Shares of
Common Stock (including Additional Shares of Common Stock deemed to be issued
pursuant to Section 3(d)(ii) without consideration or for a consideration per
share less than the Conversion Price of the Series B Preferred in effect on the
date of and immediately prior to such issue, then and in each such event the
Conversion Price of the Series B Preferred shall be reduced to the price
(calculated to the nearest cent) [ILLEGIBLE] which the Additional Shares of
Common Stock are issued.
iv. Determination of Consideration. For purposes
of this Section 3(d), the consideration received by the Corporation for the
issue of any Additional Shares of Common Stock shall be determined after payment
of all commissions paid or discounts given in connection with the issuance or
deemed issuance of the shares and shall be computed as follows:
(1) Cash and Property: Such consideration shall:
(a) insofar as it consists of cash, be
computed at the aggregate amount of cash received by the Corporation;
(b) insofar as it consists of property
other than cash, be computed at the fair value thereof at the time of such
issue, as determined by the Board of Directors in the good faith exercise of its
reasonable business judgment: and
(c) in the event Additional Shares of
Common Stock are issued together with other shares or securities or other assets
of the Corporation for consideration that covers both, be the proportion of such
consideration so received for the Additional Shares of Common Stock, computed as
provided in clauses (a) and (b) above, as determined by the Board of Directors
in the good faith exercise of its reasonable business judgment.
(2) Options and Convertible Securities. The
consideration per share received by the Corporation for Additional Shares of
Common Stock deemed to have been issued pursuant to Section 3(d)(ii), relating
to Options and Convertible Securities, shall be determined by dividing;
(a) the total amount, if any, received
or receivable by the Corporation as consideration for the issue of such Options
or convertible Securities, plus the minimum aggregate amount of additional
consideration (as set forth in the instruments relating thereto, without regard
to any provision contained therein for a subsequent adjustment of such
consideration) payable to the Corporation upon the exercise of such Options or
the conversion or exchange of such Convertible Securities, or in the case of
Options for Convertible Securities, the exercise of such Options for Convertible
Securities and the conversion or exchange of such Convertible Securities, by
(b) the maximum number of shares of
Common Stock (as set forth in the instruments relating thereto, without regard
to any provision contained, therein for a
D-5
subsequent adjustment of such number) issuable upon the exercise of such Options
or the conversion or exchange of such Convertible Securities.
v. Other Adjustments.
(a) Subdivisions, Combinations, or
Consolidations of Series B Common Stock. In the event the outstanding shares of
Series B Common Stock shall be subdivided, combined or consolidated, by stock
split, stock dividend, combination or like event, into a greater or lesser
number of shares of Series B Common Stock, the Conversion Price of the Series B
Preferred in effect immediately prior to such subdivision, combination,
consolidation or stock dividend shall, concurrently with the effectiveness of
such subdivision, combination or consolidation, be proportionately adjusted to
achieve the result that, upon conversion of the Series B Preferred into Series B
Common Stock, the Holder shall receive, as nearly as possible, the same
percentage of the outstanding shares of Series B Common Stock that it would have
had the Series B Preferred been converted immediately prior to such subdivision,
combination or consolidation.
(b) Reclassifications. In the case, at
any time after the date of this Certificate, of any capital reorganization or
any reclassification of the stock of the corporation (other than as a result of
a subdivision, combination or consolidation of shares), or the consolidation or
merger of the Corporation with or into another person (other than a
consolidation or merger (A) in which the Corporation is the continuing entity
and that does not result in any change in the Common Stock or (B) that is
treated as a liquidation pursuant to Section 2(b)), the Conversion Price shall
be adjusted so that the shares of the Series B Preferred shall, after such
reorganization, reclassification, consolidation or merger, be convertible into
the kind and number of shares of stock or other securities or property of the
Corporation or otherwise to which the Holder would have been entitled if
immediately prior to such reorganization, reclassification, consolidation or
merger if the Holder had converted the shares of the Series B Preferred into
Series B Common Stock. The provision of this clause 3(d)(v)(b) shall similarly
apply to successive reorganizations, reclassifications, consolidations or
mergers.
e. No Adjustments to Conversion Value. The Corporation shall not
effect any stock split, stock dividend, combination or recapitalization of the
Series B Preferred and, therefore, the Conversion Value of the Series B
Preferred will not be adjusted.
f. Certificate as to Adjustments. Upon the occurrence of each
adjustment or readjustment of the Conversion Price of the Series B Preferred
pursuant to this Section 3, the Corporation at its expense shall promptly
compare such adjustment or readjustment in accordance with the terms of this
Certificate and furnish to the Holder a Certificate setting forth such
adjustment or readjustment and showing in detail the facts upon which such
adjustment or readjustment is based. The Corporation shall, upon the written
request at any time of the Holder, furnish or cause to be furnished to the
Holder a like certificate setting forth (i) such adjustments and readjustments,
(ii) the Conversion Price of the Series B Preferred at the time in effect, and
(iii) the number of shares of Series B Common Stock and the amount, if any, of
other property which at the time would be received upon the conversion of the
Series B Preferred.
D-6
g. Status of Converted Stock. In case any shares of Series B
Preferred shall be converted pursuant to Section 3, the shares so converted
shall be canceled, shall not be reissuable and shall cease to be a part of the
outstanding capital stock of the Corporation.
h. Fractional Shares. In Lieu of any fractional shares of Series
B Common Stock to which the Holder would otherwise be entitled upon conversion,
the Corporation shall pay cash equal to such fraction multiplied by the fair
market value of one share of Series B Common Stock as determined by the Board of
Directors in the good faith exercise of its reasonable business judgment.
i. Miscellaneous.
i. All calculation under this Section S shall be made to
the nearest cent or to the nearest one hundredth (1/100) of a share, as the case
may be.
ii. The Holder shall have the right to challenge any
determination by the Board of Directors of fair market value pursuant to this
Section 3, in which case such determination of fair market value shall be made
by an independent appraiser selected jointly by the Board of Directors and the
Holder, the cost of such appraisal to be borne equally by the Corporation and
the Holder.
iii. No adjustment in the Conversion Price of the Series B
Preferred need be made if such adjustment would result in change in such
Conversion Price of less shares $0.01. Any adjustment of less than $0.01 that is
not made shall be carried forward and shall be made at the time of and together
with any subsequent adjustment that, on a cumulative basis, amounts to an
adjustment of $0.01 or more in such Conversion Price.
j. Reservation of Stock Issuable Upon Conversion. The Corporation
shall at all times reserve and keep available out of its authorized but unissued
shares of Series B Common Stock, solely for the purpose of effecting the
conversion of the shares of Series B Preferred, such number of its shares of
Series B Common Stock as shall from time to time be sufficient to effect the
conversion of all outstanding shares of Series B Preferred. If at any time the
number of authorized but unissued shares of Series B Common Stock shall not be
sufficient to effect the conversion of all then outstanding shares of Series B
Preferred, the Corporation will take such corporate action as may, in the
opinion of its counsel, be necessary to increase its authorized but unissued
shares of Series B Common Stock to such number of shares as shall be sufficient
for such purpose.
4. Voting Rights.
a. Except as otherwise required by law and Subsection 4(b),
the Holder shall have no voting rights with respect to the Series B Preferred.
b. So long as any of the shares of Series B Preferred are
outstanding, the written consent of the Holder shall be necessary for
authorizing, affecting or validating the amendment,
D-7
alteration, or repeal of any of the provisions of the Articles of Incorporation
of the Corporation or of any certificate amendatory thereof or supplemental
thereto (including any certificate of amendment or any similar document relating
to any series of preferred stock) that would adversely affect the powers,
preferences, or special rights of the Series B Preferred, including the creation
or authorization of any class of Senior Shares or Party Shares. Any amendment or
any resolution or action of the Board of Directors that would create or issue
any series of Junior Shares out of the authorized shares of preferred stock, or
that would authorize, create, or issue any other Junior Shares (whether or not
already authorized), shall not be considered to affect adversely the powers,
preferences, or special rights of the outstanding shares of the Series B
Preferred.
5. Redemption.
a. Optional Redemption. If the Holder exercises its Conversion
Rights pursuant to Section 3, then instead of effecting the conversion, the
Corporation may, by giving written notice to the Holder (a "Notice of
Redemption") not later than one Business Day after receiving the Conversion
Notice, elect to redeem all (but not less than all) of the Series B Preferred
outstanding on the Redemption Date.
b. Redemption Value. Upon any redemption of the Series B
Preferred, the Corporation shall pay out of funds legally available therefor in
cash a sum per share equal to the Conversion Value, together with (i) all
accrued but unpaid dividends (including any interest accrued thereon) calculated
as of the Redemption Date, (ii) if the Redemption Date is a date other than the
last day of a Payment Period, the Interim Payment and (iii) all other costs,
fees, expenses, or amounts the Corporation is required to pay Holder pursuant to
the Stock Purchase Agreement, regardless of the reason for such redemption or
such costs, fees, expenses, or amounts (collectively the "Redemption Value").
c. Notice of Redemption. Any Notice of Redemption given by the
Corporation shall be delivered to the Holder, notifying the Holder of the
redemption to be effected. The Notice of Redemption shall:
i. State that the Series B Preferred is to be redeemed:
ii. Specify the date (the "Redemption Date") on which the
Series B Preferred is to be redeemed, which shall be not more than ten Business
Days following the date the Corporation receives the Conversion Notice from the
Holder.
iii. Request wire transfer or other instructions for the
payment of the Redemption Value.
d. Transfer Instructions. Not less than one Business Day after
delivery of the Notice of Redemption, the Holder shall provide the Corporation
with instructions for [ILLEGIBLE] or other transfer of the Redemption Value to
the Holder.
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e. Completing the Redemption. On the Redemption Date:
i. The Holder shall surrender to the Corporation at the
principal offices of the Corporation the Holder's certificate or certificates
representing the shares to be redeemed or provide a notice to the Corporation in
writing that such certificates have been lost, stolen or destroyed and that the
Holder agrees to indemnify the Corporation from any loss incurred by it in
connection with such certificates; and
ii. The Corporation shall pay the Redemption Value to the
Holder by wire or other transfer acceptable to the Holder, and thereupon each
surrendered or lost certificate shall be canceled.
f. Lack of Legally Available Funds. If the funds of the
Corporation legally available for redemption of the Series B Preferred are
insufficient to redeem the total number of shares of Series B Preferred required
to be redeemed on the Redemption Date, then, at the Holder's election in its
sole discretion, the Corporation either shall redeem that number of shares of
Series B Preferred for which the Corporation has funds legally available or
shall not redeem any of the Series B Preferred.
g. Effect of Redemption. From and after the payment of the
Redemption Value, all rights of the Holder shall cease with respect to such
shares, and such shares shall not thereafter be transferred on the books of the
Corporation or be deemed to be outstanding for any purpose whatsoever.
6. Notices of Record Date. In the event of any taking by the Corporation
of a record of the holders of any class of securities for the purpose of
determining the holders thereof who are entitled to receive any dividend or
other distribution, any right to subscribe for, purchase or otherwise acquire
any shares of stock of any class or any other securities or property, or to
receive any other right, the Corporation shall notify the Holder, at least 10
days prior to the date specified therein, a notice specifying the date on which
any such record is to be taken for the purpose of such dividend, distribution or
right, and the amount and character of such dividend, distribution or right.
7. Notices. All notices and other communications provided for in this
Certificate shall be given or made in writing and telecopied, mailed by
certified mail return receipt requested or delivered to the intended recipient
at such address as shall be designated by such person in a notice to each other
relevant person given in accordance with this Section, in addition to any other
notices that may be required by law. All such communications shall be deemed to
have been duly given when transmitted by telecopy, subject to telephone
confirmation of receipt, or when personally delivered or, in the case of a
mailed notice, upon receipt, in each case given or addressed as provided herein.
8. WAIVER OF JURY TRIAL. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, THE CORPORATION HEREBY IRREVOCABLY AND EXPRESSLY WAIVES ALL RIGHT TO A
TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR
D-9
COUNTERCLAIM (WHETHER BASED UPON CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR
RELATING TO THE SERIES B PREFERRED SHARES, THE STOCK PURCHASE AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED THEREBY OR THE ACTIONS OF THE HOLDER IN THE
NEGOTIATION, ADMINISTRATION, OR ENFORCEMENT THEREOF.
9. Interest. Any amounts required to be paid under this Certificate that
are not paid on the first day such payment may be made and any dividends in
arrears shall bear interest from that date at the lesser of (a) the Maximum Rate
or (b) the sum of four percent plus the rate per annum publicly announced from
time to time by NationsBank. N.A. as its prime rate in effect at its principal
office in Charlotte, North Carolina.
10. Maximum Rate. Notwithstanding anything to the contrary contained
herein, in the event the Series B Preferred shall be deemed to be debt instead
of equity, no provisions of this Certificate shall require the payment or permit
the collection of interest in excess of the Maximum Rate. If any excess of
interest in such respect shall be adjudicated to be so provided in this
Certificate or otherwise in connection with the Series B Preferred, the
provisions of this paragraph shall govern and prevail, and neither the
Corporation nor the successors or assigns of the Corporation shall be obligated
to pay the excess amount of such interest, or any other excess sum paid with
respect to the Series B Preferred. If, for any reason, interest in excess of the
Maximum Rate shall be deemed charged, required or permitted by any court of
competent jurisdiction, any such excess shall be applied as a payment and
reduction of the principal of indebtedness deemed to be evidenced by the Series
B Preferred; and, if such principal has been paid in full, any remaining excess
shall forthwith be paid to the Corporation. In determining whether or not the
interest paid or payable exceed the Maximum Rate, the Corporation and the Holder
shall, to the extent permitted by 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) amortize,
prorate, allocate, and spread in equal or unequal parts the total amount of
interest throughout the entire term of the indebtedness deemed to be evidenced
by the Series B Preferred so that the interest for the entire period does not
exceed the Maximum Rate.
11. Definitions.
a. Capitalized terms used in this Certificate and not otherwise
defined have the meanings given to those terms in the Series B Stock Purchase
Agreement between the Corporation and Blue Ridge Investments. LLC, dated August
30, 1996.
b. "Additional Amounts" means such amounts. If any, as are
necessary to compensate the Holder of any costs incurred by Holder which the
Holder determines are attributable, directly or indirectly, to its purchase or
holding of the Series B Preferred or any reduction in any amount receivable by
the Holder as a holder of the Series B Preferred to the extent such costs and
reductions in amount are not reflected in any dividends, fees, reimbursements or
other amounts received by the Holder hereunder or under the Stock Purchase
Agreement, resulting from (i) an increase (over the dividend rate paid
hereunder) in the cost of funding the purchase of the Series B Preferred, or
(ii) any Regulatory Change which:
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(A) changes the basis of taxation of any amounts payable
generally to NationsBank under Eurodollar loans (other than taxes
imposed on the overall net income of NationsBank of its applicable
lending office for any of such loans by the jurisdiction in which
NationsBank has its principal office or such applicable lending
office);
(B) Imposes or modifies reserve, special deposit, minimum
capital, capital ratio, or similar requirement relating to any
extensions of credit or other assets of, or any deposits with or other
liabilities or commitments of, NationsBank (including any of such loans
or any deposits referred to in the definition of ("Floating Rate"
herein); or
(C) imposes any other condition generally affecting loans
by NationsBank or any of such extensions of credit or liabilities or
commitments.
c. "Additional Shares of Common Stock" means all shares of Common
Stock issued (or, pursuant to Section 3(d)(ii), deemed to be issued) by the
Corporation after the date of this Certificate, other than shares of Common
Stock issued or issuable:
i. upon conversion of shares of Series B Preferred;
ii. as a dividend or distribution on Series B Preferred;
iii. in a transaction described in Section 3(d)(v);
iv. by way of dividend or other distribution on shares of
Common Stock excluded from the definition of Additional Shares of Common Stock.
d. "Affiliate" has the meaning given that term in Rule 405
promulgated by the Securities and Exchange Commission under the Securities Act.
e. "Business Day" means (a) any day which commercial banks are
not authorized or required to close in charlotte, North Carolina and (b) with
respect to all payments, Conversions, Payment Periods, and notices, any day
which is a Business Day described in clause (a) above and which is also a day on
which dealings in dollar are carried out in the London interbank market.
f. "Common Stock" means shares of the Corporation's common stock,
par value $0.25 per share, serial common stock, or other securities entitled
generally to vote in the election of directors of the Corporation.
g. "Conversion Date" has the meaning given in Section 3(c).
h. "Conversion Notice" has the meaning given in Section 3(c).
i. "Conversion Price" has the meaning given in Section 3(b).
D-11
j. "Conversion Value" has the meaning given in Section 3(h).
k. "Convertible Securities" means any evidences of indebtedness,
shares or other securities convertible into or exchangeable for Common Stock,
except the Series B Preferred.
l. "Corporation" means AMERCO, a Nevada corporation.
m. "Excess Equity Offering" means any offer or sale of equity
securities of the Corporation or any of its subsidiaries, whether public or
private, after the date of this Certificate, other than (i) the offer and sale
of Series B Preferred issued to Holder, (ii) the offer and sale by the
Corporation of up to $125,000,000 of equity securities in a single transaction
occurring on or before March 1, 1997, and (iii) issuances of equity securities
to employees of the Corporation or its subsidiaries pursuant to written employee
benefit plans existing on the date of this Certificate in the maximum amount
permitted under such plans or arrangements on the date of this Certificate.
n. "Floating Rate" means, for any Payment Period; the rate per
annum that is the lesser of (x) the sum of (i) two and one-quarter percent
(2.25%), and (ii) the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor page) as
the London interbank offered rate for deposits in Dollars at approximately 11:00
a.m. (London time) two Business Days prior to the first day of such Payment
Period for a term comparable to such Payment Period, or if for any reason such
rate is not available, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page (or any successor
page) as the London interbank offered rate for deposits in Dollars at
approximately 11:00 a.m. (London time) two Business Days prior to the first day
of such Payment Period for a term comparable to such Payment Period; provided,
however, if more than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates, or (y) the
Maximum Rate, Dividends shall be computed on the basis of a year of 360 days and
the actual number of days elapsed (including the first day but excluding the
last day) during the Payment Period unless such calculation would result in the
dividends exceeding the Maximum Rate, in which case dividends shall be
calculated on the basis of a year of 365 or 366 days, as the case may be.
Notwithstanding the first sentence of this paragraph, if at any time the
dividend is limited by the terms of this Certificate to the Maximum Rate, then
any subsequent reduction in the Floating Rate shall not reduce the dividend
below the Maximum Rate until the aggregate amount of dividends accrued equals
the aggregate amount of dividends which would have accrued on the Series B
Preferred if the dividend specified in the first sentence of this paragraph had
at all times been in effect.
o. "Holder" means the holder or holders of record of the Series B
Preferred.
p. "Interim Payment" means such amount or amounts as shall be
sufficient to compensate the Holder for any loss, cost, or expense incurred by
the Holder as a result of any payment or prepayment for any reason on a date
other than the last day of a Payment Period. Without limiting the affect of the
preceding sentence, such compensation shall include an amount equal to the
excess, if any, of (i) the amount of dividends which otherwise would have
accrued.
D-12
on the Conversion Value of the Series B Preferred redeemed from the period from
the date of such redemption to the last day of the Payment Period at the
applicable rate of dividends for such Series B Preferred provided for herein,
over (ii) the interest component of the amount the Holder would have bid in the
London interbank market for dollar deposits of leading banks in amounts
comparable to the Conversion Value of the Series B Preferred redeemed and with
the maturities comparable to the applicable Payment period.
q. "Junior Shares" means all classes and series of shares that,
by the terms of the Corporation's Articles of Incorporation, or by law, shall be
subordinate to the Series B Preferred with respect to the right of the holders
thereof to receive dividends and to participate in the assets of the Corporation
distributable to shareholders upon any liquidation, dissolution or winding up of
the Corporation.
r. "Liquidation Date" has the meaning given in Section 2(a).
s. "Maximum Rate" means the maximum rate of [ILLEGIBLE]
interest permitted from day to day by applicable law, and calculated after
taking into account any and all relevant fees, payments, and other charges
contracted for, charged or received which are deemed to be interest under
applicable law.
t. "NationsBank" means NationsBank Corporation, a Delaware
corporation.
u. "Options" means rights, options or warrants to subscribe for,
purchase or otherwise acquire either Common Stock or Convertible Securities,
other than the Series B Preferred.
v. "Parity Shares" means all classes and series of shares that,
by the terms of the Corporation's Articles of Incorporation, or by law, shall be
on parity with the Series B Preferred with respect to the right of the holders
thereof to receive dividends and to participate in the assets of the Corporation
distributable to shareholders upon any liquidation, dissolution or winding-up of
the Corporation.
w. "Payment Period" means each period commencing on the date any
shares of Series B Preferred are first issued or, in the case of each
subsequent, successive Payment Period, the last day of the next preceding
Payment Period, and ending on the numerically corresponding day in the first,
second or third calendar month thereafter, as the Holder may select by written
notice to the Corporation at least three days before the the commencement of the
applicable Payment Period, except that each such Payment Period which commences
on the last Business Day of a calendar month (or on any day for which there is
no numerically corresponding day in the appropriate subsequent calendar month)
shall end on the last Business Day of the appropriate subsequent calendar month.
Notwithstanding the foregoing: (a) each Payment Period which would otherwise end
on a day which is not a Business Day shall end on the next succeeding Business
Day (or, if such succeeding Business Day falls in the next succeeding calendar
month, on the next preceding Business Day); (b) any Payment Period which would
otherwise extend beyond a Conversion Date, Redemption Date or Liquidation Date
or Liquidation Date shall end on the Conversion Date, Redemption Date or
Liquidation Date, as appropriate; and (c) no Payment Period shall have
D-13
a duration of less than one (1) month. If Holder shall fail to give the
Corporation a notice of the length of a Payment Period prior to the end of the
then current Payment Period, such Payment Period shall automatically be
continued on the last day thereof as Payment Period having a term of one month.
x. "Picacho" means Picacho Peak Investment Co., a Nevada
corporation.
y. "Redemption Date" has the meaning given in Section 5(c).
z. "Regulatory Change" means any change after the date of this
Certificate in United States federal, state or foreign laws or regulations
(including Regulation D of the Board of Governors of the Federal Reserve System
as the same may be amended or supplemented from time to time) or the adoption or
making after such date of any interpretations, directives or requests applying
to a class of Institutions including NationsBank of or under any United States
federal, state or foreign laws or regulations (whether or not having the force
of law) by any court or governmental or monetary authority charged with the
interpretation or administration thereof.
aa. "Senior Shares" means all classes and series of shares,
including the Corporation's Series A 8 1/2% Preferred Stock, that, by the terms
of the Corporation's Articles of Incorporation, or by law, shall be senior to
the Series B Preferred with respect to the right of the holders thereof to
receive dividends and to participate in the assets of the Corporation
distributable to shareholders upon any liquidation, dissolution or winding-up of
the Corporation.
bb. "Series B Common Stock" means the Series B common stock, $0.25
par value per share, of the Corporation.
cc. "Stock Purchase Agreement" means the Series B Stock Purchase
Agreement between the Corporation and Blue Ridge Investments, LLC, dated August
30, 1996.
[ILLEGIBLE SEAL]
D - 14
EXHIBIT P
RESTATED ARTICLES OF INCORPORATION OF REORGANIZED AREC
[SEE ATTACHED]
PROPOSED AMENDMENT OF THE
RESTATED ARTICLES OF INCORPORATION
OF
AMERCO REAL ESTATE COMPANY
Article IV of the Restated Articles of Incorporation of Amerco Real Estate
Company is amended in its entirety to read as follows:
ARTICLE IV
The number of shares of common stock which this corporation is authorized to
issue is twenty million (20,000,000) shares with a par value of One Cent ($0.01)
per share. In addition to the common stock authorized to be issued, the
corporation is authorized to issue five million $5,000,000) shares of preferred
stock, with the Board of Directors having authority to issue such shares in one
or more series, with a par value of One Cent ($0.01) per share, with limited
voting powers or without voting powers, and with such designations, preferences
and relative, participating, optional or other special rights, or
qualifications, limitations or restrictions thereof as shall be stated or
expressed in the resolution regarding such stock adopted by the Board of
directors pursuant to the authority expressly vested in it by this provision of
the Articles of Incorporation, or any amendment hereto.
Pursuant to 1123(a)(6) of Title 11 of the United States Code, 11 U.S.C.
Sections 101, et seq., and notwithstanding any provision to the contrary in this
Article IV, the Board shall not authorize the issuance of any non-voting shares
of common stock or preferred stock.