U-HAUL S FLEET, LLC, 2007 TM-1, LLC, 2007 DC-1, LLC, and 2007 EL-1, LLC, as Co- Issuers and U.S. BANK NATIONAL ASSOCIATION, as Trustee 2007-1 BOX TRUCK BASE INDENTURE Dated as of June 1, 2007 Box Truck Asset Backed Notes (Issuable in Series)
Execution
Copy
U-HAUL
S
FLEET, LLC,
2007
TM-1, LLC,
2007
DC-1, LLC,
and
2007
EL-1, LLC,
as
Co-Issuers
and
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
_______________________________
2007-1
BOX TRUCK BASE INDENTURE
Dated
as
of June 1, 2007
_______________________________
Box
Truck
Asset Backed Notes
(Issuable
in Series)
TABLE
OF
CONTENTS
ARTICLE
1. DEFINITIONS, INCORPORATION BY REFERENCE AND CONSTRUCTION
Section
1.1.
Definitions
Section
1.2.
Cross-References
Section
1.3.
Rules of
Construction
Section
1.4.
Other
Definitional Provisions
ARTICLE
2. THE NOTES
Section
2.1.
Joint
and Several Obligations
Section
2.2.
Designation and Terms of Notes
Section
2.3.
Notes
Issuable in Series
Section
2.4.
Series
Supplement For Each Series
Section
2.5.
Execution and Authentication
Section
2.6.
Registration of Transfer and Exchange of Notes
Section
2.7.
Appointment of Paying Agent
Section
2.8.
Noteholder List
Section
2.9.
Persons
Deemed Owners
Section
2.10.
Replacement Notes
Section
2.11.
Treasury
Notes
Section
2.12.
Temporary Notes
Section
2.13.
Cancellation
Section
2.14.
Principal and Interest
Section
2.15.
Book-Entry Notes
Section
2.16.
Definitive Notes
Section
2.17.
Tax
Treatment
Section
2.18.
CUSIP
Numbers
ARTICLE
3. SECURITY
Section
3.1.
Grant of
Security Interest
Section
3.2.
Certain
Rights and Obligations of the Issuers Unaffected
Section
3.3.
Performance of Collateral Agreements
Section
3.4.
Release
of Collateral
Section
3.5.
Stamp,
Other Similar Taxes and Filing Fees
ARTICLE
4. REPORTS
Section
4.1.
Agreement of the Issuers to Provide Reports and Instructions
Section
4.2.
Administrator
Section
4.3.
Reports
to Noteholders
Section
4.4.
Annual
Noteholders’ Tax Statement
Section
4.5.
Rule
144A Information
ARTICLE
5. ALLOCATION AND APPLICATION OF COLLECTIONS
Section
5.1.
Issuer
Accounts
-i-
Section
5.2.
Collections and Allocations
Section
5.3.
Determination of Monthly Interest
Section
5.4.
Determination of Monthly Principal
Section
5.5.
Misdirected Collections
ARTICLE
6. DISTRIBUTIONS
Section
6.1.
Distributions in General
ARTICLE
7. REPRESENTATIONS AND WARRANTIES
Section
7.1.
Existence and Power
Section
7.2.
Limited
Liability Company and Governmental Authorization
Section
7.3.
Binding
Effect
Section
7.4.
Financial Information; Financial Condition
Section
7.5.
Litigation
Section
7.6.
No ERISA
Plan
Section
7.7.
Tax
Filings and Expenses
Section
7.8.
Disclosure
Section
7.9.
Investment Company Act; Securities Act
Section
7.10.
Regulations T, U and X
Section
7.11.
No
Consent
Section
7.12.
Solvency
Section
7.13.
Ownership of Membership Interests
Section
7.14.
Security
Interests
Section
7.15.
Binding
Effect of Collateral Agreements
Section
7.16.
Non-Existence of Other Agreements
Section
7.17.
Compliance with Contractual Obligations and Laws
Section
7.18.
Eligible
Box Trucks
Section
7.19.
SPV
Fleet Owner Agreement
Section
7.20.
No
Employees
Section
7.21.
Environmental Matters
Section
7.22.
Other
Representations
ARTICLE
8. COVENANTS
Section
8.1.
Payment
of Notes
Section
8.2.
Maintenance of Office or Agency
Section
8.3.
Payment
of Obligations
Section
8.4.
Maintenance of Existence
Section
8.5.
Compliance with Requirements of Law and Contractual Obligations
Section
8.6.
Inspection of Property, Books and Records
Section
8.7.
Compliance with Collateral Agreements
Section
8.8.
Notice
of Defaults
Section
8.9.
Notice
of Material Proceedings
Section
8.10.
Further
Requests
Section
8.11.
Further
Assurances
Section
8.12.
Liens
Section
8.13.
Other
Indebtedness
Section
8.14.
Mergers
-ii-
Section
8.15.
Sales of
Collateral
Section
8.16.
Acquisition of Assets
Section
8.17.
Distributions
Section
8.18.
Name;
Principal Office
Section
8.19.
Organizational Documents
Section
8.20.
Investments
Section
8.21.
No Other
Agreements
Section
8.22.
Other
Business
Section
8.23.
Maintenance of Separate Existence
Section
8.24.
Use of
Proceeds of Notes
Section
8.25.
No ERISA
Plan
Section
8.26.
No
Employees
Section
8.27.
Environmental
Section
8.28.
SPV
Fleet Owner Agreement
Section
8.29.
Maintenance of the Box Trucks
Section
8.30.
Entrance
into a Permitted Note Issuance Indenture
Section
8.31.
Box
Truck SPV Permitted Note Limited Guarantees
ARTICLE
9. EVENTS OF DEFAULT
Section
9.1.
Events
of Default
Section
9.2.
Acceleration of Maturity; Rescission and Annulment
Section
9.3.
Collection of Indebtedness and Suits for Enforcement by the Trustee
Section
9.4.
Remedies; Priorities
Section
9.5.
Optional
Preservation of the Collateral
Section
9.6.
Limitation on Suits
Section
9.7.
Unconditional Rights of Noteholders to Receive Principal and
Interest
Section
9.8.
Restoration of Rights and Remedies
Section
9.9.
Rights
and Remedies Cumulative
Section
9.10.
Delay or
Omission Not a Waiver
Section
9.11.
Control
by the Controlling Party
Section
9.12.
Waiver
of Past Defaults
Section
9.13.
Undertaking for Costs
Section
9.14.
Waiver
of Certain Rights
Section
9.15.
Sale of
Collateral
Section
9.16.
Action
on Notes
ARTICLE
10. RAPID AMORTIZATION EVENTS
Section
10.1.
Rapid
Amortization Events
ARTICLE
11. THE TRUSTEE
Section
11.1.
Duties
of the Trustee
Section
11.2.
Rights
of the Trustee
Section
11.3.
Individual Rights of the Trustee
Section
11.4.
Notice
of Events of Default, Rapid Amortization Events, Defaults and Potential Rapid
Amortization Events
Section
11.5.
Compensation and Expenses
Section
11.6.
Eligibility Disqualification
-iii-
Section
11.7.
Replacement of the Trustee
Section
11.8.
Successor Trustee by ▇▇▇▇▇▇, etc.
Section
11.9.
Appointment of Co-Trustee or Separate Trustee
Section
11.10.
Representations and Warranties of the Trustee
Section
11.11.
Issuer
Indemnification of the Trustee
ARTICLE
12. DISCHARGE OF INDENTURE
Section
12.1.
Termination of the Issuers’ Obligations
Section
12.2.
Application of Trust Money
Section
12.3.
Repayment to the Issuers
Section
12.4.
Reinstatement
ARTICLE
13. AMENDMENTS
Section
13.1.
Without
Consent of the Noteholders
Section
13.2.
With
Consent of the Noteholders
Section
13.3.
Supplements
Section
13.4.
Revocation and Effect of Consents
Section
13.5.
Notation
on or Exchange of Notes
Section
13.6.
The
Trustee to Sign Amendments, etc.
ARTICLE
14. MISCELLANEOUS
Section
14.1.
Notices
Section
14.2.
Communication by Noteholders With Other Noteholders
Section
14.3.
Certificate and Opinion as to Conditions Precedent
Section
14.4.
Statements Required in Certificate
Section
14.5.
Rules by
the Trustee
Section
14.6.
Duplicate Originals
Section
14.7.
Benefits
of Indenture
Section
14.8.
Payment
on Business Day
Section
14.9.
Governing Law
Section
14.10.
No
Adverse Interpretation of Other Agreements
Section
14.11.
Successors
Section
14.12.
Severability
Section
14.13.
Counterpart Originals
Section
14.14.
Table of
Contents, Headings, etc.
Section
14.15.
Termination; Collateral
Section
14.16.
Release
of an Issuer
Section
14.17.
No
Bankruptcy Petition
Section
14.18.
No
Recourse.
Section
14.19.
Subordination.
Section
14.20.
Waiver
of Trial by Jury
Section
14.21.
Submission to Jurisdiction
Section
14.22.
Know
Your Customer
-iv-
SCHEDULES
AND EXHIBITS
SCHEDULE
1 DEFINITIONS
LIST
EXHIBIT
A FORM
OF
MONTHLY REPORT
EXHIBIT
B FORM
OF
BOX TRUCK SPV
PERMITTED
NOTE LIMITED GUARANTEE
-v-
2007-1
BOX TRUCK BASE INDENTURE, dated as of June 1, 2007, among U-HAUL S FLEET, LLC,
a
special purpose limited liability company established under the laws of Nevada,
2007 TM-1, LLC, a special purpose limited liability company established under
the laws of Nevada, 2007 DC-1, LLC, a special purpose limited liability company
established under the laws of Nevada, and 2007 EL-1, LLC, a special purpose
limited liability company established under the laws of Nevada, as co-issuers
(each an “Issuer”
and
collectively, the “Issuers”),
and
U.S. BANK NATIONAL ASSOCIATION, a national banking association, as trustee
(in
such capacity, the “Trustee”).
W
I T
N E S S E T H:
WHEREAS,
each Issuer has duly authorized the execution and delivery by it of this 2007-1
Base Indenture to provide for the issuance from time to time of one or more
series of the Issuers’ Box Truck Asset Backed Notes (the “Notes”),
issuable as provided in this 2007-1 Base Indenture; and
WHEREAS,
all things necessary to make this 2007-1 Base Indenture a legal, valid and
binding agreement of the Issuers, enforceable in accordance with its terms,
have
been done, and each Issuer proposes to do all the things necessary to make
the
Notes, when executed by such Issuer and authenticated and delivered by the
Trustee hereunder and duly issued by such Issuer, the legal, valid and binding
obligations of such Issuer as hereinafter provided;
NOW,
THEREFORE, for and in consideration of the premises and the receipt of the
Notes
by the Noteholders, it is mutually covenanted and agreed, for the benefit of
the
Trustee, on behalf of the Secured Parties, as follows:
ARTICLE
1.
DEFINITIONS,
INCORPORATION BY REFERENCE
AND
CONSTRUCTION
Section
1.1. Definitions.
Certain
capitalized terms used herein (including the preamble and the recitals hereto)
shall have the meanings assigned to such terms in the Definitions List attached
hereto as Schedule I (the “Definitions List”), as such Definitions List may be
amended or modified from time to time in accordance with the provisions
hereof.
Section
1.2. Cross-References.
Unless
otherwise specified, references in this 2007-1 Base Indenture and in each other
Related Document to any Article or Section are references to such Article or
Section of this 2007-1 Base Indenture or such other Related Document, as the
case may be and, unless otherwise specified, references in any Article, Section
or definition to any clause are references to such clause of such Article,
Section or definition.
Section
1.3. Rules
of Construction.
In the
Indenture, unless the context otherwise requires:
(i) the
singular includes the plural and vice versa;
(ii) reference
to any Person includes such Person’s successors and assigns but, if applicable,
only if such successors and assigns are permitted by the Indenture, and
reference to any Person in a particular capacity only refers to such Person
in
such capacity;
(iii) reference
to any gender includes the other gender;
(iv) reference
to any Requirement of Law means such Requirement of Law as amended, modified,
codified or reenacted, in whole or in part, and in effect from time to
time;
(v) “including”
(and with correlative meaning “include”) means including without limiting the
generality of any description preceding such term;
(vi) with
respect to the determination of any period of time, “from” means “from and
including” and “to” means “to but excluding”; and
(vii) “or”
is
not exclusive.
Section
1.4. Other
Definitional Provisions.
(i)
All
terms defined in the Indenture shall have such defined meanings when used in
any
certificate or document made or delivered pursuant hereto unless otherwise
defined therein.
(ii) The
words
“hereof,” “herein” and “hereunder” and words of similar import when used in the
Indenture shall refer to the Indenture as a whole and not to any particular
provision of the Indenture; and Section, subsection, Schedule and Exhibit
references contained in the Indenture are references to Sections, subsections,
Schedules and Exhibits in or to the Indenture unless otherwise
specified.
ARTICLE
2.
THE
NOTES
Section
2.1. Joint
and Several Obligations.
Each
Issuer hereby agrees and acknowledges that it will be liable, jointly and
severally, for the Issuer Obligations, including the Notes and all amounts
payable with respect thereto.
Section
2.2. Designation
and Terms of Notes.
Each
Series of Notes shall be substantially in the form specified in the applicable
Series Supplement, with such appropriate insertions, omissions, substitutions
and other variations as are required or permitted hereby or by the applicable
Series Supplement and may have such letters, numbers or other marks of
identification and such legends or endorsements placed thereon as may,
consistently herewith, be determined to be appropriate by the Authorized
Officers executing such Notes, as evidenced by their execution of the Notes
and
shall bear, upon its face, the designation for such Series to which it belongs
so selected by the Issuers. All Notes of all Series shall, except as specified
in the applicable Series Supplement, be equally and ratably entitled as provided
herein to the benefits hereof without preference, priority or distinction on
account of the actual time or times of authentication and delivery, all in
accordance with the terms and provisions of this 2007-1 Base Indenture and
the
applicable Series Supplement. The aggregate principal amount of Notes which
may
be authenticated and delivered under the Indenture is unlimited. The Notes
of
each
2
Section
2.3. Notes
Issuable in Series.
(a)
The
Notes may be issued in one or more Series; provided,
however,
that
there shall be no more than one Series of Notes Outstanding at any
time.
(b) Each
Series of Notes shall be created by a Series Supplement. Subject to Section
2.3(a),
Notes
of a new Series may from time to time be executed by the Issuers and delivered
to the Trustee for authentication and thereupon the same shall be authenticated
and delivered by the Trustee upon the receipt by the Trustee of a Company
Request at least two (2) Business Days (or such shorter period as is acceptable
to the Trustee) in advance of the related Closing Date and upon delivery by
the
Issuers to the Trustee, and receipt by the Trustee, of the
following:
(i) a
Company
Order authorizing and directing the authentication and delivery of the Notes
of
such new Series by the Trustee and specifying the designation of such new
Series, the Initial Aggregate Note Balance of such new Series to be
authenticated and the Note Rate (or the method for allocating interest payments
or other cash flows to such Series) with respect to such new
Series;
(ii) a
Series
Supplement satisfying the criteria set forth in Section
2.4
in form
satisfactory to the Trustee executed by each Issuer and the Trustee and
specifying the Principal Terms of such new Series;
(iii) the
related Enhancement Agreement, if any, executed by each of the parties thereto,
other than the Trustee;
(iv) written
confirmation that the Permitted Note Issuance Rating Agency Condition shall
have
been satisfied with respect to such issuance;
(v) an
Officer’s Certificate of each Issuer dated as of the applicable Closing Date to
the effect that (x) no Event of Default, Rapid Amortization Event, Aggregate
Asset Amount Deficiency, Enforcement Event, Termination Event, Default,
Potential Rapid Amortization Event, Potential Enforcement Event, or Potential
Termination Event is continuing or will occur as a result of the issuance of
the
new Series of Notes, (y) after giving effect to the application of the net
proceeds of such new Series, the only Series of Notes Outstanding will be the
new Series of Notes and (z) all conditions precedent provided in this 2007-1
Base Indenture and the applicable Series Supplement with respect to the
authentication and delivery of the new Series of Notes have been complied
with;
(vi) unless
otherwise specified in the related Series Supplement, an Opinion of Counsel,
subject to the assumptions and qualifications stated therein, and in a form
reasonably acceptable to the Trustee, dated the applicable Closing Date,
substantially to the effect that:
(A) all
instruments furnished to the Trustee conform to the requirements of this 2007-1
Base Indenture and the applicable Series Supplement
3
and
constitute all the documents required to be delivered hereunder and thereunder
for the Trustee to authenticate and deliver the new Series of Notes, and
all
conditions
precedent
provided for in this 2007-1 Base Indenture and the applicable Series Supplement
with respect to the authentication and delivery of the new Series of Notes
have
been
complied
with;
(B) the
applicable Series Supplement has been duly authorized, executed and delivered
by
each Issuer;
(C) the
new
Series of Notes has been duly authorized and executed and, when authenticated
and delivered in accordance with the provisions of this 2007-1 Base Indenture
and the applicable Series Supplement, will constitute valid, binding and
enforceable obligations of each Issuer entitled to the benefits of this 2007-1
Base Indenture and the applicable Series Supplement, subject, in the case of
enforcement, to bankruptcy, insolvency, reorganization, moratorium and other
similar laws affecting creditors’ rights generally and to general principles of
equity;
(D) the
applicable Series Supplement is a legal, valid and binding agreement of each
Issuer, enforceable in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium and other similar laws affecting
creditors’ rights generally and to general principles of equity;
and
(E) such
other matters as the Trustee may reasonably require;
(vii) a
Permitted Note Issuance SPV Limited Guarantee executed by each Permitted Note
Issuance SPV which is a party to a Permitted Note Issuance Indenture as of
the
applicable Closing Date;
(viii) evidence
that each of the parties to the Related Documents and each party to any Hedge
Agreement (other than any interest rate cap agreement) outstanding as of the
date thereof has covenanted and agreed that, prior to the date which is one
year
and one day after the payment in full of all Issuer Obligations, it will not
institute against, or join with any other Person in instituting, against USF,
any Box Truck SPV, any Permitted Note Issuance SPV or the Nominee Titleholder
any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings, or other proceedings, under any federal or state bankruptcy or
similar law; and
(ix) such
other documents, instruments, certifications, agreements or other items as
the
Trustee may reasonably require.
Upon
satisfaction of such conditions, the Trustee shall authenticate and deliver,
as
provided above, such Series of Notes upon execution thereof by each
Issuer.
Section
2.4. Series
Supplement For Each Series.
In
conjunction with the issuance of a new Series, the parties hereto shall execute
a Series Supplement, which shall specify the relevant terms with respect to
such
new Series of Notes, which shall include, as applicable: (i) its name or
designation, (ii) the Initial Aggregate Note Balance or the method for
determining
4
Section
2.5. Execution
and Authentication.
(a)
An
Authorized Officer of each Issuer shall sign the Notes by manual, facsimile
or
electronically scanned signature. If an Authorized Officer whose signature
is on
a Note no longer holds that office at the time the Note is authenticated, the
Note shall nevertheless be valid.
(b) At
any
time and from time to time after the execution and delivery of this 2007-1
Base
Indenture, the Issuers may deliver Notes of any particular Series executed
by
each Issuer to the Trustee for authentication, together with one or more Company
Orders for the authentication and delivery of such Notes, and the Trustee,
in
accordance with such Company Order and this 2007-1 Base Indenture, shall
authenticate and deliver such Notes.
(c) No
Note
shall be entitled to any benefit under the Indenture or be valid for any purpose
unless there appears on such Note a certificate of authentication substantially
in the form provided for herein, duly executed by the Trustee by the manual
signature of a Trust Officer. Such signatures on such certificate shall be
conclusive evidence, and the only evidence, that the Note has been duly
authenticated under the Indenture. The Trustee may appoint an authenticating
agent acceptable to the Issuers to authenticate Notes. Unless limited by the
term of such appointment, an authenticating agent may authenticate Notes
whenever the Trustee may do so. Each reference in this 2007-1 Base Indenture
to
authentication by the Trustee includes authentication by such agent. The
Trustee’s certificate of authentication shall be in substantially the following
form:
This
is
one of the Notes of a series issued under the within-mentioned
Indenture.
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
By:
Authorized
Signatory
5
(d) Each
Note
shall be dated and issued as of the date of its authentication by the
Trustee.
(e) Notwithstanding
the foregoing, if any Note shall have been authenticated and delivered hereunder
but never issued and sold by the Issuers, and the Issuers shall deliver such
Note to the Trustee for cancellation as provided in Section
2.13
together
with a written statement stating that such Note has never been issued and sold
by the Issuers, for all purposes of the Indenture such Note shall be deemed
never to have been authenticated and delivered hereunder and shall not be
entitled to the benefits of the Indenture.
Section
2.6. Registration
of Transfer and Exchange of Notes.
(a)
The
Issuers shall cause to be kept at the office or agency to be maintained by
a
transfer agent and registrar (the “Registrar”),
a
register (the “Note
Register”)
in
which, subject to such reasonable regulations as it may prescribe, the Registrar
shall provide for the registration of the Notes of each Series (unless otherwise
provided in the applicable Series Supplement) and of transfers and exchanges
of
the Notes as herein provided. U.S. Bank National Association is hereby initially
appointed Registrar for the purposes of registering the Notes and transfers
and
exchanges of the Notes as herein provided. The Issuers may appoint one or more
co-registrars. Any reference in the Indenture to the Registrar shall include
any
co-registrar unless the context otherwise requires. U.S. Bank National
Association shall be permitted to resign as Registrar upon 30 days’ written
notice to the Issuers, any Financial Insurance Provider and the Trustee;
provided,
however,
that
such resignation shall not be effective and U.S. Bank National Association
shall
continue to perform its duties as Registrar until the Issuers have appointed
a
successor Registrar.
If
a
Person other than the Trustee is appointed by the Issuers as the Registrar,
the
Issuers will give the Trustee and any Financial Insurance Provider prompt
written notice of the appointment of such Registrar and of the location, and
any
change in the location, of the Registrar, and the Trustee and any Financial
Insurance Provider shall have the right to inspect the Note Register at all
reasonable times and to obtain copies thereof.
An
institution succeeding to the corporate agency business of the Registrar shall
continue to be the Registrar without the execution or filing of any paper or
any
further act on the part of any Issuer or such Registrar.
The
Registrar shall maintain in The City of New York (and, if so specified in the
applicable Series Supplement for any Series of Notes, any other city designated
in such Series Supplement) an office or offices or agency or agencies where
Notes may be surrendered for registration of transfer or exchange. The Registrar
initially designates its corporate trust office located at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, as its office for such purposes. The
Registrar shall give prompt written notice to the Trustee, the Issuers, any
Financial Insurance Provider and the Noteholders of any change in the location
of such office or agency.
Upon
surrender for registration of transfer of any Note at the office or agency
of
the Registrar, if the requirements of Section
2.6(b)
and
Section 8-401(a) of the New York UCC are met, each Issuer shall execute and,
after the Issuers have executed, the Trustee shall authenticate and (if the
Registrar is different than the Trustee, then the Registrar shall) deliver
to
6
At
the
option of any Noteholder, Notes may be exchanged for other Notes of the same
Series in authorized denominations of like aggregate principal amount, upon
surrender of the Notes to be exchanged at any office or agency of the Registrar
maintained for such purpose.
Whenever
any Notes of any Series are so surrendered for exchange, if the requirements
of
Section 8-401(a) of the New York UCC are met, each Issuer shall execute and,
after the Issuers have executed, the Trustee shall authenticate and (if the
Registrar is different than the Trustee, then the Registrar shall) deliver
to
the Noteholder, the Notes which the Noteholder making the exchange is entitled
to receive.
All
Notes
issued upon any registration of transfer or exchange of the Notes shall be
the
valid obligations of the Issuers, evidencing the same debt, and entitled to
the
same benefits under the Indenture, as the Notes surrendered upon such
registration of transfer or exchange.
Every
Note presented or surrendered for registration of transfer or exchange shall
be
(i) duly endorsed by, or be accompanied by a written instrument of transfer
in
form satisfactory to the Trustee duly executed by, the Holder thereof or such
▇▇▇▇▇▇’s attorney duly authorized in writing, with a medallion signature
guarantee, and (ii) accompanied by such other documents as the Trustee may
require.
The
preceding provisions of this Section
2.6
notwithstanding, the Trustee or the Registrar, as the case may be, shall not
be
required to register the transfer of or exchange any Note of any Series for
a
period of 15 days preceding the due date for any payment in full of the Notes
of
such Series.
Unless
otherwise provided in the applicable Series Supplement, no service charge shall
be made for any registration of transfer or exchange of Notes, but the Registrar
may require payment of a sum sufficient to cover any tax or governmental charge
that may be imposed in connection with any transfer or exchange of
Notes.
All
Notes
surrendered for registration of transfer and exchange shall be canceled by
the
Registrar and disposed of in a manner satisfactory to the Trustee. The Trustee
shall cancel and destroy any Global Notes upon its exchange in full for
Definitive Notes and shall deliver a certificate of destruction to the Issuers.
Such certificate shall also state that a certificate or certificates of each
Foreign Clearing Agency was received with respect to each portion of such Global
Note exchanged for Definitive Notes in accordance with the applicable Series
Supplement.
The
Issuers shall execute and deliver to the Trustee or the Registrar, as
applicable, Notes in such amounts and at such times as are necessary to enable
each of the Trustee and the Registrar to fulfill its responsibilities under
the
Indenture and the Notes.
(b) Unless
otherwise provided in the applicable Series Supplement, registration of transfer
of Notes containing a legend relating to the restrictions on transfer of
such
7
Notes
(which legend shall be set forth in the Series Supplement relating to such
Notes) shall be effected only if the conditions set forth in such applicable
Series Supplement are satisfied.
Section
2.7. Appointment
of Paying Agent.
(a)
The
Trustee may appoint a Paying Agent with respect to the Notes. The Trustee hereby
appoints U.S. Bank National Association as the initial Paying Agent. The Paying
Agent shall have the revocable power to withdraw funds and make distributions
to
Noteholders from the appropriate account or accounts maintained for the benefit
of Noteholders as specified in this 2007-1 Base Indenture or the applicable
Series Supplement. The Trustee may revoke such power and remove the Paying
Agent, if the Trustee determines in its sole discretion that the Paying Agent
shall have failed to perform its obligations under the Indenture in any material
respect or for other good cause. The Paying Agent shall be permitted to resign
as Paying Agent upon 30 days’ written notice to the Trustee. In the event that
any Paying Agent shall no longer be the Paying Agent, the Trustee shall appoint
a successor to act as Paying Agent (which shall be a Qualified Institution
or a
Qualified Trust Institution and may be the Trustee) with the consent of each
Issuer. Any reference in the Indenture to the Paying Agent shall include any
co-paying agent unless the context requires otherwise.
(b) The
Trustee shall cause each Paying Agent (other than itself) to execute and deliver
to the Trustee an instrument in which such Paying Agent shall agree with the
Trustee (and to the extent that the Trustee is acting as Paying Agent, the
Trustee hereby so agrees in respect of clauses
(i)
and
(v)
below)
that such Paying Agent will:
(i) hold
all
sums held by it for the payment of amounts due with respect to the Notes in
trust for the benefit of the Persons entitled thereto until such sums shall
be
paid to such Persons or otherwise disposed of as herein provided and pay such
sums to such Persons as herein provided;
(ii) give
the
Trustee notice of any default by the Issuers of which it has actual knowledge
in
the making of any payment required to be made with respect to the
Notes;
(iii) at
any
time during the continuance of any such default, upon the written request of
the
Trustee, forthwith pay to the Trustee all sums so held in trust by such Paying
Agent;
(iv) immediately
resign as a Paying Agent and forthwith pay to the Trustee all sums held by
it in
trust for the payment of the Notes if at any time it ceases to meet the
standards required to be met by a Trustee hereunder at the time of its
appointment; and
(v) comply
with all requirements of the Code with respect to the withholding from any
payments made by it on any Notes of any applicable withholding taxes imposed
thereon and with respect to any applicable reporting requirements in connection
therewith.
An
institution succeeding to the corporate agency business of the Paying Agent
shall continue to be the Paying Agent without the execution or filing of any
paper or any further act on the part of the Trustee or such Paying
Agent.
8
(c) Subject
to the terms of any Enhancement Agreement and all applicable laws with respect
to escheat of funds, any money held by the Trustee or any Paying Agent or a
Clearing Agency or a Foreign Clearing Agency in trust for the payment of any
amount due with respect to any Note and remaining unclaimed for two (2) years
after such amount has become due and payable shall be discharged from such
trust
and be paid to the order of the Issuers on Company Request. The Holder of such
Note shall thereafter, as an unsecured general creditor, look only to the
Issuers (and not to any Financial Insurance Provider) for payment thereof (but
only to the extent of the amounts so paid to any Issuer), and all liability
of
the Trustee, such Paying Agent, such Clearing Agency, such Foreign Clearing
Agency or any Financial Insurance Provider with respect to such trust money
shall thereupon cease; provided,
however,
that
the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Issuers cause to be published once, in
a
newspaper published in the English language, customarily published on each
Business Day and of general circulation in New York City, and in a newspaper
customarily published on each Business Day and of general circulation in London,
notice that such money remains unclaimed and that, after a date specified
therein, which shall not be less than thirty (30) days from the date of such
publication, any unclaimed balance of such money then remaining will be repaid
to the Issuers. The Trustee may also adopt and employ, at the expense of the
Issuers, any other reasonable means of notification of such
repayment.
Section
2.8. Noteholder
List.
The
Trustee will furnish or cause to be furnished by the Registrar to any Issuer,
any Financial Insurance Provider or the Paying Agent, within five (5) Business
Days after receipt by the Trustee of a request therefor from such Issuer,
Financial Insurance Provider or the Paying Agent, respectively, in writing,
a
list in such form as such Issuer, Financial Insurance Provider or the Paying
Agent may reasonably require, of the names and addresses of the Noteholders
as
of the most recent Record Date for payments to such Noteholders. Unless
otherwise provided in the applicable Series Supplement, Holders of Notes of
any
Series having an aggregate principal amount aggregating not less than 10% of
the
Aggregate Note Balance of such Series (the “Applicants”) may apply in writing to
the Trustee, and if such application states that the Applicants desire to
communicate with other Noteholders with respect to their rights under the
Indenture or under the Notes and is accompanied by a copy of the communication
which such Applicants propose to transmit, then the Trustee, after having been
adequately indemnified by such Applicants for its costs and expenses, shall
afford or shall cause the Registrar to afford such Applicants access during
normal business hours to the most recent list of Noteholders held by the Trustee
and shall give the Issuers notice that such request has been made, within five
(5) Business Days after the receipt of such application. Such list shall be
as
of a date no more than forty-five (45) days prior to the date of receipt of
such
Applicants’ request. Every Noteholder, by receiving and holding a Note, agrees
with the Trustee that neither the Trustee nor the Registrar shall be held
accountable by reason of the disclosure of any such information as to the names
and addresses of the Noteholders hereunder, regardless of the source from which
such information was obtained.
The
Trustee shall preserve in as current a form as is reasonably practicable the
most recent list available to it of the names and addresses of the Noteholders.
If the Trustee is not the Registrar, the Issuers shall furnish, or cause to
be
furnished, to the Trustee at least seven (7) Business Days before each Payment
Date (or such shorter period as is acceptable to the Trustee) and at such other
time as the Trustee may request in writing, a list in such form and as of such
date as
9
Section
2.9. Persons
Deemed Owners.
Prior
to due presentation of a Note for registration of transfer, the Trustee, the
Paying Agent, any Financial Insurance Provider and the Registrar may treat
the
Person in whose name any Note is registered as the owner of such Note for the
purpose of receiving payments pursuant to the Indenture and for all other
purposes whatsoever, and none of the Trustee, the Paying Agent, any Financial
Insurance Provider or the Registrar shall be affected by any notice to the
contrary.
Section
2.10. Replacement
Notes.
(a)
If (i)
any mutilated Note is surrendered to the Trustee, or the Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note,
and
(ii) there is delivered to the Trustee and any Financial Insurance Provider
such
security or indemnity as may be required by each of them to hold the Issuers,
such Financial Insurance Provider and the Trustee harmless then, in the absence
of notice to the Issuers, the Registrar, any Financial Insurance Provider or
the
Trustee that such Note has been acquired by a protected purchaser (within the
meaning of Section 8-303 of the New York UCC), and provided that the
requirements of Section 8-405 of the New York UCC (which generally permit the
Issuers to impose reasonable requirements) are met, each Issuer shall execute
and upon its request the Trustee shall authenticate and deliver, in exchange
for
or in lieu of any such mutilated, destroyed, lost or stolen Note, a replacement
Note of like tenor and aggregate principal amount; provided,
however,
that if
any such destroyed, lost or stolen Note, but not a mutilated Note, shall have
become or within seven (7) days shall be due and payable or shall have been
called for redemption, instead of issuing a replacement Note, the Issuers may
pay such destroyed, lost or stolen Note when so due or payable without surrender
thereof. If, after the delivery of such replacement Note or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a protected purchaser (within the meaning of Section 8-303 of the
New
York UCC) of the original Note in lieu of which such replacement Note was issued
presents for payment such original Note, the Issuers and the Trustee shall
be
entitled to recover such replacement Note (or such payment) from the Person
to
whom it was delivered or any Person taking such replacement Note from such
Person to whom such replacement Note was delivered or any assignee of such
Person, except a protected purchaser, and the Issuers, the Trustee and any
Financial Insurance Provider shall be entitled to recover upon the security
or
indemnity provided therefor to the extent of any loss, damage, cost or expense
incurred by the Issuers, the Trustee or such Financial Insurance Provider in
connection therewith.
(b) Upon
the
issuance of any replacement Note under this Section
2.10,
the
Issuers may require the payment by the Holder of such Note of a sum sufficient
to cover any tax or other governmental charge that may be imposed in relation
thereto and any other reasonable expenses (including the fees and expenses
of
the Trustee) connected therewith.
(c) Every
replacement Note issued pursuant to this Section
2.10
in
replacement of any mutilated, destroyed, lost or stolen Note shall be entitled
to all the benefits of the Indenture equally and proportionately with any and
all other Notes duly issued hereunder.
10
(d) The
provisions of this Section
2.10
are
exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes.
Section
2.11. Treasury
Notes.
In
determining whether the Noteholders of the required Aggregate Note Balance
of
Notes have concurred in any direction, waiver or consent, Notes owned either
beneficially or of record by any Issuer or any Affiliate of any Issuer shall
be
considered as though they are not Outstanding, except that for the purpose
of
determining whether the Trustee shall be protected in relying on any such
direction, waiver or consent, only Notes of which the Trustee has actual
knowledge or has received written notice of such ownership shall be so
disregarded. Absent actual knowledge by, or written notice to, the Trustee
of
such ownership, the Trustee shall not be deemed to have knowledge of the
identity of the individual beneficial owners of the Notes. The Issuers will
notify the Trustee of any Notes owned or pledged to the Issuers or any of their
Affiliates promptly upon the acquisition thereof or the creation of such
pledge.
Section
2.12. Temporary
Notes.
(a)
Pending
the preparation of Definitive Notes issued under Section
2.16,
the
Issuers may prepare and the Trustee, upon receipt of a Company Order, shall
authenticate and deliver temporary Notes of such Series. Temporary Notes shall
be substantially in the form of Definitive Notes of like Series but may have
variations that are not inconsistent with the terms of the Indenture as the
officers executing such Notes may determine, as evidenced by their execution
of
such Notes.
(b) If
temporary Notes are issued pursuant to Section
2.12(a)
above,
the Issuers will cause Definitive Notes to be prepared without unreasonable
delay. After the preparation of Definitive Notes, the temporary Notes shall
be
exchangeable for Definitive Notes upon surrender of the temporary Notes at
the
office or agency of the Issuers to be maintained as provided in Section
8.2,
without
charge to the Noteholder. Upon surrender for cancellation of any one or more
temporary Notes, each Issuer shall execute and the Trustee shall authenticate
and deliver in exchange therefor a like principal amount of Definitive Notes
of
authorized denominations. Until so exchanged, the temporary Notes shall in
all
respects be entitled to the same benefits under the Indenture as Definitive
Notes.
Section
2.13. Cancellation.
Each
Issuer may at any time deliver to the Trustee for cancellation any Notes
previously authenticated and delivered hereunder which such Issuer may have
acquired in any manner whatsoever, and all Notes so delivered shall be promptly
cancelled by the Trustee. The Registrar and the Paying Agent shall forward
to
the Trustee any Notes surrendered to them for registration of transfer, exchange
or payment. The Trustee shall cancel all Notes surrendered for registration
of
transfer, exchange, payment, replacement or cancellation. The Issuers may not
issue new Notes to replace Notes that they have redeemed or paid or that have
been delivered to the Trustee for cancellation. All cancelled Notes held by
the
Trustee shall be disposed of in accordance with the Trustee’s standard
disposition procedures unless by a written order, signed by two Authorized
Officers and received by the Trustee in a timely fashion, the Issuers shall
direct that cancelled Notes be returned to them.
11
Section
2.14. Principal
and Interest.
(a)
The
principal of each Series of Notes shall be payable at the times and in the
amount set forth in the applicable Series Supplement and in accordance with
Section
6.1.
(b) Each
Series of Notes shall accrue interest as provided in the applicable Series
Supplement and such interest shall be payable on each Payment Date for such
Series in accordance with Section
6.1
and the
applicable Series Supplement.
(c) Except
as
provided in the following sentence, the Person in whose name any Note is
registered at the close of business on any Record Date with respect to a Payment
Date for such Note shall be entitled to receive the principal and interest
payable on such Payment Date notwithstanding the cancellation of such Note
upon
any registration of transfer, exchange or substitution of such Note subsequent
to such Record Date. Any interest payable at maturity shall be paid to the
Person to whom the principal of such Note is payable.
(d) If
the
Issuers default in the payment of interest on the Notes of any Series, such
interest, to the extent paid on any date that is more than five (5) Business
Days after the applicable due date, shall, at the option of the Issuers (and,
so
long as a Financial Insurance Provider is the Controlling Party, with the
consent of the Controlling Party), cease to be payable to the Persons who were
Noteholders of such Series at the applicable Record Date (unless the Financial
Insurance Provider, if any, has made payment thereof to the Noteholders) and
the
Issuers shall pay the defaulted interest in any lawful manner, plus, to the
extent lawful, interest payable on the defaulted interest, to the Persons who
are Noteholders of such Series on a subsequent special record date which date
shall be at least five (5) Business Days prior to the payment date, at the
rate
provided in the Indenture and in the Notes of such Series. The Issuers shall
fix
or cause to be fixed each such special record date and payment date, and at
least fifteen (15) days before the special record date. The Issuers (or the
Trustee, in the name of and at the expense of the Issuers) shall mail to
Noteholders of such Series a notice that states the special record date, the
related payment date and the amount of such interest to be paid.
Section
2.15. Book-Entry
Notes.
(a)
Unless
otherwise provided in any applicable Series Supplement, the Notes of each
Series, upon original issuance, shall be issued in the form of one or more
Global Notes representing the Book-Entry Notes, to be delivered to the
depository specified in such Series Supplement (the “Depository”)
which
shall be the Clearing Agency or the Foreign Clearing Agency, on behalf of such
Series. The Notes of each Series shall, unless otherwise provided in the
applicable Series Supplement, initially be registered on the Note Register
in
the name of the Clearing Agency, the Foreign Clearing Agency, the nominee of
the
Clearing Agency or the nominee of the Foreign Clearing Agency. No Note Owner
will receive a definitive note representing such Note Owner’s interest in the
related Series of Notes, except as provided in Section
2.16.
Unless
and until definitive, fully registered Notes (“Definitive
Notes”)
of any
Series have been issued to Note Owners pursuant to Section
2.16:
(i) the
provisions of this Section
2.15
shall be
in full force and effect with respect to such Series:
(ii) the
Paying Agent, the Registrar, any Financial Insurance Provider and the Trustee
may deal with the Clearing Agency or the Foreign Clearing Agency and
the
12
(iii) to
the
extent that the provisions of this Section
2.15
conflict
with any other provisions of the Indenture, the provisions of this Section
2.15
shall
control;
(iv) subject
to the rights of the Controlling Party under the Indenture, whenever the
Indenture requires or permits actions to be taken based upon instructions or
directions of Holders of Notes evidencing a specified percentage of the
Outstanding principal amount of the Notes, the applicable Clearing Agency shall
be deemed to represent such percentage only to the extent that it has received
instructions to such effect from Note Owners and/or their related Clearing
Agency Participants owning or representing, respectively, such required
percentage of the beneficial interest in the Notes and has delivered such
instructions to the Trustee; and
(v) subject
to the rights of the Controlling Party under the Indenture, the rights of Note
Owners of each such Series shall be exercised only through the applicable
Clearing Agency or Foreign Clearing Agency and their related Clearing Agency
Participants and shall be limited to those established by law and agreements
between such Note Owners and the Clearing Agency or Foreign Clearing Agency
and/or the Clearing Agency Participants, and all references in the Indenture
to
actions by the Noteholders shall refer to actions taken by the Clearing Agency
or the Foreign Clearing Agency upon instructions from the Clearing Agency
Participants, and all references in the Indenture to distributions, notices,
reports and statements to the Noteholders shall refer to distributions, notices,
reports and statements to the Clearing Agency or the Foreign Clearing Agency,
as
registered holder of the Notes of such Series for distribution to the Note
Owners in accordance with the procedures of the Clearing Agency or Foreign
Clearing Agency. Unless and until Definitive Notes of such Series are issued
pursuant to Section
2.16,
the
applicable Clearing Agencies will make book-entry transfers among their related
Clearing Agency Participants and receive and transmit payments of principal
and
interest on the Notes to such Clearing Agency Participants.
Section
2.16. Definitive
Notes.
If (i)
(A) the Issuers advise the Trustee in writing that the Clearing Agency or the
Foreign Clearing Agency is no longer willing or able to discharge properly
its
responsibilities as Depository, and (B) the Trustee or the Issuers are unable
to
locate a qualified successor, (ii) the Issuers, at their option, advise the
Trustee in writing that they elect to terminate the book-entry system through
the Clearing Agency or Foreign Clearing Agency with respect to any Series or
(iii) after the occurrence of an Event of Default, Note Owners of more than
50%
of the Aggregate Note Balance of a Series of Notes advise the Trustee and the
applicable Clearing Agency or the Foreign Clearing Agency through the applicable
Clearing Agency Participants in writing that the continuation of a book-entry
system through the applicable Clearing Agency or Foreign Clearing Agency is
no
longer in the best interests of such Note Owners, the Trustee shall notify
all
Note Owners of such Series, through the applicable Clearing Agency Participants,
of the occurrence of any such event and of the availability of Definitive Notes
to Note Owners of such Series requesting the same. Upon surrender to the Trustee
of the Notes of such Series by the applicable Clearing Agency or Foreign
Clearing
13
Section
2.17. Tax
Treatment.
The
Issuers have structured the Indenture and the Notes have been (or will be)
issued with the intention that the Notes will qualify under applicable tax
law
as indebtedness of the Issuers and any entity acquiring any direct or indirect
interest in any Note by acceptance of its Notes (or, in the case of a Note
Owner, by virtue of such Note Owner’s acquisition of a beneficial interest
therein) agrees to treat the Notes (or beneficial interests therein) for
purposes of federal, state and local and income or franchise taxes and any
other
tax imposed on or measured by income, as indebtedness of the Issuers. Each
Noteholder agrees that it will cause any Note Owner acquiring an interest in
a
Note through it to comply with the Indenture as to treatment as indebtedness
for
such tax purposes.
Section
2.18. CUSIP
Numbers.
The
Issuers may use “CUSIP” numbers in respect of any Series of Notes (if then
generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices
of redemption in respect of such Series of Notes as a convenience to Holders;
provided that any such notice may state that no representation is made as to
the
correctness of such numbers either as printed on the Notes of such Series or
as
contained in any notice of a redemption and that reliance may be placed only
on
the other identification numbers printed on the Notes of such Series, and any
such redemption shall not be affected by any defect in or omission of such
numbers. The Issuers will promptly notify the Trustee in writing of any change
in any such “CUSIP” numbers.
ARTICLE
3.
SECURITY
Section
3.1. Grant
of Security Interest.
(a)
To
secure the Issuer Obligations, USF hereby pledges, assigns, conveys, delivers,
transfers and sets over to the Trustee, for the benefit of the Noteholders
and,
to the extent provided in any Series Supplement, any Enhancement Providers
(including any Financial Insurance Provider) and any counterparty to an interest
rate swap agreement with respect to the Notes (collectively, the “Secured
Parties”),
and
hereby grants to the Trustee, for the benefit of the Secured Parties, a security
interest in, all of USF’s right, title and interest in, to and under all of the
following property whether now or hereafter existing, acquired or created (all
of the foregoing being referred to as the “USF
Collateral”):
(i) each
Collateral Agreement to which it is a party, including all monies due and to
become due to USF under or in connection with such Collateral
Agreements,
14
(ii) the
Box
Truck SPV Membership Interests, including all rights of USF as a Member under
each Box Truck SPV Limited Liability Company Agreement, including all moneys
and
other property distributable thereunder to USF and all rights, remedies, powers,
privileges and claims of USF against any other party under or with respect
to
each Box Truck SPV Limited Liability Company Agreement (whether arising pursuant
to the terms of such Box Truck SPV Limited Liability Company Agreement or
otherwise available to USF at law or in equity), the right to enforce each
Box
Truck SPV Limited Liability Company Agreement and to give or withhold any and
all consents, requests, notices, directions, approvals, extensions or waivers
under or with respect to each Box Truck SPV Limited Liability Company
Agreement;
(iii) the
Box
Truck Collection Account, all monies on deposit from time to time in the Box
Truck Collection Account and all Proceeds thereof;
(iv) the
Box
Truck Purchase Account, all monies on deposit from time to time in the Box
Truck
Purchase Account and all Proceeds thereof;
(v) each
Series Account, all monies on deposit from time to time in such Series Account
and all Proceeds thereof;
(vi) all
Investment Property credited to the Issuer Accounts;
(vii) all
additional property that may from time to time hereafter (pursuant to the terms
of any Series Supplement or otherwise) be subjected to the grant and pledge
hereof by USF or by anyone on its behalf; and
(viii) to
the
extent not otherwise included, all Proceeds and products of any and all of
the
foregoing and all collateral security and guarantees given by any Person with
respect to any of the foregoing.
(b) To
secure
the Issuer Obligations, each Box Truck SPV hereby pledges, assigns, conveys,
delivers, transfers and sets over to the Trustee, for the benefit of the Secured
Parties, and hereby grants to the Trustee, for the benefit of the Secured
Parties, a security interest in, all of such Box Truck SPV’s right, title and
interest in, to and under all of the following property whether now or hereafter
existing, acquired or created (all of the foregoing being referred to as the
“Box
Truck SPV Collateral”
and,
together with the USF Collateral, the “Collateral”):
15
(i) all
trucks owned by such Box Truck SPV, and all Certificates of Title with respect
thereto;
(ii) all
payments under insurance policies or any warranty payable by reason of loss
or
damage to, or otherwise with respect to, any of the trucks owned by such Box
Truck SPV;
(iii) all
proceeds from the sale or other disposition of any truck owned by such Box
Truck
SPV, including all monies due in respect of any truck under the SPV Fleet Owner
Agreement;
(iv) the
SPV
Fleet Owner Agreement and any collateral pledged to such Box Truck SPV
(including the rights of the Fleet Manager under the Rental Company Contracts,
to the extent so pledged under the SPV Fleet Owner Agreement) to secure the
Fleet Manager’s obligations thereunder including all payments due to such Box
Truck SPV under the SPV Fleet Owner Agreement, including all Weekly Fleet Owner
Payments, Monthly Fleet Owner Payments and Monthly Advances, in each case
allocable to the Box Trucks owned by such Box Truck SPV, and all rights,
remedies, powers, privileges and claims of such Box Truck SPV (but not its
obligations) against any other party under or with respect to the SPV Fleet
Owner Agreement (whether arising pursuant to the terms of the SPV Fleet Owner
Agreement or any other agreements or otherwise available to the Box Truck SPV
at
law or in equity), the right to enforce the SPV Fleet Owner Agreement, any
Rental Company Contract (to the extent so pledged under the SPV Fleet Owner
Agreement) or any other agreement and to give or withhold any and all consents,
requests, notices, directions, approvals, extensions or waivers under or with
respect to the SPV Fleet Owner Agreement, any Rental Company Contract (with
respect to any Rental Company Contract, to the extent so pledged in the SPV
Fleet Owner Agreement) or any other agreement or the obligations of any party
thereunder;
(v) each
other Collateral Agreement to which such Box Truck SPV is a party, including
all
monies due and to become due to such Box Truck SPV under or in connection with
such Collateral Agreements, whether payable as distributions, fees, expenses,
costs, indemnities, insurance recoveries, damages for the breach of any of
the
Collateral Agreements or otherwise, all security for amounts payable thereunder
and all rights, remedies, powers, privileges and claims of such Box Truck SPV
against any party under or with respect to such Collateral Agreements (whether
arising pursuant to the terms of such Collateral Agreements or otherwise
available to such Box Truck SPV at law or in equity), the right to enforce
any
of such Collateral Agreements and to give or withhold any and all consents,
requests, notices, directions, approvals, extensions or waivers under or with
respect to such Collateral Agreements or the obligations of any party
thereunder;
(vi) the
Box
Truck Collection Account, all monies on deposit from time to time in the Box
Truck Collection Account and all Proceeds thereof;
(vii) the
Box
Truck Purchase Account, all monies on deposit from time to time in the Box
Truck
Purchase Account and all Proceeds thereof;
16
(viii) each
Series Account, all monies on deposit from time to time in such Series Account
and all Proceeds thereof;
(ix) all
Investment Property credited to the Issuer Accounts;
(x) all
additional property that may from time to time hereafter (pursuant to the terms
of any Series Supplement or otherwise) be subjected to the grant and pledge
hereof by such Box Truck SPV or by anyone on its behalf;
(xi) all
other
assets of each Box Truck SPV now owned or at any time hereafter acquired by
such
Box Truck SPV, including all of the following (each as defined in the New York
UCC): all accounts, chattel paper, deposit accounts, documents, general
intangibles, goods, instruments (including any non-cash proceeds notes),
securities accounts and other investment property, commercial tort claims,
letter-of-credit rights, letters of credit and money; and
(xii) to
the
extent not otherwise included, all Proceeds and products of any and all of
the
foregoing and all collateral security and guarantees given by any Person with
respect to any of the foregoing.
(c) Each
of
the foregoing grants is made in trust to secure the Issuer Obligations and
to
secure compliance with the provisions of this 2007-1 Base Indenture and any
Series Supplement, all as provided in the Indenture and the Related Documents.
The Trustee, as Trustee on behalf of the Secured Parties, acknowledges such
grants, accepts the trusts under this 2007-1 Base Indenture in accordance with
the provisions of the Indenture and, subject to Sections
11.1
and
11.2,
agrees
to perform its duties required in the Indenture to the best of its abilities
to
the end that the interests of the Secured Parties may be adequately and
effectively protected. The Collateral shall secure the Notes equally and ratably
without prejudice, priority or distinction.
(d) Each
Box
Truck SPV shall take, or shall cause to be taken, such action as shall be
necessary to ensure that the Lien of the Trustee on each Box Truck owned by
such
Box Truck SPV (whether owned as of the Effective Date or acquired thereafter)
is
duly noted on the Certificate of Title for such Box Truck in accordance with
all
applicable laws and regulations no later than the In-Service Date with respect
to such Box Truck. The original Certificates of Title shall be held by the
Administrator pursuant to, and in accordance with, the Administration Agreement.
The Administrator, or its agent, shall hold such titles as agent for each Box
Truck SPV, in trust for the benefit of the Secured Parties and the
Trustee.
(e) Each
Issuer hereby irrevocably authorizes the Trustee, at any time, and from time
to
time, to file or cause to be filed in any filing office in any jurisdiction
any
initial UCC financing statements and amendments thereto that (a) indicate the
Lien of the Trustee on the Collateral, regardless of whether any particular
asset comprised in the Collateral falls within the scope of Article 9 of the
UCC, and (b) provide any other information required for the sufficiency or
filing office acceptance of any UCC financing statement or amendment. Each
Issuer agrees to furnish any such information to the Trustee promptly upon
the
Trustee’s request. Each Issuer also ratifies its authorization for the Trustee
to have filed or caused to be filed in any
17
Section
3.2. Certain
Rights and Obligations of the Issuers Unaffected.
(a)
The
grant of the security interest in the Collateral to the Trustee on behalf of
the
Secured Parties shall not (i) relieve any Issuer from the performance of any
term, covenant, condition or agreement on such Issuer’s part to be performed or
observed under or in connection with any of the Collateral Agreements or (ii)
impose any obligation on the Trustee or any of the Secured Parties to perform
or
observe any such term, covenant, condition or agreement on any Issuer’s part to
be so performed or observed or impose any liability on the Trustee or any of
the
Secured Parties for any act or omission on the part of any Issuer or from any
breach of any representation or warranty on the part of any Issuer.
(b) Each
Issuer hereby agrees, jointly and severally, to indemnify and hold harmless
the
Trustee and each Secured Party (including, in each case, their respective
directors, officers, employees and agents) from and against any and all losses,
liabilities (including liabilities for penalties), claims, demands, actions,
suits, judgments, reasonable out-of-pocket costs and expenses arising out of
or
resulting from the security interest granted hereby, whether arising by virtue
of any act or omission on the part of any Issuer or otherwise, including the
reasonable out-of-pocket costs, expenses, and disbursements (including
reasonable attorneys’ fees and expenses) incurred by the Trustee and any Secured
Party in enforcing the Indenture or preserving any of their respective rights
to, or realizing upon, any of the Collateral; provided,
however,
the
foregoing indemnification shall not extend to any action by the Trustee or
a
Secured Party which constitutes bad faith, negligence or willful misconduct
by
the Trustee, such Secured Party or any other indemnified person hereunder.
The
indemnification provided for in this Section
3.2
shall
survive the removal of, or a resignation by, such Person as Trustee as well
as
the termination of the Indenture or any Series Supplement.
Section
3.3. Performance
of Collateral Agreements.
Upon
the occurrence of a default or breach by any Person party to a Collateral
Agreement, promptly following a request from the Trustee to do so and at the
Issuers’ expense, each Issuer agrees to take all such lawful action as permitted
under the Indenture as the Trustee may reasonably request to compel or secure
the performance and observance by the Administrator, the Nominee Titleholder,
the Fleet Manager or any other party to any Collateral Agreement of its
obligations to such Issuer, in each case in accordance with the applicable
terms
thereof, and to exercise any and all rights, remedies, powers and privileges
lawfully available to such Issuer to the extent and in the manner directed
by
the Trustee, including the transmission of notices of default and the
institution of legal or administrative actions or proceedings to compel or
secure performance by any party to any Collateral Agreement, of its obligations
thereunder. If (i) any Issuer shall have failed, within thirty (30) days of
receiving the direction of the Trustee, to take commercially reasonable action
to accomplish such directions of the Trustee, (ii) any Issuer refuses to take
any such action, or (iii) the Trustee reasonably determines that such action
must be taken immediately, the Trustee may take such previously directed action
and any related action permitted under the Indenture which the Trustee
thereafter determines is appropriate (without the need under this provision
or
any other provision under the Indenture to direct the applicable Issuer to
take
such action). Any
18
Section
3.4. Release
of Collateral.
(a)
From and
after the date on which the Fleet Manager or the applicable Box Truck SPV
receives the Disposition Proceeds from the sale of a Box Truck permitted in
accordance with Section
IV
of the
SPV Fleet Owner Agreement, such Box Truck and the Certificate of Title therefor
shall be automatically released from the Lien of this 2007-1 Base Indenture,
and
the Trustee shall execute such documents and instruments as such Box Truck
SPV
may reasonably request (including the power of attorney of the Trustee executed
on the Effective Date pursuant to Section
6.1(g)
of the
Administration Agreement appointing the Administrator to act as the agent of
the
Trustee in releasing the Lien of the Trustee on Box Trucks sold pursuant to
the
provisions of this Section
3.4(a)),
at
such Box Truck SPV’s expense, to evidence and/or accomplish such
release.
(b) The
Trustee shall, at such time as (i) there is no Note Outstanding and no other
Issuer Obligations owed to any Person and (ii) any Financial Insurance Provider
has been released from its obligations under any Enhancement Agreement (other
than in respect of any preference payments in respect of which such Financial
Insurance Provider is obligated under its Financial Insurance Policy), release
any remaining portion of the Collateral from the Lien of the Indenture and
release to the Issuers any funds then on deposit in the Box Truck Collection
Account, the Box Truck Purchase Account and any Series Accounts. The Trustee
shall release property from the Lien of the Indenture pursuant to this
Section
3.4(b)
only
upon receipt of a Company Order accompanied by an Officer’s Certificate meeting
the applicable requirements of Section
14.3.
Section
3.5. Stamp,
Other Similar Taxes and Filing Fees.
Each
Issuer, jointly and severally, shall indemnify and hold harmless the Trustee,
any Financial Insurance Provider and each Noteholder from any present or future
claim for liability for any stamp or other similar tax and any penalties or
interest with respect thereto, that may be assessed, levied or collected by
any
jurisdiction in connection with the Indenture or any Collateral. The Issuers
shall pay (or to the extent incurred by the Trustee or any Financial Insurance
Provider, reimburse the Trustee and such Financial Insurance Provider for)
any
and all amounts in respect of, all search, filing, recording and registration
fees, taxes, excise taxes and other similar imposts that may be payable or
determined to be payable in respect of the execution, delivery, performance
and/or enforcement of the Indenture.
19
ARTICLE
4.
REPORTS
Section
4.1. Agreement
of the Issuers to Provide Reports and Instructions.
(a) Reports
and Certificates.
Promptly following delivery to the Issuers, the Issuers shall forward, or cause
to be forwarded, to the Trustee and any Financial Insurance Provider copies
of
all reports, certificates, information or other materials delivered to any
Issuer pursuant to any Collateral Agreement.
(b) Monthly
Report.
On each
Determination Date, the Issuers shall forward, or cause to be forwarded, to
the
Trustee, the Paying Agent and any Enhancement Provider, an Officer’s Certificate
of each of the Issuers containing the information required by Exhibit
A
to this
2007-1 Base Indenture (each, a “Monthly
Report”).
(c) Monthly
Noteholders’ Statement.
On or
before each Determination Date, the Issuers shall furnish, or cause to be
furnished, to the Trustee and any Financial Insurance Provider a Monthly
Noteholders’ Statement substantially in the form provided in the applicable
Series Supplement.
(d) Instructions
as to Withdrawals and Payments.
The
Issuers will furnish, or cause to be furnished, to the Trustee or the Paying
Agent, as applicable, with a copy to any Financial Insurance Provider, written
instructions to make withdrawals and payments from the Box Truck Collection
Account, the Box Truck Purchase Account and any Series Accounts and to make
drawings under any Enhancement in accordance with the requirements of the
Indenture. The Trustee and the Paying Agent shall promptly follow any such
written instructions.
Section
4.2. Administrator.
Pursuant to the Administration Agreement, the Administrator has agreed to
provide certain reports, instructions and other services on behalf of the
Issuers. The Noteholders by their acceptance of the Notes consent to the
provision of such reports by the Administrator in lieu of the Trustee or the
Issuers.
Section
4.3. Reports
to Noteholders.
The
Trustee shall make each Monthly Noteholders’ Statement available on or prior to
each Payment Date to each Noteholder, with a copy to the Rating Agencies and
any
Enhancement Provider, in the method set forth in the applicable Series
Supplement.
Section
4.4. Annual
Noteholders’ Tax Statement.
Unless
otherwise specified in the applicable Series Supplement, on or before January
31
of each calendar year, beginning with calendar year 2008, the Paying Agent
shall
furnish to each Person who at any time during the preceding calendar year was
a
Noteholder a statement prepared by the Issuers containing the information which
is required to be contained in the Monthly Noteholders’ Statements with respect
to the Notes held by such Noteholder aggregated for such calendar year or the
applicable portion thereof during which such Person was a Noteholder, together
with such other customary information (consistent with the treatment of the
Notes as debt) as the Issuers deem necessary or desirable to enable the
Noteholders to prepare their tax returns with respect to their investment in
the
Notes (each such statement, an “Annual
Noteholders’ Tax Statement”).
Such
obligations of
20
Section
4.5. Rule
144A Information.
For so
long as any of the Notes are “restricted securities” within the meaning of Rule
144(a)(3) under the Securities Act, the Issuers agree to provide to any
Noteholder or Note Owner and to any prospective purchaser of Notes designated
by
such Noteholder or Note Owner upon the request of such Noteholder or Note Owner
or prospective purchaser, any information required to be provided to such holder
or prospective purchaser to satisfy the conditions set forth in Rule 144A(d)(4)
under the Securities Act.
21
ARTICLE
5.
ALLOCATION
AND APPLICATION OF COLLECTIONS
Section
5.1. Issuer
Accounts.
(a) Establishment
of the Box Truck Collection Account.
On or
prior to the Effective Date, the Issuers, the Box Truck Collection Account
Securities Intermediary and the Trustee shall have entered into the Box Truck
Collection Account Control Agreement pursuant to which the Box Truck Collection
Account shall be established and maintained for the benefit of the Secured
Parties. If at any time the Box Truck Collection Account is no longer an
Eligible Deposit Account, the Trustee shall, within five (5) Business Days,
notify the Issuers and any Financial Insurance Provider and cause the Box Truck
Collection Account to be moved to a Qualified Institution or a Qualified Trust
Institution and cause the depositary maintaining the new Box Truck Collection
Account to assume the obligations of the existing Box Truck Collection Account
Securities Intermediary under the Box Truck Collection Account Control
Agreement.
(b) Administration
of the Box Truck Collection Account.
All
amounts held in the Box Truck Collection Account shall be invested in accordance
with the Box Truck Collection Account Control Agreement at the written direction
of USF in Permitted Investments that mature, or that are payable or redeemable
upon demand of the holder thereof, on or prior to the dates specified in any
Series Supplement. In the absence of written investment instructions hereunder,
funds on deposit in the Box Truck Collection Account shall be invested at the
written direction of the Controlling Party, or if the Controlling Party gives
no
such direction, shall remain uninvested. USF shall not direct the disposal
of
any Permitted Investments prior to the maturity thereof to the extent such
disposal would result in a loss of the initial purchase price of such Permitted
Investment. On the Business Day immediately preceding each Payment Date, all
interest and other investment earnings (net of losses and investment expenses)
on Collections with respect to the Notes for such Payment Date shall be treated
as Collections and applied in accordance with any Series
Supplement.
(c) Establishment
of the Box Truck Purchase Account.
On or
prior to the Effective Date, the Issuers, the Box Truck Purchase Account
Securities Intermediary and the Trustee shall have entered into the Box Truck
Purchase Account Control Agreement pursuant to which the Box Truck Purchase
Account shall be established and maintained for the benefit of the Secured
Parties. If at any time the Box Truck Purchase Account is no longer an Eligible
Deposit Account, the Trustee shall, within five (5) Business Days, notify the
Issuers and any Financial Insurance Provider and cause the Box Truck Purchase
Account to be moved to a Qualified Institution or a Qualified Trust Institution
and cause the depositary maintaining the new Box Truck Purchase Account to
assume the obligations of the existing Box Truck Purchase Account Securities
Intermediary under the Box Truck Purchase Account Control
Agreement.
(d) Administration
of the Box Truck Purchase Account.
All
amounts held in the Box Truck Purchase Account shall be invested in accordance
with the Box Truck Purchase Account Control Agreement at the written direction
of USF in Permitted Investments that
22
(e) Establishment
of Series Accounts.
To the
extent specified in the Series Supplement with respect to any Series of Notes,
the Trustee may establish and maintain one or more Series Accounts to facilitate
the proper allocation of Collections in accordance with the terms of such Series
Supplement.
Section
5.2. Collections
and Allocations.
(a) Collections
in General.
Until
this 2007-1 Base Indenture is terminated pursuant to Section
12.1,
each
Issuer shall, and the Trustee is authorized to, cause all Collections due and
to
become due to be deposited in the following manner:
(i) all
payments of Weekly Fleet Owner Payments, Monthly Fleet Owner Payments, Monthly
Advances and any other payments under the SPV Fleet Owner Agreement shall be
paid directly by the Fleet Manager to the Trustee for deposit into the Box
Truck
Collection Account;
(ii) all
Disposition Proceeds shall be deposited directly into the Box Truck Collection
Account or shall be deposited into the Box Truck Collection Account within
two
(2) Business Days of receipt by the Fleet Manager; and
(iii) all
other
Collections from any other source shall be either paid directly into the Box
Truck Collection Account at such times as such amounts are due or deposited
by
the Fleet Manager into the Box Truck Collection Account within two (2) Business
Days of receipt by the Fleet Manager.
All
monies, instruments, cash and other proceeds received by the Trustee pursuant
to
this 2007-1 Base Indenture shall be immediately deposited in the Box Truck
Collection Account and shall be applied as provided in the applicable Series
Supplement.
(b) Fleet
Manager Withdrawal.
On the
Business Day preceding any Monthly Fleet Owner Payment Date, the Administrator
may direct the Trustee in writing (with a copy to any Financial Insurance
Provider) pursuant to the Administration Agreement to, and the Trustee shall,
withdraw from the Box Truck Collection Account and pay to the Fleet Manager
on
such Monthly Fleet Owner Payment Date any amount up to the Monthly Fleet Manager
Excess Amount, if any, for such Monthly Fleet Owner Payment Date (any such
payment, a “Fleet
Manager Withdrawal”).
23
Section
5.3. Determination
of Monthly Interest.
Monthly
payments of interest on each Series of Notes shall be determined, allocated
and
distributed in accordance with the procedures set forth in the applicable Series
Supplement.
Section
5.4. Determination
of Monthly Principal.
Monthly
payments of principal of each Series of Notes shall be determined, allocated
and
distributed in accordance with the procedures set forth in the applicable Series
Supplement. However, all principal of or interest on any Series of Notes shall
be due and payable no later than the Legal Final Maturity Date with respect
to
such Series.
Section
5.5. Misdirected
Collections.
Each
Issuer agrees that if any Collections are received by such Issuer in an account
other than the Box Truck Collection Account or in any other manner, such monies,
instruments, cash and other proceeds shall be, within one (1) Business Day
of
the identification of such payment, paid over to, the Trustee, with any
necessary endorsement.
[THE
REMAINDER OF ARTICLE 5 IS RESERVED AND MAY BE SPECIFIED IN ANY SUPPLEMENT WITH
RESPECT TO ANY SERIES.]
ARTICLE
6.
DISTRIBUTIONS
Section
6.1. Distributions
in General.
(a)
Unless
otherwise specified in the applicable Series Supplement, on each Payment Date,
the Paying Agent shall pay to the Noteholders of record on the preceding Record
Date the amounts payable thereto hereunder by check mailed first-class postage
prepaid to such Noteholder at the address for such Noteholder appearing in
the
Note Register except that with respect to Notes registered in the name of a
Clearing Agency or a Foreign Clearing Agency or its nominee, such amounts shall
be payable by wire transfer of immediately available funds released by the
Paying Agent from the applicable Series Account no later than Noon (New York
City time) on the Payment Date for credit to the account designated by such
Clearing Agency or Foreign Clearing Agency or its nominee, as applicable;
provided,
however,
that,
the final principal payment due on a Note shall only be paid to the Noteholder
on due presentment of such Note for cancellation in accordance with the
provisions of the Note.
(b) Unless
otherwise specified in the applicable Series Supplement, (i) all distributions
to Noteholders of all Classes within a Series of Notes will have the same
priority and (ii) in the event that on any date of determination the amount
available to make payments to the Noteholders is not sufficient to pay all
sums
required to be paid to such Noteholders on such date, then each Class of
Noteholders will receive its ratable share (based upon the aggregate amount
due
to such Class of Noteholders) of the aggregate amount available to be
distributed in respect of the Notes.
24
ARTICLE
7.
REPRESENTATIONS
AND WARRANTIES
Each
Issuer hereby represents and warrants, for the benefit of the Trustee and the
Secured Parties, as follows as of each Closing Date and as of each Subsequent
Funding Date:
Section
7.1. Existence
and Power.
Such
Issuer (a) is a limited liability company duly formed, validly existing and
in
good standing under the laws of the State of Nevada, (b) is duly qualified
to do
business as a foreign limited liability company and in good standing under
the
laws of each jurisdiction where the character of its property, the nature of
its
business or the performance of its obligations under the Related Documents
make
such qualification necessary, and (c) has all limited liability company powers
and all governmental licenses, authorizations, consents and approvals required
to carry on its business as now conducted and for purposes of the transactions
contemplated by this 2007-1 Base Indenture and the other Related Documents,
except, in the case of clause
(b),
for
such failures to be so qualified as could not reasonably be expected to result
in a Material Adverse Effect.
Section
7.2. Limited
Liability Company and Governmental Authorization.
The
execution, delivery and performance by such Issuer of this 2007-1 Base
Indenture, the related Series Supplement and each other Related Document to
which it is a party (a) is within such Issuer’s limited liability company
powers, (b) has been duly authorized by all necessary limited liability company
action, (c) requires no action by or in respect of, or filing with, any
Governmental Authority which has not been obtained and (d) does not contravene,
or constitute a default under, any Requirement of Law with respect to such
Issuer or Contractual Obligation with respect to such Issuer or result in the
creation or imposition of any Lien on any property of such Issuer, except for
Permitted Liens. This 2007-1 Base Indenture and each of the other Related
Documents to which such Issuer is a party has been executed and delivered by
a
duly Authorized Officer of such Issuer.
Section
7.3. Binding
Effect.
This
2007-1 Base Indenture and each other Related Document to which such Issuer
is a
party is a legal, valid and binding obligation of such Issuer enforceable
against such Issuer in accordance with its terms (except as such enforceability
may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and other similar laws affecting creditors’ rights generally or by
general equitable principles, whether considered in a proceeding at law or
in
equity and by an implied covenant of good faith and fair dealing or, solely
in
the case of any Related Document providing for indemnification for violations
of
federal securities laws, public policy considerations).
Section
7.4. Financial
Information; Financial Condition.
All
reports, certificates, information or other materials which have been or shall
hereafter be furnished by such Issuer to the Trustee, any Financial Insurance
Provider and the Rating Agencies pursuant to Section
4.1
do and
will, to the extent applicable, present fairly the financial condition of the
entities involved as of the dates thereof and the results of their operations
for the periods covered thereby.
Section
7.5. Litigation.
There
is no action, suit or proceeding pending against or, to the knowledge of such
Issuer, threatened against or affecting such Issuer before any court
or
25
Section
7.6. No
ERISA Plan.
Such
Issuer has not established and does not maintain or contribute to any Pension
Plan and will not do so as long as any Notes are Outstanding.
Section
7.7. Tax
Filings and Expenses.
Such
Issuer has filed all federal, state and local tax returns and all other tax
returns which, to the knowledge of such Issuer, are required to be filed by
it
(whether informational returns or not), and has paid all taxes due, if any,
pursuant to said returns or pursuant to any assessment received by such Issuer,
except such taxes, if any, as are being contested in good faith and for which
adequate reserves have been set aside on its books and are being maintained
in
accordance with GAAP. Such Issuer has not received in writing any proposed
tax
assessment. Such Issuer has paid all fees and expenses required to be paid
by it
in connection with the conduct of its business, the maintenance of its existence
and its qualification as a foreign limited liability company authorized to
do
business in each state in which it is required to so qualify, except where
the
failure to pay any such fees and expenses is not reasonably likely to have
a
Material Adverse Effect.
Section
7.8. Disclosure.
All
certificates, reports, statements, documents and other information furnished
to
the Trustee or any Financial Insurance Provider by or on behalf of such Issuer
pursuant to any provision of this 2007-1 Base Indenture or any Related Document,
or in connection with or pursuant to any amendment or modification of, or waiver
under, this 2007-1 Base Indenture or any Related Document, were, at the time
the
same were so furnished, complete and correct to the extent necessary to give
the
Trustee or such Financial Insurance Provider (when taken together with all
other
information furnished to the Trustee prior thereto or contemporaneously
therewith by or on behalf of such Issuer) true and accurate knowledge of the
subject matter thereof in all material respects, and the furnishing of the
same
to the Trustee or such Financial Insurance Provider shall constitute a
representation and warranty by such Issuer made on the date the same are
furnished to the Trustee or such Financial Insurance Provider to the effect
specified in this Section
7.8.
Section
7.9. Investment
Company Act; Securities Act.
Such
Issuer is not, and is not controlled by, an “investment company” within the
meaning of, and is not required to register as an “investment company” under,
the Investment Company Act.
Section
7.10. Regulations
T, U and X.
The
proceeds of the Notes will not be used to purchase or carry any “margin stock”
(as defined or used in the regulations of the Board of Governors of the Federal
Reserve System, including Regulations T, U and X thereof). Such Issuer is not
engaged in the business of extending credit for the purpose of purchasing or
carrying any margin stock.
Section
7.11. No
Consent.
No
consent, action by or in respect of, approval or other authorization of, or
registration, declaration or filing with, any Governmental Authority or other
Person is required for the valid execution and delivery by such Issuer of this
2007-1 Base
26
Section
7.12. Solvency.
Both
before and after giving effect to the transactions contemplated by this 2007-1
Base Indenture and the other Related Documents, such Issuer is solvent within
the meaning of the Bankruptcy Code and such Issuer is not the subject of any
voluntary or involuntary case or proceeding seeking liquidation, reorganization
or other relief with respect to itself or its debts under any bankruptcy or
insolvency law and no Event of Bankruptcy has
occurred with respect to such Issuer.
Section
7.13. Ownership
of Membership Interests.
All of
the issued and outstanding membership interests of such Issuer are owned by
(i)
RTAC, in the case of USF, or (ii) USF, in the case of each other Issuer, in
each
case all of which membership interests have been validly issued, are fully
paid
and non-assessable and are owned beneficially and of record by (x) RTAC, in
the
case of USF, or (y) USF, in the case of each other Issuer and, in each case,
are
owned free and clear of all Liens (other than Permitted Liens). USF has no
subsidiaries other than (i) the Box Truck SPVs and (ii) any Permitted Note
Issuance SPVs.
Section
7.14. Security
Interests.
(a)
Such
Issuer owns and has good and marketable title to the USF Collateral, in the
case
of USF, or the Box Truck SPV Collateral pledged by such Issuer, in the case
of
each other Issuer, in all cases, (x) as of the Effective Date, free and
clear of all Liens other than the Liens created pursuant to the Indenture,
and
(y) as of any other date thereafter, free and clear of all Liens other than
Permitted Liens. Such Issuer’s rights under the Collateral Agreements to which
it is a party constitute general intangibles or accounts under the applicable
UCC. The Box Truck SPV Membership Interests constitute general intangibles
under
the applicable UCC. This 2007-1 Base Indenture constitutes a valid and
continuing Lien on the Collateral in favor of the Trustee on behalf of the
Secured Parties, which Lien on the Collateral has been perfected and is prior
to
all other Liens (other than Permitted Liens) and is enforceable as such as
against creditors of and purchasers from the Issuers in accordance with its
terms, except as such enforceability may be limited by bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar laws
affecting creditors’ rights generally or by general equitable principles,
whether considered in a proceeding at law or in equity and by an implied
covenant of good faith and fair dealing. Such Issuer has received all consents
and approvals required by the terms of the Collateral to the pledge of the
Collateral to the Trustee.
(b) Other
than the security interest granted to the Trustee hereunder, such Issuer has
not
pledged, assigned, sold or granted a security interest in the Collateral. As
of
the In-Service Date with respect to any Box Truck, all action necessary to
protect and perfect the Trustee’s security interest therein will have been duly
and effectively taken, including the actions described in Section
3.1(d).
All
other action necessary, including the filing of UCC-1 financing statements,
to
protect and perfect the Trustee’s security interest in all Collateral other than
Box Trucks has been duly and effectively taken. No security agreement, financing
statement, equivalent security or lien instrument or continuation statement
listing such Issuer as debtor covering all or any part of the Collateral is
on
file or of record in any jurisdiction, except such as
27
(c) All
authorizations in the Indenture for the Trustee to endorse checks, instruments
and securities and to file UCC financing statements, continuation statements,
security agreements and other instruments with respect to the Collateral and
to
take such other actions with respect to the Collateral authorized by the
Indenture are powers coupled with an interest and are irrevocable for so long
as
the Indenture has not been terminated in accordance with its terms.
(d) Such
Issuer’s legal name is U-Haul S Fleet, LLC, in the case of USF, 2007 TM-1, LLC,
in the case of TM Truck SPV, 2007 DC-1, LLC, in the case of DC Truck SPV, or
2007 EL-1, LLC, in the case of EL Truck SPV, and in each case its location
within the meaning of Section 9-307 of the applicable UCC is the State of
Nevada.
Section
7.15. Binding
Effect of Collateral Agreements.
Each of
the Collateral Agreements to which such Issuer is a party is in full force
and
effect and there are no (x) outstanding Enforcement Events, Termination
Events, Potential Enforcement Events or Potential Termination Events under
the
SPV Fleet Owner Agreement, (y) outstanding Administrator Defaults under the
Administration Agreement or (z) defaults by the Nominee Titleholder of any
of
its obligations or covenants under the Nominee Titleholder
Agreement.
Section
7.16. Non-Existence
of Other Agreements.
(a)
Other
than as permitted by Section
8.21,
Section
8.23
and
Section
8.31,
(i)
such Issuer is not a party to any contract or agreement of any kind or nature
and (ii) such Issuer is not subject to any obligations or liabilities of any
kind or nature in favor of any third party, including Contingent
Obligations.
(b) Such
Issuer has not engaged in any activities since its formation other than
(x) those incidental to its formation, the authorization and the issuance
of the initial Series of Notes and the execution of the Related Documents to
which it is a party, (y) solely in the case of USF, those incidental to the
formation of any Permitted Note Issuance SPV, the authorization and issuance
of
any Permitted Notes and the execution of any Permitted Note Issuance Related
Documents to which it is a party and (z) the performance of the activities
referred to in or contemplated by such agreements.
Section
7.17. Compliance
with Contractual Obligations and Laws.
Such
Issuer is not (i) in violation of the USF Limited Liability Agreement, in
the case of USF, or its Box Truck SPV Limited Liability Company Agreement,
in
the case of each other Issuer, (ii) in violation of any Requirement of Law
with
respect to such Issuer or (iii) in violation of any Contractual Obligation
with
respect to such Issuer.
Section
7.18. Eligible
Box Trucks.
Each
Box Truck owned by such Issuer was, on the date of acquisition thereof by such
Issuer, an Eligible Box Truck.
Section
7.19. SPV
Fleet Owner Agreement.
Each
Box Truck owned by such Issuer is, and since the later of (x) the Effective
Date
and (y) the date of the acquisition of such Box Truck by such Issuer has been,
subject to the SPV Fleet Owner Agreement.
28
Section
7.20. No
Employees.
Such
Issuer has no employees.
Section
7.21. Environmental
Matters.
Except
as could not reasonably be expected to result in a Material Adverse
Effect:
(a) such
Issuer: (i) is in compliance with all applicable Environmental Laws, (ii) holds
all Environmental Permits (each of which is in full force and effect), if any,
required for any of its current operations or for any property owned, leased,
or
otherwise operated by it and (iii) is in compliance with all of its
Environmental Permits;
(b) there
is
no judicial, administrative, or arbitral proceeding (including any notice of
violation or alleged violation) under or relating to any Environmental Law
to
which such Issuer, or to the knowledge of such Issuer will be, named as a party
that is pending or, to the knowledge of such Issuer, threatened;
(c) neither
such Issuer nor any of its Affiliates (in the case of such Affiliates, solely
with respect to assets of such Issuer) has not received any written request
for
information, or been notified in writing that it is a potentially responsible
party under or relating to the Federal Comprehensive Environmental Response,
Compensation and Liability Act or any similar Environmental Law;
(d) neither
such Issuer nor any of its Affiliates (in the case of such Affiliates, solely
with respect to assets of such Issuer) has not entered into or agreed to any
consent decree, order, or settlement or other agreement, and is not subject
to
any judgment, decree, or order or other agreement, in any judicial,
administrative, arbitral, or other forum for dispute resolution, in each case,
that would be expected to result in ongoing obligations or costs relating to
compliance with or liability under any Environmental Law; and
(e) neither
such Issuer nor any of its Affiliates (in the case of such Affiliates, solely
with respect to assets of such Issuer) has not assumed or retained, by contract
or conduct, any liabilities of any kind, fixed or contingent, known or unknown,
under any Environmental Law.
Section
7.22. Other
Representations.
All
representations and warranties of such Issuer made in each Related Document
to
which it is a party are true and correct and are repeated herein as though
fully
set forth herein.
ARTICLE
8.
COVENANTS
Section
8.1. Payment
of Notes.
The
Issuers shall pay the principal of and interest (and prepayment premium, if
any)
on the Notes when due pursuant to the provisions of this 2007-1 Base Indenture
and any applicable Series Supplement. Principal and interest shall be considered
paid on the date due if the Paying Agent holds on that date money designated
for
and sufficient to pay all principal and interest then due.
29
Section
8.2. Maintenance
of Office or Agency.
The
Issuers will maintain, or cause to be maintained, an office or agency (which
may
be an office of the Trustee, Registrar or co-registrar) where Notes may be
surrendered for registration of transfer or exchange, where notices and demands
to or upon the Issuers in respect of the Notes and the Indenture may be served,
and where, at any time when the Issuers are obligated to make a payment of
principal of and prepayment premium upon the Notes, the Notes may be surrendered
for payment. The Issuers will give, or cause to be given, prompt written notice
to the Trustee and any Financial Insurance Provider of the location, and any
change in the location, of such office or agency. If at any time the Issuers
shall fail to maintain, or fail to cause to be maintained, any such required
office or agency or shall fail to furnish, or cause to be furnished, to the
Trustee and any Financial Insurance Provider the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office.
The
Issuers may also from time to time designate one or more other offices or
agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations. The Issuers will
give, or cause to be given, prompt written notice to the Trustee and any
Financial Insurance Provider of any such designation or rescission and of any
change in the location of any such other office or agency.
The
Issuers hereby designate the Corporate Trust Office as one such office or agency
of the Issuers.
Section
8.3. Payment
of Obligations.
Each
Issuer shall pay and discharge, at or before maturity, all of its respective
material obligations and liabilities, including tax liabilities and other
governmental claims, except where the same may be contested in good faith by
appropriate proceedings (provided that there is no resultant risk of any Lien
(other than a Permitted Lien) or forfeiture of any Collateral), and shall
maintain, in accordance with GAAP applied on a consistent basis, reserves as
appropriate for the accrual of any of the same.
Section
8.4. Maintenance
of Existence.
Each
Issuer shall maintain its existence as a limited liability company validly
existing, and in good standing under the laws of the State of Nevada and duly
qualified as a foreign limited liability company licensed under the laws of
each
state in which the failure to so qualify would be reasonably likely to result
in
a Material Adverse Effect.
Section
8.5. Compliance
with Requirements of Law
and
Contractual Obligations.
Each
Issuer shall comply in all respects with (i) all Requirements of Law with
respect to such Issuer and all applicable laws, ordinances, rules, regulations,
and requirements of Governmental Authorities (including ERISA and the rules
and
regulations thereunder) and (ii) all Contractual Obligations with respect to
such Issuer, except, in the case of clause
(i),
where
the necessity of compliance therewith is contested in good faith by appropriate
proceedings and where such noncompliance would not materially and adversely
affect the condition, financial or otherwise, operations, performance,
properties or prospects of such Issuer or its ability to carry out the
transactions contemplated in this 2007-1 Base Indenture and each other Related
Document; provided,
however,
such
noncompliance will not result in a Lien (other than a Permitted Lien) on, or
risk of forfeiture of, any of the Collateral.
30
Section
8.6. Inspection
of Property, Books and Records.
Each
Issuer shall keep proper books of record and account in which full, true and
correct entries shall be made of all dealings and transactions, business and
activities; and shall permit the Trustee and any Financial Insurance Provider
(or any agent thereof) to visit and inspect any of its properties, to examine
and make abstracts from any of its books and records and to discuss its affairs,
finances and accounts with its officers, directors, employees and independent
public accountants, all at such reasonable times upon reasonable notice and
as
often as may reasonably be requested.
Section
8.7. Compliance
with Collateral Agreements.
Each
Issuer shall comply with all of its obligations under the Collateral Agreements
to which it is a party. No Issuer will take any action which would permit the
Fleet Manager or any other Person to have the right to refuse to perform any
of
its respective obligations under any of the Collateral Agreements or any other
instrument or agreement included in the Collateral or that, other than in
accordance with the terms of the Indenture and the other Collateral Agreements,
would result in the amendment, waiver, hypothecation, subordination, termination
or discharge of, or impair the validity or effectiveness of, any Collateral
Agreement.
(a) Each
Issuer agrees that it shall not, without the prior written consent of the
Trustee acting at the direction of the Controlling Party, exercise any right,
remedy, power or privilege available to it with respect to any obligor under
a
Collateral Agreement or under any instrument or agreement included in the
Collateral, take any action to compel or secure performance or observance by
any
such obligor of its obligations to such Issuer or give any consent, request,
notice, direction, approval, extension or waiver with respect to any such
obligor.
(b) Upon
the
occurrence of a Termination Event under the SPV Fleet Owner Agreement, no Issuer
shall, without the prior written consent of the Trustee acting at the direction
of the Controlling Party, terminate the SPV Fleet Owner Agreement, and the
Issuers shall terminate the SPV Fleet Owner Agreement if and when so directed
by
the Trustee acting at the direction of the Controlling Party.
Section
8.8. Notice
of Defaults.
(a)
Each
Issuer shall, promptly upon becoming aware of any Default, Event of Default,
Potential Rapid Amortization Event, Rapid Amortization Event, Potential
Enforcement Event, Enforcement Event, Potential Termination Event, Termination
Event, Potential Administrator Default, Administrator Default or default by
the
Nominee Titleholder of any of its obligations or covenants under the Nominee
Titleholder Agreement or the existence of a Targeted Note Balance Shortfall,
give, or cause to be given, to the Trustee, each Enhancement Provider and the
Rating Agencies notice thereof, together with a certificate of the President,
Vice President or principal financial officer of such Issuer setting forth
the
details thereof and any action with respect thereto taken or contemplated to
be
taken by such Issuer.
(b) Each
Issuer shall, promptly upon becoming aware of any default under any Related
Document, give, or cause to be given, to the Trustee, each Enhancement Provider
and the Rating Agencies written notice thereof.
31
Section
8.9. Notice
of Material Proceedings.
Each
Issuer shall, promptly upon becoming aware thereof, give, or cause to be given,
to the Trustee, any Financial Insurance Provider and the Rating Agencies written
notice of the commencement or existence of (i) any litigation, arbitration
or administrative proceedings against such Issuer or any property of such Issuer
included in the Collateral and (ii) any proceeding by or before any
Governmental Authority against or affecting such Issuer, in each case, which
is
reasonably likely to have a material adverse effect on the business, condition
(financial or otherwise), results of operations, properties or performance
of
such Issuer or the ability of such Issuer to perform its obligations under
the
Indenture or under any other Related Document to which it is a party. In the
event that any such litigation, arbitration or proceeding shall have been
commenced, such Issuer shall keep the Trustee and the any Financial Insurance
Provider informed on a regular basis as reasonably requested by the Trustee
and
such Financial Insurance Provider regarding such litigation, arbitration or
proceeding. The Trustee and such Financial Insurance Provider shall be entitled,
but not obligated, to consult with such Issuer and any of their Affiliates
with
respect to, and participate in the defense or resolution of, any such
litigation, arbitration or proceeding.
Section
8.10. Further
Requests.
Each
Issuer shall promptly furnish, or cause to be furnished, to the Trustee, each
Enhancement Provider and the Rating Agencies such other information as, and
in
such form as, the Trustee or such Enhancement Provider or the Rating Agencies
may reasonably request in connection with the transactions contemplated hereby
or by another Related Document.
Section
8.11. Further
Assurances.
(a)
Each
Issuer shall do, or cause to be done, such further acts and things, and execute
and deliver to the Trustee such additional assignments, agreements, powers
and
instruments, as are necessary or desirable to maintain the security interest
of
the Trustee in the Collateral on behalf of the Secured Parties as a perfected
security interest subject to no prior Liens (other than Permitted Liens), to
carry into effect the purposes of the Indenture and the other Related Documents
and to better assure and confirm unto the Trustee and the Secured Parties their
rights, powers and remedies hereunder including the filing of any financing
or
continuation statements under the UCC in effect in any jurisdiction with respect
to the Liens granted hereby. If any Issuer fails to perform any of its
agreements or obligations under this Section
8.11(a),
the
Trustee may perform such agreement or obligation, and the reasonable expenses
of
the Trustee incurred in connection therewith shall be payable by the Issuers
upon the Trustee’s demand therefor; provided
that, so
long as a Financial Insurance Provider is the Controlling Party, the Trustee
may
only take such actions with the consent of, and shall take such actions at
the
direction of, the Controlling Party; provided further
that if
the Trustee refuses to or does not promptly perform any of its agreements or
obligations under this Section 8.11(a),
the
Financial Insurance Provider, if any, may perform such agreement or obligation,
and the reasonable expenses of such Financial Insurance Provider incurred in
connection therewith shall be payable by the Issuers upon such Financial
Insurance Provider’s demand therefor. Each Issuer hereby authorizes the Trustee
and any Financial Insurance Provider to file, or cause to be filed, any such
financing statement or continuation statement in order to perfect or maintain
the Lien created by this 2007-1 Base Indenture in the Collateral. If any amount
payable under or in connection with any of the Collateral shall be or become
evidenced by any promissory note, chattel paper or other instrument, such note,
chattel paper or instrument shall be deemed to be held in trust and immediately
pledged and physically delivered to the Trustee hereunder, and shall, subject
to
the rights of any Person in whose favor a prior
32
(b) Each
Box
Truck SPV shall have delivered to the Trustee on or prior to the Effective
Date
and shall deliver on an ongoing basis, as applicable, an Officer’s Certificate
certifying that it has caused or is causing the Trustee’s name to be noted as
lienholder on the Certificate of Title for each Box Truck owned by such Box
Truck SPV. Unless otherwise provided pursuant to the terms of the Administration
Agreement, each Box Truck SPV shall cause the Administrator to hold the original
Certificates of Title for each Box Truck owned by such Box Truck SPV as agent
for such Box Truck SPV in trust for the benefit of the Trustee, on behalf of
the
Secured Parties, pursuant to the Administration Agreement.
(c) Each
Box
Truck SPV, through the Nominee Titleholder in accordance with the terms of
the
Nominee Titleholder Agreement, shall maintain good and marketable title to
each
Box Truck owned by it.
(d) If
any
Issuer shall obtain an interest in any commercial tort claim (as such term
is
defined in the New York UCC) such Issuer shall within ten (10) Business Days
of
becoming aware that it has obtained such an interest execute and deliver
documentation reasonably acceptable to the Controlling Party granting a security
interest to the Trustee in and to such commercial tort claim.
(e) Each
Issuer shall warrant and defend the Trustee’s right, title and interest in and
to the Collateral and the income, distributions and Proceeds thereof, for the
benefit of the Trustee on behalf of the Secured Parties, against the claims
and
demands of all Persons whomsoever.
(f) On
or
before March 31 of each calendar year, commencing with March 31, 2008, the
Issuers shall furnish to the Trustee and any Financial Insurance Provider an
Opinion of Counsel either stating that, in the opinion of such counsel, such
action has been taken with respect to the recording, filing, re-recording and
refiling of this 2007-1 Base Indenture, any indentures supplemental hereto
and
any other requisite documents and with respect to the execution and filing
of
any financing statements and continuation statements as are necessary to
maintain the perfection of the Lien created by this 2007-1 Base Indenture in
the
Collateral and reciting the details of such action or stating that in the
opinion of such counsel no such action is necessary to maintain the perfection
of such Lien. Such Opinion of Counsel shall also describe the recording, filing,
re-recording and refiling of this 2007-1 Base Indenture, any indentures
supplemental hereto and any other requisite documents and the execution and
filing of any financing statements and continuation statements that will, in
the
opinion of such counsel, be required to maintain the perfection of the Lien
of
this 2007-1 Base Indenture in the Collateral until March 31 in the following
calendar year.
Section
8.12. Liens.
No
Issuer shall create, incur, assume or permit to exist any Lien upon any of
the
Issuer Assets (including the Collateral), other than (i) Liens in favor of
the
Trustee for the benefit of the Secured Parties and (ii) other Permitted
Liens.
33
Section
8.13. Other
Indebtedness.
No Box
Truck SPV shall create, assume, incur, suffer to exist or otherwise become
or
remain liable in respect of any Indebtedness or other liabilities other than
(i) Indebtedness or other liabilities hereunder and (ii) Indebtedness or
other liabilities permitted under any other Related Document. USF shall not
create, assume, incur, suffer to exist or otherwise become or remain liable
in
respect of any Indebtedness or other liabilities other than
(x) Indebtedness or other liabilities hereunder, (y) Indebtedness or other
liabilities under any Permitted Note Issuance Indenture and (iii) Indebtedness
or other liabilities permitted under any other Related Document or any Permitted
Note Issuance Related Document.
Section
8.14. Mergers.
No
Issuer shall merge or consolidate with or into any other Person.
Section
8.15. Sales
of
Collateral.
No
Issuer shall sell, lease, transfer, liquidate or otherwise dispose of any
Collateral, except as expressly permitted (i) with respect to dispositions
of
Permitted Investments and any deposits in any Issuer Account, in accordance
with
Article
5
and the
terms of the applicable Series Supplement, (ii) with respect to dispositions
of
Box Trucks, in accordance with Section
IV
of the
SPV Fleet Owner Agreement, (iii) with respect to the assignment of any
Collateral Agreement, in such Collateral Agreement and (iv) as otherwise
expressly permitted pursuant to the applicable Series Supplement.
Section
8.16. Acquisition
of Assets.
No
Issuer shall acquire, by long-term or operating lease or otherwise, any
property, except as expressly permitted (i) in accordance with Section
7
of the
USF Limited Liability Company Agreement or the applicable Box Truck SPV Limited
Liability Company Agreement, as the case may be, (ii) with respect to
acquisitions of Permitted Investments, in accordance with Article
5
and the
terms of the applicable Series Supplement, (iii) with respect to acquisitions
of
Box Trucks, in accordance with the Box Truck Purchase Agreement and the
applicable Series Supplement and (iv) in the case of USF, in accordance with
any
Permitted Note Issuance Related Documents.
Section
8.17. Distributions.
No
Issuer shall declare or pay any distributions on any of its membership interests
or make any purchase, redemption or other acquisition of, any of its membership
interests; provided,
however,
that so
long as no Event of Default or Rapid Amortization Event has occurred and is
continuing or would result therefrom, each Issuer may declare and pay
distributions on its membership interests in accordance with the applicable
provisions of the Nevada Limited Liability Company Act and any other applicable
laws of the State of Nevada, provided that no Issuer may distribute any amounts
attributable to Collections unless such amounts were payable to such Issuer
in
accordance with the priority of payment provisions set forth in the applicable
Series Supplement or otherwise released to such Issuer pursuant to the terms
of
the Indenture.
Section
8.18. Name;
Principal Office.
No
Issuer shall either change its location (within the meaning of Section 9-307
of
the New York UCC) or its name without thirty (30) days’ prior written notice to
the Trustee and any Financial Insurance Provider. In the event that any Issuer
desires to so change its location or change its name, such Issuer shall make
any
required filings and prior to actually changing its location or its name such
Issuer will deliver, or cause to be delivered, to the Trustee and each
Enhancement Provider (i) an Officer’s Certificate and an Opinion of Counsel
confirming that all required filings have been made to continue the
34
Section
8.19. Organizational
Documents.
No
Issuer shall amend its operating agreement unless, prior to such amendment,
(i) so long as a Financial Insurance Provider is the Controlling Party, the
Controlling Party shall have consented to such amendment and (ii) each
Rating Agency shall have confirmed that after such amendment the Rating Agency
Condition will be met; provided
that
with respect to any amendment to any provision other than Sections
7,
9(j)
and
10
of such
operating agreement, if such amendment is to cure any mistake, ambiguity defect
or inconsistency or to correct any provision therein, (x) the failure of any
Financial Insurance Provider to respond to such Issuer’s written request for
consent to such amendment, which request refers to this Section
8.19
and
includes the text of this clause
(x)
therein
in its entirety, within fifteen (15) Business Days of actual receipt thereof
by
an Authorized Officer of such Financial Insurance Provider will constitute
such
Controlling Party’s consent to such amendment and (y) no confirmation of the
Rating Agency Condition will be required.
Section
8.20. Investments.
No Box
Truck SPV shall make, incur, or suffer to exist any loan, advance, extension
of
credit or other investment in any Person other than with respect to Permitted
Investments. USF shall not make, incur, or suffer to exist any loan, advance,
extension of credit or other investment in any Person other than (i) with
respect to Permitted Investments, (ii) the Box Truck SPV Membership Interests
and any membership interests in any Permitted Note Issuance SPV and (iii) in
accordance with any Permitted Note Issuance Indenture.
Section
8.21. No
Other Agreements.
No
Issuer shall (i) enter into or be a party to any agreement or instrument other
than any Related Document or any documents related to any Enhancement or
documents and agreements incidental thereto or entered into as contemplated
in
Section
8.23
or
Section
8.31,
or, in
the case of USF, any Permitted Note Issuance Related Document, or (ii) except
as
provided for in Sections
13.1
or
13.2,
amend,
modify or waive any provision of any Related Document to which it is a
party.
Section
8.22. Other
Business.
No
Issuer shall engage in any business or enterprise or enter into any transaction
other than (i) the transactions contemplated by the Related Documents, (ii)
in
the case of USF, the transactions contemplated by any Permitted Note Issuance
Related Documents, (iii) the incurrence and payment of ordinary course operating
expenses and (iv) other activities related to or incidental to any of the
foregoing (including transactions contemplated in Sections
8.21
and
8.23).
Section
8.23. Maintenance
of Separate Existence.
Each
Issuer shall do all things necessary to continue to be readily distinguishable
from the Fleet Manager, the Administrator, each Rental Company and the
Affiliates of the foregoing (other than any Issuer or any Permitted Note
Issuance SPV) and maintain its limited liability company existence separate
and
apart from that of the Fleet Manager, the Administrator, each Rental Company
and
Affiliates of the foregoing including:
35
(i) practicing
and adhering to advisable, appropriate and customary organizational formalities,
such as maintaining appropriate books and records;
(ii) observing
all organizational formalities in connection with all dealings between itself
and the Fleet Manager, the Administrator, each Rental Company, the Affiliates
of
the foregoing or any other unaffiliated entity;
(iii) observing
all procedures required by its articles of organization, its operating agreement
and the laws of the State of Nevada;
(iv) acting
solely in its name and through its duly authorized officers or agents in the
conduct of its businesses;
(v) managing
its business and affairs by or under the direction of its Managers;
(vi) ensuring
that its Managers duly authorize all of its actions to the extent required
by
its operating agreement;
(vii) ensuring
the receipt of proper authorization, when necessary, from its Members for its
actions;
(viii) maintaining
at least one Manager who is an Independent Manager;
(ix) except
as
expressly provided by the Related Documents or any Permitted Note Issuance
Related Documents in respect of any other Issuer or any Permitted Note Issuance
SPV, not (A) having or incurring any Indebtedness to the Fleet Manager, the
Administrator, any Rental Company or any Affiliate of the foregoing; (B)
guaranteeing or otherwise becoming liable for any obligations of the Fleet
Manager, the Administrator, any Rental Company or any Affiliates of the
foregoing; (C) having obligations guaranteed by the Fleet Manager, the
Administrator, any Rental Company or any Affiliates of the foregoing; (D)
holding itself out as responsible for debts of the Fleet Manager, the
Administrator, any Rental Company or any Affiliates of the foregoing or for
decisions or actions with respect to the affairs of the Fleet Manager, the
Administrator, any Rental Company or any Affiliates of the foregoing; (E)
failing to correct any known misrepresentation with respect to the statement
in
subsection
(C);
(F)
operating or purporting to operate as an integrated, single economic unit with
respect to the Fleet Manager, the Administrator, any Rental Company, the
Affiliates of the foregoing or any other unaffiliated entity; (G) seeking to
obtain credit or incur any obligation to any third party based upon the assets
of the Fleet Manager, the Administrator, any Rental Company, the Affiliates
of
the foregoing or any other unaffiliated entity; and (H) inducing any such third
party to reasonably rely on the creditworthiness of the Fleet Manager, the
Administrator, any Rental Company, the Affiliates of the foregoing or any other
unaffiliated entity;
(x) (A) other
than as provided in the Indenture and the Account Control Agreements or, in
the
case of USF, any Permitted Note Issuance Related Documents, maintaining its
deposit and other bank accounts and securities accounts and (B) except
as
36
expressly
provided in the Related Documents or, in the case of USF, any Permitted Note
Issuance Related Documents, maintaining all of its assets separate from those
of
any
other
Person;
(xi) maintaining
its financial records separate and apart from those of any other Person;
provided,
however,
that
with respect to each Issuer for the purposes of this clause
(xi),
the
consolidated and consolidating financial statements of USF and its subsidiaries
shall be considered as separate and apart from those of any other
Person;
(xii) disclosing
in its annual financial statements the effects of the transactions contemplated
by the Related Documents and, in the case of USF, any Permitted Note Issuance
Related Documents;
(xiii) setting
forth clearly in its financial statements its separate assets and liabilities
and the fact that the Box Trucks are owned by the applicable Box Truck
SPVs;
(xiv) not
suggesting in any way, within its financial statements, that its assets are
available to pay the claims of creditors of the Fleet Manager, the
Administrator, any Rental Company, the Affiliates of the foregoing (other than
any other Issuer or any Permitted Note Issuance SPV) or any other affiliated
or
unaffiliated entity;
(xv) compensating
all its consultants and agents for services provided to it by such Persons
out
of its own funds;
(xvi) to
the
extent that it requires an office to conduct its business, conducting its
business from an office at a separate address from that of the Fleet Manager,
the Administrator, any Rental Company or any Affiliates of the foregoing (other
than any other Issuer, any Permitted Note Issuance SPV or the Nominee
Titleholder); provided
that
segregated offices in the same building shall constitute separate addresses
for
the purposes of this clause
(xvi);
provided further
that, to
the extent that any Issuer, any Permitted Note Issuance SPV or the Nominee
Titleholder has offices in the same location, there shall be a fair and
appropriate allocation of overhead costs among them, and each such entity shall
bear its fair share of such costs;
(xvii) having
separate stationery from the Fleet Manager, the Administrator, any Rental
Company, the Affiliates of the foregoing or any other unaffiliated entity (other
than any other Issuer, any Permitted Note Issuance SPV or the Nominee
Titleholder);
(xviii) accounting
for and managing all of its liabilities separately from those of the Fleet
Manager, the Administrator, any Rental Company or any Affiliates of the
foregoing;
(xix) allocating,
on an arm’s-length basis, all shared corporate operating services, leases and
expenses, including those associated with the services of shared consultants
and
agents and shared computer and other office equipment and software, and
otherwise maintaining an arm’s-length relationship with the Fleet Manager, the
Administrator, any Rental Company, the Affiliates of the foregoing or any
other
37
(xx) refraining
from filing or otherwise initiating or supporting the filing of a motion in
any
bankruptcy or other insolvency proceeding involving any other Issuer, any
Permitted Note Issuance SPV, the Nominee Titleholder, the Fleet Manager, the
Administrator or any Rental Company to substantively consolidate any other
Issuer, any Permitted Note Issuance SPV or the Nominee Titleholder with the
Fleet Manager, the Administrator, any Rental Company or any Affiliate
thereof;
(xxi) remaining
solvent and assuring adequate capitalization for the business in which it is
engaged; and
(xxii) conducting
all of its business (whether written or oral) solely in its own name so as
not
to mislead others as to the separate identity of the Fleet Manager, the
Administrator, each Rental Company and the Affiliates of the
foregoing.
Each
Issuer acknowledges its receipt of a copy of those certain opinion letters
issued by ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP dated the Effective
Date, addressing the issues of substantive consolidation as they may relate
to
the Fleet Manager, the Administrator, each Rental Company and each Affiliate
of
the Fleet Manager (other than the Issuers, any Permitted Note Issuance SPV
or
the Nominee Titleholder) on the one hand and each Issuer, any Permitted Note
Issuance SPV and the Nominee Titleholder on the other hand. Each Issuer hereby
agrees to maintain in place all policies and procedures and take and continue
to
take all action, described in the factual assumptions set forth in such opinion
letter and relating to it. On or before March 31, of each calendar year,
commencing with March 31, 2008, the Issuers will provide to the Rating Agencies,
each Enhancement Provider and the Trustee an Officer’s Certificate of each
Issuer certifying that it is in compliance with its obligations under this
Section
8.23.
Section
8.24. Use
of
Proceeds of Notes.
The
Issuers shall use the proceeds of Notes to repay Notes, in accordance with
the
Indenture, to finance the acquisition of Box Trucks or as otherwise provided
in
any Series Supplement.
Section
8.25. No
ERISA Plan.
No
Issuer shall establish or maintain or contribute to any Pension
Plan.
Section
8.26. No
Employees.
No
Issuer shall have any employees.
Section
8.27. Environmental.
Each
Issuer shall comply in all material respects with all applicable Environmental
Laws, and shall obtain all material licenses, approvals, notifications,
registrations or permits required by applicable Environmental Laws in connection
with the ownership and operation of its assets (the “Environmental
Permits”).
Section
8.28. SPV
Fleet Owner Agreement.
Each
Box Truck SPV agrees that each Box Truck owned by it shall at all times after
the Effective Date be subject to the SPV Fleet Owner Agreement.
38
Section
8.29. Maintenance
of the Box Trucks.
Each
Box Truck SPV shall cause the Fleet Manager to maintain all of the Box Trucks
owned by such Box Truck SPV in accordance with the Management Standard, except
to the extent that any such failure to comply with such requirements does not,
in the aggregate, materially adversely affect the interests of the Trustee
and
the Secured Parties under the Indenture or the likelihood of repayment of any
Issuer Obligations. From time to time each Box Truck SPV shall make or cause
to
be made all appropriate repairs, renewals, and replacements with respect to
the
Box Trucks owned by it.
Section
8.30. Entrance
into a Permitted Note Issuance Indenture.
USF
shall not enter into a Permitted Note Issuance Indenture or any other Permitted
Note Issuance Related Document in connection with any Permitted Note Issuance
unless:
(i) such
Permitted Note Issuance Indenture contains provisions substantially the same
as
Sections
14.18
and
14.19,
and the
Permitted Notes issued in such Permitted Note Issuance are non-recourse to
USF
except to the extent of Other Assets;
(ii) each
Permitted Note Issuance Related Document to which USF is a party contains a
non-petition provision substantially the same as Section
14.17,
prohibiting each other party thereto (other than any Permitted Note Issuance
SPV) from instituting, or joining with any other Person in instituting, against
USF any bankruptcy, reorganization, arrangement, insolvency or liquidation
proceedings for one year and one day after the payment in full of all
obligations of USF in connection with such Permitted Note Issuance;
(iii) on
or
prior to the date of such Permitted Note Issuance, each Permitted Note Issuance
SPV party to the Permitted Note Issuance Indenture shall have entered into
a
Permitted Note Issuance SPV Limited Guarantee; and
(iv) if
there
is a Financial Insurance Provider with respect to any Series of Notes
Outstanding, such Financial Insurance Provider shall have consented in writing
to such Permitted Note Issuance.
Section
8.31. Box
Truck SPV Permitted Note Limited Guarantees.
Upon
the execution by USF of any Permitted Note Issuance Indenture, each Box Truck
SPV shall enter into an unsecured limited guarantee (each a “Box
Truck SPV Permitted Note Limited Guarantee”),
substantially in the form of Exhibit
B,
in
favor of the Permitted Note Issuance Trustee party to such Permitted Note
Issuance Indenture, pursuant to which such Box Truck SPV will guarantee (solely
to the extent that it has funds available to it through the application of
Collections made in accordance with the priority of payment provisions set
forth
in the applicable Series Supplement) the payment by USF of its obligations
under
such Permitted Note Issuance Indenture and any Permitted Notes issued
thereunder.
ARTICLE
9.
EVENTS
OF
DEFAULT
39
Section
9.1. Events
of
Default.
The
occurrence of any of the following events shall constitute an “Event
of Default”:
(a) the
Issuers default in the payment of any interest or prepayment premium payable
on
any Note or the insurance premium payable to any Financial Insurance Provider
in
respect of any Financial Insurance Policy with respect to the Notes when the
same becomes due and payable and such default continues for a period of three
(3) Business Days;
(b) the
Issuers default in the payment of any remaining principal of any Note on the
earlier of (i) the Payment Date that is six (6) months prior to the Legal Final
Maturity Date thereof and (ii) the February 2018 Payment Date;
(c) the
Trustee for any reason ceases to have a valid and perfected first-priority
security interest in the Collateral or any Issuer, UHI, the Nominee Titleholder
or any Affiliate of any of them shall assert that the Trustee has ceased to
have
a perfected first-priority security interest in the Collateral;
(d) (i)
any
Issuer defaults in the observance or performance of any covenant or agreement
of
such Issuer pursuant to Section
8.4,
8.14
or
8.19
which
default has a Material Adverse Effect; or (ii) any Issuer or the Nominee
Titleholder defaults in the observance or performance of any other covenant
or
agreement of such Issuer or the Nominee Titleholder made in the Indenture (other
than a covenant or agreement, a default in the observance or performance of
which is elsewhere in this Section specifically dealt with) or any other Related
Document which default has a Material Adverse Effect, and which default shall
continue and not be cured for (x) in the case of a default under Section
8.8
or
8.15,
a
period of five (5) Business Days, (y) in the case of a default under
Section
8.22
or
8.23,
a
period of fifteen (15) days, and (z) in the case of any other default, a period
of thirty (30) days after the earlier of the date on which (1) any Issuer or
the
Nominee Titleholder, as applicable, obtains knowledge thereof or (2) there
shall
have been given, by registered or certified mail, to the Issuers or the Nominee
Titleholder, as applicable, by the Trustee or the Controlling Party or to the
Issuers and the Trustee by Noteholders holding Notes evidencing at least 25%
of
the Aggregate Note Balance, a written notice specifying such default and
requiring it to be remedied and stating that such notice is a “Notice of
Default” hereunder;
(e) any
Issuer or the Nominee Titleholder breaches any representation or warranty of
such Issuer or the Nominee Titleholder contained in the Indenture or any Related
Document in any material respect which breach has a Material Adverse Effect
and
which breach shall continue and not be cured for a period of thirty (30) days
after the earlier of the date on which (i) any Issuer obtains knowledge thereof
or (ii) there shall have been given, by registered or certified mail, to the
Issuers by the Trustee or the Controlling Party or to the Issuers and the
Trustee by Noteholders holding Notes evidencing at least 25% of the Aggregate
Note Balance, a written notice specifying such breach and requiring it to be
cured and stating that such notice is a “Notice of Default”
hereunder;
40
(f) any
final
and unappealable (or, if capable of appeal, such appeal is not being diligently
pursued or enforcement thereof has not been stayed) judgment or order for the
payment of money in excess of $100,000 which is not fully covered by insurance
(or in respect of which the insurer has denied coverage, which denial is not
being contested by any Issuer in good faith proceedings) is rendered against
any
Issuer and such judgment or order continues unsatisfied and unstayed for a
period of thirty (30) days;
(g) any
of
the Related Documents or any material portion thereof shall not be in full
force
and effect, enforceable in accordance with its terms or any Issuer, the Nominee
Titleholder, UHI or any Affiliate of any of them shall so assert in
writing;
(h) a
draw is
made on the Financial Insurance Policy with respect to the Notes;
(i) the
Securities and Exchange Commission or other regulatory body having jurisdiction
reaches a final determination that any Issuer is an “investment company” or is
under the “control” of an “investment company” under the Investment Company
Act;
(j) any
Issuer or the Nominee Titleholder is no longer an indirect wholly-owned
subsidiary of UHI;
(k) the
occurrence of a Termination Event;
(l) the
occurrence of an Event of Bankruptcy with respect to any Issuer or the Nominee
Titleholder;
(m) an
Aggregate Asset Amount Deficiency occurs on any Determination Date and continues
for a period of more than five (5) consecutive Business Days;
(n) (i)
a
reportable event (within the meaning of Section 4043 of ERISA), as to which
the
PBGC has not waived the 30-day notice period, occurs with respect to any Pension
Plan, (ii) any “accumulated funding deficiency” within the meaning of Section
302 of ERISA, whether or not waived, shall exist with respect to any Pension
Plan, (iii) any Issuer or any Commonly Controlled Entity makes a withdrawal
from
any Pension Plan or (iv) any lien in favor of the PBGC or a Pension Plan shall
arise on the related Collateral; provided,
that an
event or condition described in subclause
(i),
(ii)
or
(iii)
of this
clause
(o)
shall
not at any time constitute an Event of Default unless as a result of such event
or condition any Issuer has a liability in respect of a Pension Plan or to
the
PBGC in an amount at least equal to $100,000; or
(o) AMERCO
at
any time no longer owns or controls, directly or indirectly, greater than 50%
of
the voting stock of UHI and the Controlling Party does not provide written
consent to such change of control within thirty (30) days.
Section
9.2. Acceleration
of Maturity; Rescission and Annulment.
If an
Event of Default referred to in clause (l)
of
Section
9.1
with
respect to any Issuer has occurred, the unpaid principal amount of the
Outstanding Notes, together with interest accrued but unpaid thereon, and all
other amounts due from the Issuers to the Noteholders or any other Secured
Party
under
41
At
any
time after such declaration of acceleration of maturity has been made with
respect to the Notes and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter provided in this
Article
9,
the
Controlling Party, by written notice to the Issuers and the Trustee, may rescind
and annul such declaration and its consequences; provided,
that, no
such rescission shall affect any subsequent default or impair any right
consequent thereto.
Section
9.3. Collection
of Indebtedness and Suits for Enforcement by the Trustee.
Each
Issuer, jointly and severally, covenants that if (i) default is made in the
payment of any interest or prepayment premium on any Note when the same becomes
due and payable, and such default continues for a period of three (3) Business
Days or (ii) default is made in the payment of the principal of any Note when
the same becomes due and payable, by acceleration or at stated maturity, such
Issuer will, upon demand of the Trustee, acting at the direction of the
Controlling Party, pay to it, for the benefit of the Holders of such Notes
and
any Financial Insurance Provider, the whole amount then due and payable on
such
Notes for principal and interest, with interest upon the overdue principal,
and,
to the extent payment at such rate of interest shall be legally enforceable,
upon overdue installments of interest or prepayment premium, at the Note Rate
borne by the Notes or any other applicable default rate, and in addition thereto
such further amount as shall be sufficient to cover the costs and expenses
of
collection, including the reasonable compensation, expenses, disbursements
and
advances of the Trustee, any Financial Insurance Provider and each of their
agents and counsel.
In
case
the Issuers shall fail forthwith to pay such amounts upon such demand, the
Trustee (solely if so directed by the Controlling Party), in its own name and
as
trustee of an express trust, shall institute a proceeding for the collection
of
the sums so due and unpaid, and may prosecute such proceeding to judgment or
final decree, and may enforce the same against any one or more of the Issuers
or
other obligor upon such Notes and collect in the manner provided by law out
of
the Collateral, wherever situated, the moneys adjudged or decreed to be
payable.
If
an
Event of Default occurs and is continuing, the Trustee may, as more particularly
provided in Section
9.4,
in its
discretion, proceed to protect and enforce its rights and the rights of the
Noteholders, by such appropriate proceedings as the Trustee shall deem most
effective to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in the Indenture or any other Related
Document or in aid of the exercise of any power granted herein or therein,
or to
enforce any other proper remedy or legal or equitable right vested in the
Trustee by the Indenture, any other Related Document or by law; provided
that if
a Financial Insurance Provider is the Controlling Party, then the Trustee
may
42
In
case
there shall be pending, relative to any Issuer, any other obligor upon the
Notes
or any Person having or claiming an ownership interest in any Issuer Assets,
proceedings under the Bankruptcy Code or any other applicable federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee
or
trustee in bankruptcy or reorganization, liquidator, sequestrator or similar
official shall have been appointed for or taken possession of any Issuer or
its
property or such other obligor or such Person or the property of such other
obligor or such Person, or in the case of any other comparable judicial
proceedings relative to any Issuer, other obligor upon the Notes or such Person
or to the creditors or property of any Issuer, such other obligor or such
Person, the Trustee, irrespective of whether the principal of any Notes shall
then be due and payable as therein expressed or by declaration or otherwise
and
irrespective of whether the Trustee shall have made any demand pursuant to
the
provisions of this Section 9.3,
shall
be entitled and empowered, by intervention in such proceedings or
otherwise:
(i) to
file
and prove a claim or claims for the whole amount of principal, interest and
prepayment premium owing and unpaid in respect of the Notes and any other Issuer
Obligations and to file such other papers or documents as may be necessary
or
advisable in order to have the claims of the Trustee (including any claim for
reasonable compensation to the Trustee and each predecessor Trustee, and their
respective agents, attorneys and counsel, and for reimbursement of all expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee, except as a result of negligence, bad faith or willful
misconduct) and of any Financial Insurance Provider and the Noteholders allowed
in such proceedings;
(ii) unless
prohibited by applicable law and regulations, to vote on behalf of the Holders
of the Notes in any election of a trustee, a standby trustee or person
performing similar functions in any such proceedings;
(iii) to
collect and receive any moneys or other property payable or deliverable on
any
such claims and to distribute all amounts received with respect to the claims
of
the Noteholders, of any Financial Insurance Provider and of the Trustee on
their
behalf; and
(iv) to
file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee, the Holders of the Notes
or any Financial Insurance Provider allowed in any judicial proceedings relative
to the Issuers, such other obligor upon the Notes, any Person claiming an
ownership interest in the Issuer Assets, their respective creditors and their
property;
provided
that if
a Financial Insurance Provider is the Controlling Party, then the Trustee may
only take such actions as consented to by the Controlling Party and shall take
such actions as directed by the Controlling Party. Any trustee, receiver,
liquidator, custodian or other similar official in any such proceeding is hereby
authorized by each of such Noteholders to make payments to the Trustee, and,
in
the event that the Trustee shall consent to the making of payments directly
to
such Noteholders, to pay to the Trustee such amounts as shall be
sufficient
43
to
cover
reasonable compensation to the Trustee, each predecessor Trustee and their
respective agents, attorneys and counsel, and all other expenses and liabilities
incurred, and all advances made, by the Trustee and each predecessor Trustee
except as a result of negligence or bad faith.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or vote for or accept or adopt on behalf of any Noteholder or any
Financial Insurance Provider any plan of reorganization, arrangement, adjustment
or composition affecting the Notes or the rights of any Holder thereof or any
Financial Insurance Provider or to authorize the Trustee to vote in respect
of
the claim of any Noteholder or any Financial Insurance Provider in any such
proceeding except, as aforesaid, to vote for the election of a trustee in
bankruptcy or similar person.
All
rights of action and of asserting claims under the Indenture, or under any
of
the Notes, may be enforced by the Trustee without the possession of any of
the
Notes or the production thereof in any trial or other proceedings relative
thereto, and any such action or proceedings instituted by the Trustee shall
be
brought in its own name as trustee of an express trust, and any recovery of
judgment, subject to the payment of the expenses, disbursements and compensation
of the Trustee, each predecessor Trustee and their respective agents and
attorneys, shall be for the ratable benefit of the Holders of the Notes and
the
other Secured Parties.
In
any
proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of the Indenture to which the Trustee shall
be a
party), the Trustee shall be held to represent all the Holders of the Notes,
and
it shall not be necessary to make any Noteholder a party to any such
proceedings.
Section
9.4. Remedies;
Priorities.
If an
Event of Default shall have occurred and be continuing and the Notes have been
accelerated under Section
9.2,
the
Trustee may institute proceedings to enforce the obligations of the Issuers
hereunder in its own name and as trustee of an express trust for the collection
of all amounts then payable on the Notes or under the Indenture with respect
thereto or any other Issuer Obligations, whether by declaration or otherwise,
enforce any judgment obtained, and collect from any one or more of the Issuers
and any other obligor upon such Notes moneys adjudged due. In addition, the
Trustee (subject to Section
9.5)
shall
have the right to exercise the rights and remedies provided herein and those
available to it under the Related Documents, including the right to do one
or
more of the following:
(i) institute
proceedings from time to time for the complete or partial foreclosure of the
Indenture with respect to the Collateral;
(ii) exercise
any remedies of a secured party under the UCC and take any other appropriate
action to protect and enforce the rights and remedies of the Trustee, the
Holders of the Notes and any other Secured Party;
(iii) sell
the
Collateral or any portion thereof or rights or interests therein, at one or
more
public or private sales called and conducted in any manner permitted by
law;
(iv) transfer
all or any part of the Collateral into the name of the Trustee or its
nominee;
44
(v) notify
the parties obligated on any of the Collateral to make payment to the Trustee
or
its assignee of any amount due or to become due thereunder; and
(vi) at
its
option and at the expense and for the account of the Issuers, at any time or
from time to time, take all actions which the Trustee reasonably deems necessary
to protect or preserve the Collateral and to realize upon the
Collateral;
provided
that the
Trustee may not sell or otherwise liquidate the Collateral following an Event
of
Default, unless (A) the Controlling Party, if a Financial Insurance Provider
is
the Controlling Party, or otherwise the Holders of Notes representing 100%
of
the Aggregate Note Balance consent thereto, (B) the proceeds of such sale or
liquidation distributable to the Noteholders are sufficient to discharge in
full
all amounts then due and unpaid upon the Notes for principal and interest or
(C)
(1) the Trustee or any Financial Insurance Provider with respect to the Notes
determines that there is a reasonable likelihood that the Collateral will not
continue to provide sufficient funds for the payment of principal of and
interest on the Notes as they would have become due if the Notes had not been
declared due and payable and (2) the Trustee obtains the consent of the
Controlling Party. In determining such sufficiency or insufficiency with respect
to clause (B) and (C), the Trustee may, but need not, obtain and rely upon
an
opinion of an investment banking or accounting firm of national reputation
as to
the feasibility of such proposed action and as to the sufficiency of the
Collateral for such purpose.
Any
sale
of the Collateral or any part thereof may, with prior notice to the Issuers,
be
made in one or more lots at public or private sale, for cash, on credit or
for
future delivery, and upon such other terms as the Trustee may deem commercially
reasonable. The Trustee shall not be obligated to make any sale of Collateral
regardless of notice of sale having been given. The Trustee may adjourn any
public or private sale from time to time by announcement at the time and place
fixed therefor, and such sale may, without further notice, be made at the time
and place to which it was so adjourned. The Issuers shall cooperate with the
Trustee in all reasonable ways in order to assist the Trustee in the sale and
other disposition of the Collateral.
If
the
Trustee collects any money or property pursuant to this Article
9,
such
money or property shall be held by the Trustee as additional collateral
hereunder and the Trustee shall pay out such money or property in the following
order:
FIRST:
to
the Trustee for amounts due under Section
11.5;
and
SECOND:
to the Box Truck Collection Account for distribution in accordance with the
provisions of Article
5.
For
so
long as a Financial Insurance Provider is the Controlling Party, then the
Trustee may only take such actions under this Section
9.4
as
consented to by the Controlling Party, and shall take such actions under this
Section
9.4
as
directed by the Controlling Party.
Section
9.5. Optional
Preservation of the Collateral.
If (a)
there is a Financial Insurance Policy respect to the Notes, (b) a Surety Default
shall have occurred and be continuing with respect to the Financial Insurance
Provider that issued such Financial Insurance Policy, (c) the Notes have been
declared to be due and payable under Section
9.2
following an Event of Default, (d) such declaration and its consequences have
not been rescinded and annulled and (e)
45
Section
9.6. Limitation
on Suits.
No
Holder of any Note shall have any right to institute any proceeding, judicial
or
otherwise, with respect to the Indenture, or for the appointment of a receiver
or trustee, or for any other remedy thereunder, unless:
(a) such
Holder has previously given written notice to the Trustee of a continuing Event
of Default;
(b) Holders
holding Notes evidencing at least 25% of the Aggregate Note Balance (or, if
applicable, at least 25% the Aggregate Note Balance of each Class of Notes)
have
made written request to the Trustee to institute such proceeding in respect
of
such Event of Default in its own name as the Trustee hereunder;
(c) such
Holder or Holders have offered to the Trustee indemnity reasonably satisfactory
to it against the costs, expenses and liabilities to be incurred in complying
with such request;
(d) the
Trustee for 60 days after its receipt of such notice, request and offer of
indemnity has failed to institute such proceedings;
(e) no
direction inconsistent with such written request has been given to the Trustee
during such 60-day period by the Required Noteholders; and
(f) if
there
is a Financial Insurance Policy with respect to the Notes, a Surety Default
with
respect to the Financial Insurance Provider that issued such Financial Insurance
Policy shall have occurred and be continuing;
it
being
understood and intended that no one or more Holders of the Notes shall have
any
right in any manner whatever by virtue of, or by availing of, any provision
of
the Indenture to affect, disturb or prejudice the rights of any other Holders
of
the Notes or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under the Indenture, except in the manner
herein provided.
In
the
event the Required Noteholders are the Controlling Party and the Trustee shall
receive conflicting or inconsistent requests and indemnity from two or more
groups of Holders of Notes, each representing less than the Required
Noteholders, the Trustee shall act at
46
Section
9.7. Unconditional
Rights of Noteholders to Receive Principal and Interest.
Notwithstanding any other provisions in the Indenture, the Holder of any Note
(including any Financial Insurance Holder as subrogee thereof) shall have the
right, which is absolute and unconditional, to receive payment of the principal
of and interest, if any, on such Note on or after the respective due dates
thereof expressed in such Note or in the Indenture and to institute suit for
the
enforcement of any such payment, and such right shall not be impaired without
the consent of such Holder.
Section
9.8. Restoration
of Rights and Remedies.
If the
Trustee or any Secured Party has instituted any Proceeding to enforce any right
or remedy under the Indenture and such Proceeding has been discontinued or
abandoned for any reason or has been determined adversely to the Trustee or
to
such Secured Party, then and in every such case the Issuers, the Trustee and
such Secured Parties shall, subject to any determination in such Proceeding,
be
restored severally and respectively to their former positions hereunder, and
thereafter all rights and remedies of the Trustee and such Secured Parties
shall
continue as though no such Proceeding had been instituted.
Section
9.9. Rights
and Remedies Cumulative.
No
right or remedy herein conferred upon or reserved to the Trustee or to any
Secured Party is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative
and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
Section
9.10. Delay
or Omission Not a Waiver.
No
delay or omission of the Trustee, any Financial Insurance Provider or any
Noteholder to exercise any right or remedy accruing upon any Default, Event
of
Default, Potential Rapid Amortization Event or Rapid Amortization Event shall
impair any such right or remedy or constitute a waiver of any such Default,
Event of Default, Potential Rapid Amortization Event or Rapid Amortization
Event
or an acquiescence therein. Every right and remedy given by this Article
9
or by
law to the Trustee, any Financial Insurance Provider or the Noteholders may
be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Noteholders, as the case may be.
Section
9.11. Control
by the
Controlling Party.
Notwithstanding any other provision of the Indenture or any other Related
Document to the contrary, the Controlling Party shall have the sole right to
direct the time, method and place of conducting any proceeding for any remedy
available to the Trustee with respect to the Notes or exercising any trust
or
power conferred on the Trustee; provided
that
47
(a) such
direction shall not be in conflict with any rule of law or with the
Indenture;
(b) subject
to the express terms of Section
9.4,
any
direction to the Trustee to sell or liquidate the Collateral shall be by the
Controlling Party, if a Financial Insurance Provider is the Controlling Party,
or otherwise the Holders of Notes representing not less than 100% of the
Aggregate Note Balance;
(c) if
the
conditions set forth in Section
9.5
have
been satisfied and the Trustee elects to retain the Collateral pursuant to
such
Section, then direction to the Trustee by Holders of Notes representing 100%
of
the Aggregate Note Balance shall be required to sell or liquidate the
Collateral;
(d) the
Trustee may take any other action deemed proper by the Trustee that is not
inconsistent with such direction; and
(e) such
direction shall be in writing;
provided further,
that the
Trustee need not take any action that it reasonably determines might involve
it
in liability (if it has reasonable grounds to believe that such liability will
not be reimbursed or such liability is not covered by an indemnity or other
reasonable security) or, so long as a Financial Insurance Provider is not the
Controlling Party, might materially adversely affect the rights of any
Noteholders not consenting to such action.
Section
9.12. Waiver
of Past Defaults.
Prior
to the declaration of the acceleration of the maturity of the Notes as provided
in Section
9.2,
the
Controlling Party may, on behalf of all Holders, waive any past Default or
Event
of Default and its consequences except a Default (a) in payment of principal
of
or interest or prepayment premium on any of the Notes (unless such payment
shall
have been made in full) or (b) in respect of a covenant or provision hereof
which cannot be modified or amended without the consent of the Holder of each
Note. In the case of any such waiver, the Issuers, the Trustee and the Holders
of the Notes shall be restored to their former positions and rights hereunder,
respectively; but no such waiver shall extend to any subsequent or other Default
or impair any right consequent thereto.
Upon
any
such waiver, such Default shall cease to exist and be deemed to have been cured
and not to have occurred, and any Event of Default arising therefrom shall
be
deemed to have been cured and not to have occurred, for every purpose of the
Indenture; but no such waiver shall extend to any subsequent or other Default
or
Event of Default or impair any right consequent thereto. The Issuers shall
give
prompt written notice of any waiver to the Rating Agencies.
Section
9.13. Undertaking
for Costs.
All
parties to the Indenture agree, and each Holder of any Note by such ▇▇▇▇▇▇’s
acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy
under
the Indenture, or in any suit against the Trustee for any action taken, suffered
or omitted by it as the Trustee, the filing by any party litigant in such
Proceeding of an undertaking to pay the costs of such Proceeding, and that
such
court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees, against any party litigant in such Proceeding, having
due
48
Section
9.14. Waiver
of Certain
Rights.
(a)
Each
Issuer covenants (to the extent that it may lawfully do so) that it will not
at
any time insist upon, or plead or in any manner whatsoever, claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or
at
any time hereafter in force, that may affect the covenants or the performance
of
the Indenture or any Related Document; and each Issuer (to the extent that
it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such
law, and covenants that it will not hinder, delay or impede the execution of
any
power herein granted to the Trustee or the Controlling Party, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
(b) Each
Issuer, to the extent it may lawfully do so, on behalf of itself and all who
may
claim through or under it, including any and all subsequent creditors, vendees,
assignees and lienors, expressly waives and releases any, every and all rights
to presentment, demand, protest or any notice (to the extent permitted by
applicable law and except as specifically provided in the Indenture) of any
kind
in connection with the Indenture, any other Related Document or any Collateral
or to have any marshalling of the Collateral upon any sale, whether made under
any power of sale granted hereunder or any other Related Document, or pursuant
to judicial proceedings or upon any foreclosure or any enforcement of the
Indenture or any other Related Document and consents and agrees that all the
Collateral may at any such sale be offered and sold as an entirety or in lots
or
otherwise as the Trustee may be directed by the Controlling Party
hereunder.
Section
9.15. Sale
of Collateral.
In
connection with any sale of any Collateral pursuant to this Article
9
or under
any judgment, order or decree in any judicial proceeding for the foreclosure
or
involving the enforcement of the Indenture or any other Security Document:
(i) the
Trustee, any Noteholder and/or any other Secured Party may bid for and purchase
the property being sold, and upon compliance with the terms of the sale may
hold, retain, possess and dispose of such property in its own absolute right
without further accountability;
(ii) the
Trustee (at the direction of the Controlling Party) may make and deliver to
the
purchaser or purchasers a good and sufficient deed, bill of sale and instrument
of assignment and transfer of the property sold:
(iii) the
receipt of the Trustee or of the officer thereof making such sale shall be
a
sufficient discharge to the purchaser or purchasers at such sale for his or
their purchase money, and such purchaser or purchasers, and his or their assigns
or personal representatives, shall not, after paying such purchase money and
receiving such receipt of the Trustee or of such officer therefore, be obliged
to see to the application of such
49
Section
9.16. Action
on Notes.
The
Trustee’s right to seek and recover judgment on the Notes or under the Indenture
shall not be affected by the seeking, obtaining or application of any other
relief under or with respect to the Indenture. Neither the Lien of the Indenture
nor any rights or remedies of the Trustee or the Noteholders shall be impaired
by the recovery of any judgment by the Trustee against any Issuer or by the
levy
of any execution under such judgment upon any portion of the
Collateral.
ARTICLE
10.
RAPID
AMORTIZATION EVENTS
Section
10.1. Rapid
Amortization Events.
If any
of the following events shall occur (each, a “Rapid
Amortization Event”):
(a) the
occurrence of any Event of Default (other than as a result of any event
described in clause
(c)
below);
(b) the
occurrence of an Event of Bankruptcy with respect to the Fleet Manager, the
Nominee Titleholder or any Rental Company;
(c) the
occurrence of an Event of Bankruptcy with respect to any Issuer;
(d) the
occurrence of any Enforcement Event;
(e) the
occurrence of any Administrator Default;
(f) beginning
on the sixth Determination Date following the Effective Date, the Six-Month
DSCR
as of any Determination Date is less than 1.15; or
(g) any
other
event shall occur which may be specified in the applicable Series Supplement
as
a “Rapid Amortization Event”;
then
(i)
in the case of any event described in clause
(a),
(b),
(d),
(e),
(f)
or
(g)
above
(with respect to clause
(g)
above,
only to the extent such Rapid Amortization Event is subject to waiver as set
forth in the applicable Series Supplement), the Trustee, at the direction of
the
Controlling Party, by written notice to the Issuers, may declare that a Rapid
Amortization Event has occurred as of the date of the notice or (ii) in the
case
of any event described in clause
(c)
or
(g)
above
(with respect to clause
(g)
above,
only to the extent such Rapid Amortization Event is not subject to waiver as
set
forth in the applicable Series Supplement), a Rapid Amortization Event shall
immediately occur without any notice or other action on the part of the Trustee
or the Controlling Party. Any Rapid Amortization Event occurring as a result
of
any event described in clause
(c)
or
(g)
above
(with respect to clause
(g)
above,
only to the extent so specified in the applicable Series Supplement) shall
not
be subject to waiver.
50
ARTICLE
11.
THE
TRUSTEE
Section
11.1. Duties
of the Trustee.
(a)
If an
Event of Default has occurred and is continuing, the Trustee shall exercise
such
of the rights and powers vested in it by the Indenture and the other Security
Agreements, and use the same degree of care and skill in their exercise, as
a
prudent man would exercise or use under the circumstances in the conduct of
his
own affairs.
(b) Except
during the occurrence and continuance of an Event of Default:
(i) the
Trustee undertakes to perform only those duties that are specifically set forth
in the Indenture and no others, and no implied covenants or obligations shall
be
read into the Indenture or any other Security Agreement against the Trustee;
and
(ii) in
the
absence of bad faith on its part, the Trustee may conclusively rely, as to
the
truth of the statements and the correctness of the opinions expressed therein,
upon certificates or opinions furnished to the Trustee and conforming to the
requirements of the Indenture. However, the Trustee shall examine the
certificates and opinions to determine whether or not they conform on their
face
to the requirements of the Indenture.
(c) The
Trustee may not be relieved from liability for its own negligent action, its
own
negligent failure to act, or its own willful misconduct, except
that:
(i) This
clause does not limit the effect of clause
(b)
of this
Section
11.1.
(ii) The
Trustee shall not be liable for any error of judgment made in good faith unless
it is proved that the Trustee was negligent in ascertaining the pertinent
facts.
(iii) The
Trustee shall not be liable with respect to any action it takes or omits to
take
in good faith in accordance with a direction received by it and contemplated
by
the Indenture.
(iv) The
Trustee shall not be charged with knowledge of Event of Default or a Rapid
Amortization Event unless a Trust Officer obtains actual knowledge thereof
or
receives written notice thereof.
(v) The
Trustee shall not be charged with knowledge of any default by the Fleet Manager
in the performance of its obligations under any Related Document, unless a
Trust
Officer of the Trustee obtains actual knowledge thereof or receives written
notice thereof.
(d) Notwithstanding
anything to the contrary contained in the Indenture, no provision of the
Indenture shall require the Trustee to expend or risk its own funds or incur
any
liability if there is reasonable ground for believing that the repayment of
such
funds is not reasonably assured to it by the security afforded to it by the
terms of the Indenture or if it shall not have received indemnity reasonably
satisfactory to it against any loss, liability or expense.
51
(e) In
the
event that the Paying Agent or the Registrar, if not the Trustee, shall fail to
perform any obligation, duty or agreement in the manner or on the day required
to be performed by the Paying Agent or the Registrar, as the case may be, under
the Indenture, the Trustee shall be obligated as soon as practicable upon actual
knowledge of a Trust Officer thereof and receipt of appropriate records and
information, if any, to perform such obligation, duty or agreement in the manner
so required; provided
that, in
connection with the Trustee’s performance of any such obligation of the Payment
Agent to pay funds hereunder, the Trustee shall have received from the Paying
Agent any such funds previously advanced to the Paying Agent.
(f) Subject
to Section
11.3,
all
moneys received by the Trustee shall, until used or applied as herein provided,
be held in trust for the purposes for which they were received, but need not
be
segregated from other funds except to the extent required by law or the Related
Documents.
Section
11.2. Rights
of the Trustee.
(a)
Except as otherwise provided by Section
11.1:
(i) The
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting based upon any document believed by it to be genuine
and
to have been signed by or presented by the proper person.
(ii) The
Trustee may consult with counsel of its selection and the written advice of
such
counsel or any Opinion of Counsel shall be full and complete authorization
and
protection from liability in respect of any action taken, suffered or omitted
by
it hereunder in good faith and in reliance thereon.
(iii) The
Trustee may act through agents, custodians and nominees and shall not be liable
for any misconduct or negligence on the part of, or for the supervision of,
any
such agent, custodian or nominee so long as such agent, custodian or nominee
is
appointed with due care; provided,
however
that, so
long as a Financial Insurance Provider is the Controlling Party, the Trustee
shall receive the consent of the Controlling Party prior to the appointment
of
any agent, custodian or nominee performing any material obligation of the
Trustee hereunder.
(iv) The
Trustee shall not be liable for any action it takes or omits to take in good
faith which it believes to be authorized or within its rights or powers
conferred upon it by the Indenture or any other Security Agreement.
(v) The
Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by the Indenture, or to institute, conduct or defend any litigation
hereunder or in relation hereto, at the request, order or direction of any
of
the Noteholders or the Controlling Party, pursuant to the provisions of the
Indenture, unless the Trustee shall have been offered reasonable security or
indemnity satisfactory to the Trustee against the costs, expenses and
liabilities which may be incurred therein or thereby or shall have reasonable
grounds to believe that repayment of such costs, expenses and liabilities is
not
reasonably assured to it.
52
(vi) The
Trustee shall not be bound to make any investigation into the facts of matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing so to do by the Controlling Party.
(vii) The
Trustee shall not be liable for any losses or liquidation penalties in
connection with Permitted Investments (other than as an obligor with respect
to
any Permitted Investments for which the institution acting as Trustee is an
obligor).
(b) The
Trustee shall not be liable for the acts or omissions of any successor to the
Trustee.
Section
11.3. Individual
Rights of the Trustee.
The
Trustee in its individual or any other capacity may become the owner or pledgee
of Notes and may otherwise deal with any Issuer or an Affiliate of any Issuer
with the same rights it would have if it were not Trustee. However, the Trustee
is subject to Section
11.6.
Section
11.4. Notice
of Events of Default, Rapid Amortization Events, Defaults and Potential Rapid
Amortization Events.
If an
Event of Default, Rapid Amortization Event, Default or Potential Rapid
Amortization Event occurs and is continuing and if a Trust Officer of the
Trustee actually knows or receives written notice thereof, the Trustee shall
promptly provide the Noteholders (if the Notes in respect of such Noteholder
are
represented by a Global Note, by telephone and facsimile, and if such Notes
in
respect of such Noteholder are represented by Definitive Notes, by first class
mail), each Enhancement Provider and each Rating Agency with notice of such
Event of Default, Rapid Amortization Event, Default or Potential Rapid
Amortization Event.
Section
11.5. Compensation
and
Expenses.
(a)
The
Issuers shall promptly pay to the Trustee from time to time compensation for
its
acceptance of the Indenture and services hereunder as the Issuers and the
Trustee may agree from time to time. The Trustee’s compensation shall not be
limited by any law on compensation of a trustee of an express trust. The Issuers
shall reimburse the Trustee promptly upon request for all reasonable
disbursements, advances and expenses incurred or made by it in addition to
the
compensation for its services in accordance with the priority of payment
provisions set forth in the applicable Series Supplement. Such expenses shall
include (i) the reasonable compensation, disbursements and expenses of the
Trustee’s agents and counsel and (ii) the reasonable expenses of the Trustee’s
agents in administering the Collateral.
(b) The
Issuers shall not be required to reimburse any expense or indemnify the Trustee
against any loss, liability, or expense incurred by the Trustee through the
Trustee’s own willful misconduct, negligence or bad faith.
(c) When
the
Trustee incurs expenses or renders services after an Event of Default or Rapid
Amortization Event occurs, the expenses and the compensation for the services
are intended to constitute expenses of administration under the Bankruptcy
Code.
(d) The
provisions of this Section
11.5
shall
survive the termination of this Indenture and the resignation and removal of
the
Trustee.
53
Section
11.6. Eligibility
Disqualification.
(a)
The
Trustee hereunder shall at all times be a corporation organized and doing
business under the laws of the United States or any state thereof authorized
under such laws to exercise corporate trust powers, having a long-term unsecured
debt rating of at least “A2” by ▇▇▇▇▇’▇ and “A” by Standard & Poor’s having,
in the case of an entity that is subject to risk-based capital adequacy
requirements, risk-based capital of at least $500,000,000 or, in the case of
an
entity that is not subject to risk-based capital adequacy requirements, having
a
combined capital and surplus of at least $500,000,000 and subject to supervision
or examination by federal or state authority, and shall satisfy the requirements
for a trustee set forth in paragraph (a)(4)(i) of Rule 3a-7 under the Investment
Company Act. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of the aforesaid supervising
or
examining authority, then for the purpose of this Section
11.6,
the
risk-based capital or the combined capital and surplus of such corporation,
as
the case may be, shall be deemed to be its risk-based capital or combined
capital and surplus as set forth in the most recent report of condition so
published.
(b) If
at any
time the Trustee ceases to be eligible in accordance with the provisions of
this
Section
11.6,
the
Trustee shall resign immediately in the manner and with the effect specified
in
Section
11.7.
Section
11.7. Replacement
of the Trustee.
(a)
A
resignation or removal of the Trustee and appointment of a successor Trustee
shall become effective only upon the successor Trustee’s acceptance of
appointment as provided in this Section
11.7
and the
satisfaction of the Rating Agency Condition.
(b) The
Trustee may, after giving sixty (60) days’ prior written notice to the Issuers,
each Noteholder, any Financial Insurance Provider and each Rating Agency, resign
at any time and be discharged from the trust hereby created by so notifying
the
Issuers; provided,
however,
that no
such resignation of the Trustee shall be effective until a successor trustee
has
assumed the obligations of the Trustee hereunder. The Controlling Party may
remove the Trustee by so notifying the Trustee, the Issuers and each Rating
Agency; provided
that if
a Financial Insurance Provider is the Controlling Party and it removes the
Trustee pursuant to this Section
11.7(b)
without
cause, such Financial Insurance Provider shall bear all costs incurred in
connection with the amendment of the notation on the Certificates of Titles
for
the Box Trucks to reflect the change in Trustee. The Issuers (for so long as
a
Financial Insurance Provider is the Controlling Party, with the consent of
the
Controlling Party) shall, and the Controlling Party may, remove the Trustee
upon
notice to each Rating Agency if:
(i) the
Trustee fails to comply with Section
11.6;
(ii) the
Trustee is adjudged a bankrupt or an insolvent or an order for relief is entered
with respect to the Trustee under the Bankruptcy Code;
(iii) a
custodian or public officer takes charge of the Trustee or its property;
or
(iv) the
Trustee becomes incapable of acting.
If
the
Trustee resigns or is removed or if a vacancy exists in the office of the
Trustee for any reason, the Issuers shall promptly appoint a successor Trustee
which shall be, so
54
(c) If
a
successor ▇▇▇▇▇▇▇ does not take office within thirty (30) days after the
retiring Trustee resigns or is removed, the retiring Trustee, any Issuer or
any
Secured Party may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(d) A
successor Trustee shall deliver a written acceptance of its appointment to
the
retiring or removed Trustee, to the Issuers and to any Financial Insurance
Provider. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under the 2007-1 Base Indenture and any Series
Supplement. The successor Trustee shall mail a notice of its succession to
Noteholders. The retiring Trustee shall promptly transfer all property held
by
it as Trustee to the successor Trustee. Notwithstanding replacement of the
Trustee pursuant to this Section
11.7,
the
Issuers’ obligations under Sections
11.5
and
11.11
shall
continue for the benefit of the retiring Trustee.
Section
11.8. Successor
Trustee by ▇▇▇▇▇▇, etc. Subject
to Section
11.6,
if the
Trustee consolidates, merges or converts into, or transfers all or substantially
all of its corporate trust business to, another corporation, the successor
corporation without any further act shall be the successor Trustee; provided
that
such successor corporation shall provide written notice of such consolidation,
merger or conversion to the Issuers, any Financial Insurance Provider and each
Noteholder.
Section
11.9. Appointment
of Co-Trustee or Separate Trustee.
(a)
Notwithstanding any other provisions of this 2007-1 Base Indenture or any Series
Supplement, at any time, for the purpose of meeting any legal requirements
of
any jurisdiction in which any part of the Collateral may at the time be located,
the Trustee shall have the power and may execute and deliver all instruments
to
appoint one or more persons to act as a co-trustee or co-trustees, or separate
trustee or separate trustees, of all or any part of the Collateral, and to
vest
in such Person or Persons, in such capacity and for the benefit of the Secured
Parties, such title to the Collateral, or any part thereof, and, subject to
the
other provisions of this Section
11.9,
such
powers, duties, obligations, rights and trusts as the Trustee may consider
necessary or desirable. No co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a successor trustee under
Section
11.6
and no
notice to Noteholders of the appointment of any co-trustee or separate trustee
shall be required under Section
11.7.
No
co-trustee shall be appointed without the consent of each Issuer unless such
appointment is required as a matter of state law or to enable the Trustee to
perform its functions hereunder.
(b) Every
separate trustee and co-trustee shall, to the extent permitted by law, be
appointed and act subject to the following provisions and
conditions:
(i) The
Notes
of each Series shall be authenticated and delivered solely by the Trustee or
an
authenticating agent appointed by the Trustee;
55
(ii) All
rights, powers, duties and obligations conferred or imposed upon the Trustee
shall be conferred or imposed upon and exercised or performed by the Trustee
and
such separate trustee or co-trustee jointly (it being understood that such
separate trustee or co-trustee is not authorized to act separately without
the
Trustee joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed, the
Trustee shall be incompetent or unqualified to perform, such act or acts, in
which event such rights, powers, duties and obligations (including the holding
of title to the Collateral or any portion thereof in any such jurisdiction)
shall be exercised and performed singly by such separate trustee or co-trustee,
but solely at the direction of the Trustee;
(iii) No
trustee hereunder shall be personally liable by reason of any act or omission
of
any other trustee hereunder; and
(iv) The
Trustee may at any time accept the resignation of or remove any separate trustee
or co-trustee.
(c) Any
notice, request or other writing given to the Trustee shall be deemed to have
been given to each of the then-separate trustees and co-trustees, as effectively
as if given to each of them. Every instrument appointing any separate trustee
or
co-trustee shall refer to this Indenture and the conditions of this Article
11.
Each
separate trustee and co-trustee, upon its acceptance of the trusts conferred,
shall be vested with the estates or property specified in its instrument of
appointment, either jointly with the Trustee or separately, as may be provided
therein, subject to all the provisions of this 2007-1 Base Indenture, any Series
Supplement and any other Security Agreement, specifically including every
provision of this 2007-1 Base Indenture, any Series Supplement or any other
Security Agreement relating to the conduct of, affecting the liability of,
or
affording protection to, the Trustee. Every such instrument shall be filed
with
the Trustee and a copy thereof given to the Issuers and any Financial Insurance
Provider.
(d) Any
separate trustee or co-trustee may at any time constitute the Trustee, its
agent
or attorney-in-fact with full power and authority, to the extent not prohibited
by law, to do any lawful act under or in respect to this 2007-1 Base Indenture,
any Series Supplement or any other Security Agreement on its behalf and in
its
name. If any separate trustee or co-trustee shall die, become incapable of
acting, resign or be removed, all of its estates, properties, rights, remedies
and trusts shall vest in and be exercised by the Trustee, to the extent
permitted by law, without the appointment of a new or successor
trustee.
(e) In
connection with the appointment of a co-trustee, the Trustee may, at any time,
at the Trustee’s sole cost and expense, without notice to the Noteholders but,
so long as a Financial Insurance Provider is the Controlling Party, subject
to
the prior written consent of the Controlling Party, delegate its duties under
this 2007-1 Base Indenture and any Series Supplement to any Person who agrees
to
conduct such duties in accordance with the terms hereof; provided,
however,
that no
such delegation shall relieve the Trustee of its obligations and
responsibilities hereunder with respect to any such delegated
duties.
56
Section
11.10. Representations
and Warranties of the Trustee.
The
Trustee represents and warrants to each Issuer and the Secured Parties
that:
(i) The
Trustee is a national banking association, organized, existing and in good
standing under the laws of the United States of America;
(ii) The
Trustee has full power, authority and right to execute, deliver and perform
this
2007-1 Base Indenture, any Series Supplement issued concurrently with this
2007-1 Base Indenture and each other Security Agreement and to authenticate
the
Notes, and has taken all necessary action to authorize the execution, delivery
and performance by it of this 2007-1 Base Indenture, any Series Supplement
issued concurrently with this 2007-1 Base Indenture and each other Security
Agreement and to authenticate the Notes;
(iii) This
2007-1 Base Indenture and each other Security Agreement has been duly executed
and delivered by the Trustee; and
(iv) The
Trustee meets the requirements of eligibility as a trustee hereunder set forth
in Section
11.6.
Section
11.11. Issuer
Indemnification of the Trustee.
The
Issuers shall, jointly and severally, indemnify and hold harmless the Trustee
and its directors, officers, agents and employees from and against any claim,
loss, liability, expense, damage or injury suffered or sustained by reason
of
any acts, omissions or alleged acts or omissions arising out of the activities
of the Trustee pursuant to this 2007-1 Base Indenture or any Series Supplement,
including but not limited to any judgment, award, settlement, reasonable
attorneys’ fees and other costs or expenses reasonably incurred in connection
with the defense of any actual or threatened action, proceeding or claim;
provided,
however,
that
the Issuers shall not indemnify the Trustee or its directors, officers,
employees or agents if such acts, omissions or alleged acts or omissions
constitute bad faith, negligence or willful misconduct by the Trustee;
provided further
that any
amounts payable pursuant to this Section
11.11
shall be
made through the application of Collections made in accordance with the priority
of payment provisions set forth in the applicable Series Supplement. The
indemnity provided herein shall survive the termination of the Indenture and
the
resignation and removal of the Trustee.
ARTICLE
12.
DISCHARGE
OF INDENTURE
Section
12.1. Termination
of the Issuers’ Obligations.
(a)
The
Indenture shall cease to be of further effect (except that each Issuer’s
obligations under Section
11.5
and
Section
11.11
and the
Trustee’s and Paying Agent’s obligations under Section
12.3
shall
survive) when all Outstanding Notes theretofore authenticated and issued have
been delivered (other than destroyed, lost or stolen Notes which have been
replaced or paid) to the Trustee for cancellation, the Issuers have paid all
sums payable hereunder or under any Related Document and any Financial Insurance
Provider has received all amounts due and payable to it hereunder or under
any
Related Document.
57
(b) In
addition, except as may be provided to the contrary in any Series Supplement,
the Issuers may terminate all of their obligations under the Indenture
if:
(i) the
Issuers irrevocably deposit in trust with the Trustee or at the option of the
Trustee, with a trustee reasonably satisfactory to the Trustee and the Issuers
under the terms of an irrevocable trust agreement in form and substance
satisfactory to the Trustee, money or U.S. Government Obligations in an amount
sufficient, in the opinion of a nationally recognized firm of independent
certified public accountants expressed in a written certification thereof
delivered to the Trustee, to pay, when due, principal of and interest and
prepayment premium on the Notes to maturity or redemption, as the case may
be,
and to pay all other sums payable by them hereunder; provided,
however,
that
(1) the trustee of the irrevocable trust shall have been irrevocably instructed
to pay such money or the proceeds of such U.S. Government Obligations to the
Trustee and (2) the Trustee shall have been irrevocably instructed to apply
such
money or the proceeds of such U.S. Government Obligations to the payment of
said
principal, interest and prepayment premium with respect to the
Notes;
(ii) each
Issuer delivers to the Trustee an Officer’s Certificate stating that all
conditions precedent to satisfaction and discharge of the Indenture have been
complied with, and an Opinion of Counsel to the same effect;
(iii) the
Rating Agency Condition is satisfied; and
(iv) any
Financial Insurance Provider has received all amounts due and payable hereunder
or under any other Related Document and any Financial Insurance Policy has
been
terminated or canceled (other than with regard to Preference Payments (as
defined therein)) by the Trustee and returned to such Financial Insurance
Provider.
Then,
the
Indenture shall cease to be of further effect (except as provided in this
Section
12.1),
and the
Trustee, on demand of the Issuers, shall execute proper instruments
acknowledging confirmation of and discharge under the Indenture.
(c) After
such irrevocable deposit made pursuant to Section
12.1(b)
and
satisfaction of the other conditions set forth herein, the Trustee upon request
shall acknowledge in writing the discharge of the Issuers’ obligations under the
Indenture except for those surviving obligations specified above.
In
order
to have money available on a payment date to pay principal or interest on the
Notes, the U.S. Government Obligations shall be payable as to principal or
interest at least one Business Day before such payment date in such amounts
as
will provide the necessary money. U.S. Government Obligations shall not be
callable at the issuer’s option.
Section
12.2. Application
of Trust Money.
The
Trustee or a trustee satisfactory to the Trustee and the Issuers shall hold
in
trust money or U.S. Government Obligations deposited with it pursuant to
Section
12.1.
The
Trustee shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent in accordance with the Indenture to the
payment of principal of and interest on the Notes.
58
The
provisions of this Section
12.2
shall
survive the expiration or earlier termination of the Indenture.
Section
12.3. Repayment
to the Issuers.
The
Trustee and the Paying Agent shall promptly pay to the Issuers, at their
direction upon written request, any excess money or, pursuant to Sections
2.6,
return
any Notes held by them at any time.
The
provisions of this Section
12.3
shall
survive the expiration or earlier termination of the Indenture.
Section
12.4. Reinstatement.
If the
Trustee or Paying Agent is unable to apply any funds received under this
Article
12
by
reason of any proceeding, order or judgment of any court or Governmental
Authority enjoining, restraining or otherwise prohibiting such application,
the
Issuer Obligations shall be revived and reinstated as though no deposit had
occurred, until such time as the Trustee or Paying Agent is permitted to apply
all such funds or property in accordance with this Article
12.
If the
Issuers make any payment of principal of, or interest or prepayment premium
on,
any Notes or any other sums under the Indenture while such obligations have
been
reinstated, the Issuers shall be subrogated to the rights of the Noteholders
or
other Secured Parties who received such funds or property from the Trustee
to
receive such payment in respect of the Notes.
ARTICLE
13.
AMENDMENTS
Section
13.1. Without
Consent of the Noteholders.
Without
the consent of any Noteholder, the Issuers and the Trustee (solely as long
as a
Financial Insurance Provider is the Controlling Party, acting at the direction
of the Controlling Party), at any time and from time to time, may, with the
written consent of the Controlling Party (solely as long as a Financial
Insurance Provider is the Controlling Party), enter into one or more Supplements
hereto, in form satisfactory to the Trustee, and any Issuer may amend or
otherwise modify any Related Document to which it is a party, in each case
for
any of the following purposes:
(a) subject
to Section
2.3,
to
create a new Series of Notes;
(b) to
add to
the covenants of any Issuer for the benefit of any Secured Parties or to
surrender any right or power herein conferred upon any Issuer (provided,
however,
that no
Issuer will pursuant to this subsection
13.1(b)
surrender any right or power it has against any other Issuer, the Nominee
Titleholder, the Fleet Manager or any Rental Company under the Related
Documents);
(c) to
mortgage, pledge, convey, assign and transfer to the Trustee any prop-erty
or
assets as security for the Notes and to specify the terms and conditions upon
which such property or assets are to be held and dealt with by the Trustee
and
to set forth such other provisions in respect thereof as may be required by
the
Indenture or as may, consistent with the provisions of the Indenture, be deemed
appropriate by the Issuers and the Trustee, or to correct or amplify the
description of any such property or assets at any
59
(d) to
cure
any mistake, ambiguity, defect, or inconsistency or to correct or supplement
any
provision contained herein or in any Related Document to which any Issuer is
a
party;
(e) to
evidence and provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Notes; or
(f) to
correct or supplement any provision herein or in any Related Document to which
any Issuer is a party which may be inconsistent with any other provision herein
or therein or to make consistent any other provisions with respect to matters
or
questions arising hereunder or under any Related Document to which any Issuer
is
a party;
provided,
however,
that,
so long as a Financial Insurance Provider is not the Controlling Party, such
action shall not adversely affect in any material respect the interests of
any
Noteholders, as evidenced by an Opinion of Counsel delivered to the Trustee;
provided further
that the
failure of any Financial Insurance Provider to respond to the Issuers’ written
request for consent to any amendment pursuant to clause
(d)
or
(f)
above
(which request refers to this Section
13.1
and
includes the text of this proviso therein in its entirety) within fifteen (15)
Business Days of actual receipt thereof by an Authorized Officer of such
Financial Insurance Provider will constitute such Controlling Party’s consent to
such amendment. Upon the request of the Issuers, the Trustee shall join with
the
Issuers in the execution of any Supplement authorized or permitted by the terms
of the Indenture and shall make any further appropriate agreements and
stipulations which may be therein contained, but the Trustee shall not be
obligated to enter into such Supplement which adversely affects its own rights,
duties or immunities under the Indenture or otherwise. The Issuers shall give,
or cause to be given, prior written notice of any amendment to be made pursuant
to this Section
13.1
to each
Rating Agency.
Section
13.2. With
Consent of the Noteholders.
Except
as provided in Section
13.1,
the
provisions of this 2007-1 Base Indenture and any Series Supplement (unless
otherwise provided in such Series Supplement) and each other Related Document
to
which any Issuer is a party may from time to time be amended, modified or
waived, if such amendment, modification or waiver is in writing and consented
to
in writing by each Issuer, the Trustee (acting at the direction of the
Controlling Party) and the Controlling Party. In addition to the
foregoing:
(i) (w)
any
modification of this Section
13.2,
(x) any
change in any requirement hereunder that any particular action be taken by
Noteholders holding the relevant percentage in principal amount of the Notes,
(y) any change in the definition of the term “Aggregate Note Balance” or any
defined term used for the purpose of such definition and (z) any change in
the
definition of the terms “Aggregate Asset Amount,” “Aggregate Asset Amount
Deficiency,” “Discounted Aggregate Asset Amount” or any defined term used for
the purpose of any such definitions, which change, solely in the case of
clause
(z),
could
reasonably be expected to a material adverse effect on any Noteholder, shall
require the consent of each affected Noteholder; and
60
(ii) any
amendment, waiver or other modification that would (a) extend the due date
for,
or reduce the amount of any scheduled repayment or prepayment of principal
of or
interest on any Note (or reduce the principal amount of or rate of interest
on
any Note) shall require the consent of each affected Noteholder; (b) approve
the
assignment or transfer by any Issuer of any of its rights or obligations
hereunder or under any other Related Document to which it is a party except
pursuant to the express terms hereof or thereof shall require the consent of
each Noteholder; (c) release any obligor under any Related Document to which
it
is a party except pursuant to the express terms of such Related Document shall
require the consent of each Noteholder; (d) affect adversely the interests,
rights or obligations of any Noteholder individually in comparison to any other
Noteholder shall require the consent of such Noteholder; or (e) amend or
otherwise modify any Rapid Amortization Event not subject to waiver shall
require the consent of each affected Noteholder.
The
Issuers shall give, or cause to be given, prior written notice of any amendment
to be made pursuant to this Section
13.2
to each
Rating Agency.
Section
13.3. Supplements.
Each
amendment or other modification to the Indenture or the Notes shall be set
forth
in a Supplement. In addition to the manner provided in Sections
13.1
and
13.2,
each
Series Supplement may be amended as provided for in such Series
Supplement.
Section
13.4. Revocation
and Effect of Consents.
Until
an amendment or waiver becomes effective, a consent to it by a Noteholder of
a
Note is a continuing consent by the Noteholder and every subsequent Noteholder
of a Note or portion of a Note that evidences the same debt as the consenting
Noteholder’s Note, even if notation of the consent is not made on any Note.
However, any such Noteholder or subsequent Noteholder may revoke the consent
as
to his Note or portion of a Note if the Trustee receives written notice of
revocation before the date the amendment or waiver becomes effective. An
amendment or waiver becomes effective in accordance with its terms and
thereafter binds every Noteholder. The Issuers may fix a record date for
determining which Noteholders must consent to such amendment or
waiver.
Section
13.5. Notation
on or Exchange of Notes.
The
Trustee may place an appropriate notation about an amendment or waiver on any
Note thereafter authenticated. The Issuers in exchange for all Notes may issue
and the Trustee shall authenticate new Notes that reflect the amendment or
waiver. Failure to make the appropriate notation or issue a new Note shall
not
affect the validity and effect of such amendment or waiver.
Section
13.6. The
Trustee to Sign Amendments, etc.The
Trustee shall sign any Supplement authorized pursuant to this Article
13
if the
Supplement does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign
it.
In signing such Supplement, the Trustee shall be entitled to receive, if
requested, an indemnity reasonably satisfactory to it and to receive and shall
be fully protected in relying upon, Officer’s Certificates and an Opinion of
Counsel as conclusive evidence that such Supplement is authorized or permitted
by the Indenture and that it will be valid and binding upon the Issuers in
accordance with its terms.
61
ARTICLE
14.
MISCELLANEOUS
Section
14.1. Notices.
(a)
Any
notice or communication under the Indenture by any Issuer to the Trustee or
any
other party, or by the Trustee to any Issuer or any other party shall be in
writing and delivered in person or mailed by first-class mail (registered or
certified, return receipt requested), facsimile, overnight air courier
guaranteeing next day delivery or, solely with the recipient’s consent, e-mail,
to the other’s address, which may be updated or amended from time to time by
written notice to the other party:
If
to any
Issuer:
c/o
U-Haul S Fleet, LLC
▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇
Reno,
Nevada 89502
Attn: Assistant
Treasurer
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
with
a
copy to:
c/o
U-Haul S Fleet, LLC
▇▇▇▇
▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Phoenix,
Arizona 85004
Attn: Assistant
General Counsel and Secretary
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
with
a
copy to the Administrator:
U-Haul
International, Inc.
▇▇▇▇
▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Phoenix,
Arizona
Attn: Assistant
General Counsel and Secretary
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
Email: ▇▇▇▇▇▇▇▇_▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
If
to the
Trustee:
U.S.
Bank
National Association
c/o
U.S.
Bank Corporate Trust Services
▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, 3rd
Floor
Mailcode:
MK-IL-RY3B
Chicago,
Illinois 60604-1219
62
Attn: U-Haul
2007-1
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇)
▇▇▇-▇▇▇▇
If
to an
Enhancement Provider, at the address provided in the applicable Enhancement
Agreement.
Any
Issuer or the Trustee by notice to the other and each Enhancement Provider
may
designate additional or different addresses for subsequent notices or
communications; provided,
however,
no
Issuer may not at any time designate more than a total of three (3) addresses
to
which notices must be sent in order to be effective.
Any
notice (i) given in person shall be deemed delivered on the date of delivery
of
such notice, (ii) given by first class mail shall be deemed given five (5)
days
after the date that such notice is mailed, (iii) delivered by facsimile or
other
electronic means (including e-mail) shall be deemed given on the date of
delivery of such notice, and (iv) delivered by overnight air courier shall
be
deemed delivered one Business Day after the date that such notice is delivered
to such overnight courier.
Notwithstanding
any provisions of the Indenture to the contrary, the Trustee shall have no
liability based upon or arising from the failure to receive any notice required
by or relating to the Indenture or the Notes.
If
the
Issuers mail a notice or communication to Noteholders, they shall mail a copy
to
the Trustee and any Financial Insurance Provider at the same time.
(b) Where
the
Indenture provides for notice to Noteholders of any event, such notice shall
be
sufficiently given (unless otherwise herein expressly provided) if sent in
writing and mailed, first-class postage prepaid, to each Noteholder affected
by
such event, at its address as it appears in the Note Register, not later than
the latest date, and not earlier than the earliest date, prescribed (if any)
for
the giving of such notice. In any case where notice to Noteholder is given
by
mail, neither the failure to mail such notice, nor any defect in any notice
so
mailed, to any particular Noteholder shall affect the sufficiency of such notice
with respect to other Noteholders, and any notice which is mailed in the manner
herein provided shall be conclusively presumed to have been duly given. Where
the Indenture provides for notice in any manner, such notice may be waived
in
writing by any Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers
of
notice by Noteholders shall be filed with the Trustee, but such filing shall
not
be a condition precedent to the validity of any action taken in reliance upon
such waiver. Any notice delivered to any Issuer in accordance with the terms
of
this Section
14.1
shall be
deemed to have been given to each Issuer.
In
the
case by reason of the suspension of regular mail service or by reason of any
other cause it shall be impracticable to give such notice by mail, then such
notification as shall be made that is satisfactory to the Trustee shall
constitute a sufficient notification for every purpose hereunder.
63
Section
14.2. Communication
by Noteholders With Other Noteholders.
Noteholders may communicate with other Noteholders with respect to their rights
under this Indenture or the Notes and any Financial Insurance Provider may
communicate with any Noteholders.
Section
14.3. Certificate
and Opinion as to Conditions Precedent.
Upon
any request or application by the Issuers to the Trustee to take any action
under the Indenture or any other Security Agreement , the Issuers shall furnish
to the Trustee an Officer’s Certificate of each Issuer in form and substance
reasonably satisfactory to the Trustee (which shall include the statements
set
forth in Section
14.4)
stating
that, in the opinion of the signers, all conditions precedent and covenants,
if
any, provided for in the Indenture or any other Security Agreement relating
to
the proposed action have been complied with.
Section
14.4. Statements
Required in Certificate.
Each
certificate with respect to compliance with a condition or covenant provided
for
in the Indenture or any other Security Agreement shall include:
(a) a
statement that the Person giving such certificate has read such covenant or
condition;
(b) a
brief
statement as to the nature and scope of the examination or investigation upon
which the statements contained in such certificate are based;
(c) a
statement that, in the opinion of such Person, he has made such examination
or
investigation as is necessary to enable him to express an informed opinion
as to
whether or not such covenant or condition has been complied with;
and
(d) a
statement as to whether or not, in the opinion of such Person, such condition
or
covenant has been complied with.
Section
14.5. Rules
by the Trustee.
The
Trustee may make reasonable rules for action by or at a meeting of
Noteholders.
Section
14.6. Duplicate
Originals.
The
parties may sign any number of copies of this 2007-1 Base Indenture. One signed
copy is sufficient to prove this 2007-1 Base Indenture.
Section
14.7. Benefits
of Indenture.
Except
as set forth in a Series Supplement, nothing in this 2007-1 Base Indenture
or in
the Notes, expressed or implied, shall give to any Person, other than the
parties hereto and their successors hereunder and the Holders, any benefit
or
any legal or equitable right, remedy or claim under the Indenture. Each
Financial Insurance Provider shall be deemed to be a third-party beneficiary
of
this 2007-1 Base Indenture and shall be entitled to enforce the obligations
of
the parties hereunder.
Section
14.8. Payment
on Business Day.
In any
case where any Payment Date, redemption date or maturity date of any Note shall
not be a Business Day, then (notwithstanding any other provision of the
Indenture) payment of interest or principal (and prepayment premium, if
any),
as
the
case may be, need not be made on such date but may be made on the next
succeeding Business Day with the same force and effect as if made on the Payment
Date,
64
Section
14.9. Governing
Law.
THIS
2007-1 BASE INDENTURE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
Section
14.10. No
Adverse Interpretation of Other Agreements.
The
Indenture may not be used to interpret another indenture, loan or debt agreement
of any Issuer or an Affiliate of any Issuer. Any such indenture, loan or debt
agreement may not be used to interpret the Indenture.
Section
14.11. Successors.
All
agreements of each Issuer in the Indenture and the Notes shall bind its
successor; provided,
however,
no
Issuer may assign its obligations or rights under the Indenture or any Related
Document except with the prior written consent of the Controlling Party and
in
accordance with the terms thereof. All agreements of the Trustee in the
Indenture shall bind its successor.
Section
14.12. Severability.
In case
any provision in the Indenture or in the Notes shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Section
14.13. Counterpart
Originals.
The
parties may sign any number of copies of this 2007-1 Base Indenture. Each signed
copy shall be an original, but all of them together represent the same
agreement.
Section
14.14. Table
of Contents, Headings, etc.The
Table
of Contents, Cross-Reference Table, and headings of the Articles and Sections
of
this 2007-1 Base Indenture have been inserted for convenience of reference
only,
are not to be considered a part hereof, and shall in no way modify or restrict
any of the terms or provisions hereof.
Section
14.15. Termination;
Collateral.
This
2007-1 Base Indenture, and any grants, pledges and assignments hereunder, shall
become effective concurrently with the issuance of the first Series of Notes
and, subject to Section
3.4,
shall
terminate when (a) all Issuer Obligations shall have been fully paid and
satisfied, (b) the obligations of each Enhancement Provider under any
Enhancement and related documents have terminated and been released, and
(c) any Enhancement shall have terminated, at which time the Trustee, at
the request of the Issuers and upon receipt of an Officer’s Certificate from
each Issuer to the effect that the conditions in clauses (a), (b)
and
(c) above have been complied with and upon receipt of a certificate from the
Trustee and each Enhancement Provider to the effect that the conditions in
clauses
(a), (b)
and
(c)
above
relating to Issuer Obligations to the Noteholders and each Enhancement Provider
have been complied with, shall reassign (without recourse upon, or any warranty
whatsoever by, the Trustee) and deliver all Collateral and documents then in
the
custody or possession of the Trustee promptly to the order of the Issuers;
provided,
however,
that
the grants, pledges and assignments so terminated shall continue to be effective
or automatically be reinstated, as the case may be, if payment of any Issuer
Obligation is rescinded or otherwise must be restored or returned
by the Trustee or any Noteholder upon the insolvency,
bankruptcy,
65
Section
14.16. Release
of an Issuer.
In the
event that all of the Box Trucks owned by a Box Truck SPV are sold or otherwise
disposed of in accordance with Section
IV
of the
SPV Fleet Owner Agreement and the Disposition Proceeds thereof are distributed
in accordance with the terms of the Indenture, such Box Truck SPV shall be
released and discharged from its obligations under the Indenture and shall
be
deemed to no longer be an Issuer hereunder.
Section
14.17. No
Bankruptcy Petition.
Each of
the Secured Parties and the Trustee hereby covenants and agrees that, prior
to
the date which is one year and one day after the payment in full of all Issuer
Obligations, it will not institute against, or join with any other Person in
instituting against, any Issuer, any Permitted Note Issuance SPV or the Nominee
Titleholder any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceedings, or other proceedings, under any federal or state
bankruptcy or similar law; provided,
however,
that
nothing in this Section
14.17
shall
constitute a waiver of any right to indemnification, reimbursement or other
payment from the Issuers pursuant to this 2007-1 Base Indenture or any other
Related Document. In the event that any such Secured Party or any Trustee takes
action in violation of this Section
14.17,
such
Issuer, such Permitted Note Issuance SPV or the Nominee Titleholder shall file
an answer with the bankruptcy court or otherwise properly contesting the filing
of such a petition by any such Secured Party or the Trustee against such Issuer,
such Permitted Note Issuance SPV or the Nominee Titleholder or the commencement
of such action and raising the defense that such Secured Party or the Trustee
has agreed in writing not to take such action and should be estopped and
precluded therefrom and such other defenses, if any, as its counsel advises
that
it may assert. The provisions of this Section
14.17
shall
survive the termination of this 2007-1 Base Indenture, and the resignation
or
removal of the Trustee. Nothing contained herein shall preclude participation
by
any Secured Party or the Trustee in the assertion or defense of its claims
in
any such proceeding involving any Issuer, any Permitted Note Issuance SPV or
the
Nominee Titleholder.
Section
14.18. No
Recourse.Notwithstanding
any provisions herein to the contrary, all of the obligations of each Issuer
under or in connection with the Notes and the Indenture are nonrecourse
obligations of such Issuer payable solely from the Collateral and following
realization of the Collateral and its reduction to zero, any claims of the
Noteholders and the Trustee against such Issuer shall be extinguished and shall
not thereafter revive. Each Noteholder, by accepting a Note, acknowledges and
agrees that the Issuers will only make payments with respect to any Issuer
Obligations to the extent of funds available pursuant to the terms of the
Indenture. It is understood that the foregoing provisions of this Section
14.18
shall
not (i) prevent recourse to the Collateral for the sums due or to become due
under any security, instrument or agreement which is part of the Collateral
or
(ii) constitute a waiver, release or discharge of any indebtedness or obligation
evidenced by the Notes or secured by the Indenture (to the extent it relates
to
the obligation to make payments on the Notes) until such Collateral has been
realized and reduced to zero, whereupon any outstanding Indebtedness or other
obligation in respect of the Notes shall be extinguished and shall not
thereafter revive. It is further understood that the foregoing provisions of
this Section
14.18
shall
not limit the right of any Person to name any Issuer as a party defendant in
any
Proceeding or in the exercise of any other
66
Section
14.19. Subordination.Each
Noteholder by accepting a Note acknowledges and agrees that such Note represents
nonrecourse indebtedness of the Issuers secured by the Collateral and that
as a
Noteholder it shall have no right, title, claim or interest in or to any other
assets pledged by USF to secure any other Indebtedness of USF (“Other
Assets”),
it
being understood and agreed by the Issuers that the Collateral shall not be
pledged to secure any other Indebtedness. To the extent that, notwithstanding
the agreements and provisions contained in the preceding sentence of this
Section
14.19,
any
Noteholder either (i) asserts an interest or claim to, or benefit from, Other
Assets or (ii) is deemed to have any such interest, claim or benefit in or
from
Other Assets, whether by operation of law, legal process, pursuant to applicable
provisions of insolvency laws or otherwise (including by virtue of Section
1111(b) of the Bankruptcy Code or any successor provision having similar effect
under the Bankruptcy Code), each Noteholder by accepting a Note further
acknowledges and agrees that any such interest, claim or benefit in or from
Other Assets is and shall be expressly subordinated to the indefeasible payment
in full of all Indebtedness secured by such Other Assets (whether or not any
such entitlement or security interest is legally perfected or otherwise entitled
to a priority of distribution or application under applicable law, including
insolvency laws), including, the payment of post-petition interest on such
other
Indebtedness. This subordination agreement shall be deemed a subordination
agreement within the meaning of Section 510(a) of the Bankruptcy Code. Each
Noteholder further acknowledges and agrees that no adequate remedy at law exists
for a breach of this Section
14.19
and the
terms of this Section
14.19
may be
enforced by an action for specific performance. Nothing herein is intended
to be
construed to permit the issuance of other Indebtedness of any Box Truck SPV
while the Indebtedness under the Notes is Outstanding, or to permit USF to
issue
any Indebtedness except on the terms and conditions expressly provided
herein.
Section
14.20. Waiver
of Trial by Jury.
EACH
PARTY HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS 2007-1 BASE INDENTURE
OR ANY SERIES SUPPLEMENT HERETO OR ANY OTHER RELATED DOCUMENT TO WHICH IT IS
A
PARTY, OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED
OR
WHICH MAY IN THE FUTURE BE DELIVERED IN CONNEC-TION THEREWITH OR ARISING FROM
ANY RELATIONSHIP EXISTING IN CONNECTION WITH THIS 2007-1 BASE INDENTURE OR
ANY
SERIES SUPPLEMENT HERETO OR ANY RELATED TRANSACTION, AND AGREES THAT ANY SUCH
ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY.
Section
14.21. Submission
to Jurisdiction.
The
Trustee may enforce any claim arising out of the Indenture in any state or
federal court having subject matter jurisdiction and located in New York, New
York. For the purpose of any action or proceeding instituted with respect to
any
such claim, each Issuer hereby irrevocably submits to the jurisdiction of such
courts. Each Issuer irrevocably consents to the service of process out of said
courts by mailing a copy thereof, by registered mail, postage prepaid, to such
Issuer and agrees that such service, to the fullest extent permitted by law,
(i)
shall be deemed in every respect effective service of
67
Section
14.22. Know
Your Customer.
To help
the government fight the funding of terrorism and money laundering activities,
Federal law requires all financial institutions to obtain, verify and record
information that identifies each person who opens an account. For a
non-individual Person such as a business entity, a charity, a trust or other
legal entity, the Trustee will ask for documentation to verify its formation
and
existence as a legal entity. The Trustee may also ask to see financial
statements, licenses, identification and authorization documents from
individuals claiming authority to represent the entity or other relevant
documentation.
68
IN
WITNESS WHEREOF, the Trustee and each Issuer have caused, this 2007-1 Base
Indenture to be duly executed by their respective duly authorized officers
as of
the day and year first written above.
U-HAUL
S
FLEET, LLC,
as
Issuer
By:
Name:
Title:
2007
TM-1, LLC,
as
Issuer
By:
Name:
Title:
2007
DC-1, LLC,
as
Issuer
By:
Name:
Title:
2007
EL-1, LLC,
as
Issuer
By:
Name:
Title:
U.S.
BANK
NATIONAL ASSOCIATION,
as
Trustee
By:
Name:
Title:
Schedule
I
Definitions
List
EXHIBIT
A
FORM
OF MONTHLY REPORT
A-1
EXHIBIT
B
LIMITED
GUARANTEE
made
by
[BOX
TRUCK SPV]
in
favor
of
[PERMITTED
NOTE ISSUANCE TRUSTEE]
Dated
as
of [__________ __, _____]
LIMITED
GUARANTEE
This
LIMITED GUARANTEE (this “Limited
Guarantee”), dated
as
of [________ ___, ____] made by [BOX TRUCK SPV], a Nevada limited liability
company (the “Guarantor”),
in
favor of [PERMITTED NOTE ISSUANCE TRUSTEE], a [_____________] (the “Permitted
Note Issuance Trustee”).
RECITALS:
WHEREAS,
the Guarantor, U-Haul S Fleet, LLC (“USF”),
and
each other Box Truck SPV have entered into that certain 2007-1 Box Truck Base
Indenture with U.S. Bank National Association, dated as of the date hereof
(as
amended, supplemented or otherwise modified in accordance with its terms, the
“2007-1
Base Indenture”),
as
supplemented by one or more Series Supplements thereto (as so supplemented,
the
“Indenture”),
providing for the issuance by the Guarantor, USF and each other Box Truck SPV
of
one or more series of notes (the “Notes”);
WHEREAS,
USF has entered into an indenture, dated the date hereof (the “Permitted
Note Issuance Indenture”)
with
the Permitted Note Issuance Trustee pursuant to which it will issue, jointly
and
severally with [___________], [___________] and [____________] (collectively,
the “Permitted
Note Issuance SPVs”),
one
or more series of Permitted Notes;
WHEREAS,
the Guarantor has obtained or will obtain benefits from the use of the proceeds
of the issuance of the Notes; and
WHEREAS,
pursuant to the terms of the 2007-1 Base Indenture, and as a condition to the
issuance of the Permitted Notes in accordance with the Permitted Note Issuance
Indenture, the Guarantor is required to guarantee, on an unsecured basis, the
full and prompt payment of the Guaranteed Obligations (as hereinafter defined)
when due pursuant to, and in accordance with, the terms and conditions of this
Limited Guarantee;
NOW,
THEREFORE, in consideration of the mutual agreements contained herein and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Guarantor hereby agrees, covenants, represents and warrants
to
the Permitted Note Issuance Trustee as follows:
Section
1. Definitions.
(a) All
capitalized terms used and not defined herein shall have the respective meanings
given such terms in Schedule I to the 2007-1 Base Indenture; provided,
however,
that if
a term used herein is defined both herein and in the 2007-1 Base Indenture,
the
definition of such term herein shall govern.
(b) The
words
“hereof,” “herein”, “hereto” and “hereunder” and words of similar import when
used in this Limited Guarantee shall refer to this Limited Guarantee as a whole
and not to any particular provision of this Limited Guarantee, and Section
references are to this Limited Guarantee unless otherwise
specified.
B-1
(c) The
meanings given to terms defined herein shall be equally applicable to both
the
singular and plural forms of such terms.
Section
2. Guarantee.
a)
The
Guarantor hereby irrevocably, absolutely and unconditionally assumes liability
for, and guarantees for the benefit of the Permitted Note Issuance Trustee,
the
prompt and complete payment and performance of the following obligations and
liabilities (hereinafter collectively referred to as the “Guaranteed
Obligations”)
on the
terms set forth herein:
(i) payment
by USF of all amounts owed by it pursuant to its joint liability under the
Permitted Note Issuance Indenture in connection with any Permitted Notes issued
thereunder, whether for principal, interest, prepayment premium, fees,
penalties, expenses, indemnities or otherwise; and
(ii) payment
of any and all expenses, including reasonable attorneys’ fees incurred by the
Permitted Note Issuance Trustee in enforcing its rights under this Limited
Guarantee.
(b) All
sums
payable under this Limited Guarantee shall be payable within five (5) days
after
demand therefor and without reduction for any offset, claim, counterclaim or
defense.
(c) All
amounts payable by the Guarantor under this Limited Guarantee will be made
through the application of Collections made in accordance with the priority
of
payment provisions set forth in the Indenture.
Section
3. Representations
and Warranties.
The
Guarantor hereby represents and warrants to the Permitted Note Issuance Trustee,
as of the date hereof and as of each date of issuance of any Permitted Notes
under the Permitted Note Issuance Indenture that:
(a) Organization;
Ownership; Power; Qualification.
The
Guarantor (i) is a limited liability company, duly organized, validly existing
and in good standing under the laws of the jurisdiction of its formation, (ii)
has the power and authority to own its properties and to carry on its business
as now being and hereafter proposed to be conducted and (iii) is duly qualified,
in good standing and authorized to do business in each jurisdiction in which
the
character of its properties or the nature of its businesses requires such
qualification or authorization, except, in the case of clause
(iii),
for
such qualification or authorization the lack of which could not be reasonably
expected to have a Material Adverse Effect.
(b) Power
and Authorization; Enforceability.
The
Guarantor has the power and has taken all necessary action to authorize it
to
execute, deliver and perform this Limited Guarantee and each of the other
Related Documents to which it is a party in accordance with their respective
terms, and to consummate the transactions contemplated hereby and thereby.
This
Limited Guarantee has been duly executed and delivered by the Guarantor and
is,
and each of the other Related Documents to which the Guarantor is a party is,
a
legal, valid and binding obligation of the Guarantor enforceable in accordance
with its terms.
B-2
(c) Compliance.
The
execution, delivery and performance by the Guarantor of this Limited Guarantee
and each other Related Document to which it is a party, and the consummation
of
the transactions contemplated hereby and thereby, do not and will not (i)
require any consent, approval, authorization or registration not already
obtained or effected, (ii) violate any applicable law with respect to the
Guarantor which violation could result in a material adverse effect on its
financial condition, business, prospects or properties or a Material Adverse
Effect, (iii) conflict with, result in a breach of, or constitute a default
under the certificate of formation or limited liability company agreement of
the
Guarantor, or under any indenture, agreement, or other instrument to which
the
Guarantor is a party or by which its properties may be bound, or (iv) result
in
or require the creation or imposition of any Lien upon or with respect to any
property now owned or hereafter acquired by the Guarantor except Permitted
Liens.
(d) Litigation.
There is
no action, suit or proceeding pending against or, to the knowledge of the
Guarantor, threatened against or affecting the Guarantor before any court or
arbitrator or any Governmental Authority that could materially adversely affect
the financial position, results of operations, business, properties, performance
or condition (financial or otherwise) of the Guarantor or which in any manner
draws into question the validity or enforceability of this Limited Guarantee
or
any other Related Document or the ability of the Guarantor to comply with any
of
the respective terms hereunder or thereunder.
Section
4. Covenants.
The
Guarantor hereby covenants and agrees that, until the payment in full of all
Issuer Obligations under the Indenture:
(a) Existence;
Foreign Qualification.
The
Guarantor shall do and cause to be done at all times all things necessary to
(i)
maintain and preserve its existence as a limited liability company, (ii) be,
and
ensure that it is, duly qualified to do business and in good standing as a
foreign limited liability company in each jurisdiction where the nature of
its
business makes such qualification necessary and the failure to so qualify would
have a material adverse effect on its financial condition, business, prospects
or properties or a Material Adverse Effect and (iii) comply with all Contractual
Obligations and Requirements of Law binding upon it, except to the extent that
the failure to comply therewith would not, in the aggregate, have a material
adverse effect on its financial condition, business, prospects or properties
or
a Material Adverse Effect.
(b) Business.
The
Guarantor shall engage only in businesses that are permitted by its Box Truck
SPV Limited Liability Company Agreement.
(c) Compliance
with the 2007-1 Base Indenture.
The
Guarantor shall perform all of its obligations under the 2007-1 Base Indenture
in accordance with the terms thereof and shall comply with all of the provisions
thereof.
Section
5. Unconditional
Character of Obligations of the Guarantor.
(a) The
obligations of the Guarantor hereunder shall be irrevocable, absolute and
unconditional, irrespective of the validity, regularity or enforceability,
in
whole or in part, of any Permitted Notes or the Permitted Note Issuance
Indenture or any provision thereof or any document or instrument related
thereto, or the absence of any action to enforce the same, any waiver or consent
with respect to any provision thereof, the recovery of any judgment against
USF,
the
B-3
(b) The
obligations of the Guarantor under this Limited Guarantee, and the rights of
the
Permitted Note Issuance Trustee to enforce the same by proceedings, whether
by
action at law, suit in equity or otherwise shall not be in any way affected
by
any of the following:
(i) any
insolvency, bankruptcy, liquidation, reorganization, readjustment, composition,
dissolution, receivership, conservatorship, winding up or other similar
proceeding involving or affecting USF, the Collateral, the collateral for the
Guaranteed Obligations, the Guarantor or any other Person;
(ii) any
failure by USF or any other Person, whether or not without fault on its part,
to
perform or comply with any of the terms of the Permitted Notes or the Permitted
Note Issuance Indenture or any document or instrument relating
thereto;
(iii) the
release of USF or any other Person from the performance or observance of any
of
the agreements, covenants, terms or conditions contained in the Permitted Notes
or the Permitted Note Issuance Indenture or any document or instrument relating
thereto by operation of law or otherwise; or
(iv) the
release in whole or in part of any collateral for any or all Guaranteed
Obligations or for any Permitted Notes or the Permitted Note Issuance
Indenture.
(c) Except
as
otherwise specifically provided in this Limited Guarantee, the Guarantor hereby
expressly and irrevocably waives all defenses in an action brought by the
Permitted Note Issuance Trustee to enforce this Limited Guarantee based on
claims of waiver, release, surrender, alteration or compromise and all setoffs,
reductions, or impairments, whether arising hereunder or otherwise.
B-4
(d) The
Permitted Note Issuance Trustee may deal with USF and Affiliates of USF in
the
same manner and as freely as if this Limited Guarantee did not exist and shall
be entitled, among other things, to grant USF or any other Person such extension
or extensions of time to perform any act or acts as may be deemed advisable
by
the Permitted Note Issuance Trustee, at any time and from time to time, without
terminating, affecting or impairing the validity of this Limited Guarantee
or
the obligations of the Guarantor hereunder.
(e) No
compromise, alteration, amendment, modification, extension, renewal, release
or
other change of, or waiver, consent, delay, omission, failure to act or other
action with respect to, any liability or obligation under or with respect to,
or
of any of the terms, covenants or conditions of the Permitted Notes, the
Permitted Note Issuance Indenture or any document or instrument relating thereto
or any amendment, modification or other change of any legal requirement shall
in
any way alter, impair or affect any of the obligations of the Guarantor
hereunder, and the Guarantor agrees that if the Permitted Note Issuance
Indenture or any document or instrument relating thereto is modified, the
Guaranteed Obligations shall automatically be deemed modified to include such
modifications.
(f) The
Permitted Note Issuance Trustee may proceed to protect and enforce any or all
of
its rights under this Limited Guarantee by suit in equity or action at law,
whether for the specific performance of any covenants or agreements contained
in
this Limited Guarantee or otherwise, or to take any action authorized or
permitted under applicable law, and shall be entitled to require and enforce
the
performance of all acts and things required to be performed hereunder by the
Guarantor. Each and every remedy of the Permitted Note Issuance Trustee shall,
to the extent permitted by law, be cumulative and shall be in addition to any
other remedy given hereunder or now or hereafter existing at law or in equity.
(g) No
waiver
shall be deemed to have been made by the Permitted Note Issuance Trustee of
any
rights hereunder unless the same shall be in writing and signed by the Permitted
Note Issuance Trustee, and any such waiver shall be a waiver only with respect
to the specific matter involved and shall in no way impair the rights of the
Permitted Note Issuance Trustee or the obligations of the Guarantor to the
Permitted Note Issuance Trustee in any other respect or at any other
time.
(h) At
the
option of the Permitted Note Issuance Trustee, the Guarantor may be joined
in
any action or proceeding commenced by the Permitted Note Issuance Trustee
against USF or any other Person in connection with or based upon any Permitted
Notes, the Permitted Note Issuance Indenture or any document or instrument
relating thereto and recovery may be had against the Guarantor in such action
or
proceeding or in any independent action or proceeding against the Guarantor
to
the extent of the Guarantor’s liability hereunder, without any requirement that
the Permitted Note Issuance Trustee first assert, prosecute or exhaust any
remedy or claim against USF or any other Person, or any security for the
obligations of any USF or any other Person.
(i) The
Guarantor agrees that this Limited Guarantee shall continue to be effective
or
shall be reinstated, as the case may be, if at any time any payment is made
by
or on behalf of the Guarantor to or on behalf of the Permitted Note Issuance
Trustee and such payment is rescinded or must otherwise be returned by the
Permitted Note Issuance Trustee or its creditors
B-5
(j) In
the
event that the Guarantor shall advance or become obligated to pay any sums
under
this Limited Guarantee or in connection with the Guaranteed Obligations or
in
the event that for any reason whatsoever USF, or any Affiliate of USF is now,
or
shall hereafter become, indebted to the Guarantor, the Guarantor agrees that
(i)
the amount of such sums and of such Indebtedness and all interest thereon shall
at all times be subordinate as to the Lien, the time of payment and in all
other
respects to all sums, including principal and interest and other amounts, at
any
time owed to the Permitted Note Issuance Trustee under the Permitted Note
Issuance Indenture by USF, and (ii) the Guarantor shall not be entitled to
enforce or receive payment thereof until all principal, interest and other
sums
due pursuant to all Permitted Notes, the Permitted Note Issuance Indenture
or
any document or instrument relating thereto have been paid in full. Nothing
herein contained is intended or shall be construed to give the Guarantor any
right of subrogation in or under the Permitted Notes or the Permitted Note
Issuance Indenture or any right to participate in any way therein, or in the
right, title or interest of the Permitted Note Issuance Trustee in or to any
collateral securing the Permitted Notes, notwithstanding any payments made
by
the Guarantor under this Limited Guarantee, until the actual and irrevocable
receipt by each the Permitted Note Issuance Trustee in full of all principal,
interest and other sums due with respect to the Permitted Notes or otherwise
payable under the Permitted Note Issuance Indenture. If any amount shall be
paid
to the Guarantor on account of such subrogation rights at any time when any
such
sums due and owing to the Permitted Note Issuance Trustee shall not have been
fully paid, such amount shall be paid by the Guarantor to the Permitted Note
Issuance Trustee for credit and application against such sums due and owing
to
the Permitted Note Issuance Trustee.
Section
6. Amendments.
The
terms of this Limited Guarantee shall not be waived, altered, modified, amended,
supplemented or terminated in any manner whatsoever except upon (i) execution
of
a written instrument by the Permitted Note Issuance Trustee and the Guarantor
and (ii) the satisfaction of the Permitted Note Issuance Rating Agency Condition
with respect thereto.
Section
7. Successors
and Assigns.
This
Limited Guarantee shall be binding upon the Guarantor, and the Guarantor’s
respective estate, heirs, personal representatives, successors and assigns,
may
not be assigned or delegated by the Guarantor and shall inure to the benefit
of
the Permitted Note Issuance Trustee and its successors and assigns.
Section
8. Applicable
Law and Consent to Jurisdiction.
(a)
THIS
LIMITED GUARANTEE SHALL BE GOVERNED BY, AND CONSTRUED AND INTERPRETED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
(b) The
Permitted Note Issuance Trustee may enforce any claim arising out of this
Limited Guarantee in any state or federal court having subject matter
jurisdiction and located in New York, New York. For the purpose of any action
or
proceeding instituted with respect to
B-6
Section
9. Section
Headings.
The
headings of the sections and paragraphs of this Limited Guarantee have been
inserted for convenience of reference only and shall in no way define, modify,
limit or amplify any of the terms or provisions hereof.
Section
10. Severability.
Any
provision of this Limited Guarantee which may be determined by any competent
authority to be prohibited or unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof, and
any
such prohibition or unenforceability in any jurisdiction shall not invalidate
or
render unenforceable such provision in any other jurisdiction. To the extent
permitted by applicable law, the Guarantor hereby waives any provision of law
which renders any provision hereof prohibited or unenforceable in any
respect.
Section
11. Waiver
of Trial by Jury.
EACH
PARTY HERETO HEREBY EXPRESSLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION
OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS LIMITED GUARANTEE
OR
ANY OTHER RELATED DOCUMENT TO WHICH IT IS A PARTY, OR UNDER ANY AMENDMENT,
INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNEC-TION THEREWITH OR ARISING FROM ANY RELATIONSHIP EXISTING
IN
CONNECTION WITH THIS LIMITED GUARANTEE OR ANY RELATED TRANSACTION, AND AGREES
THAT ANY SUCH ACTION OR PROCEEDING SHALL BE TRIED BEFORE A COURT AND NOT BEFORE
A JURY.
Section
12. Notices.
All
notices, requests or other communications desired or required to be given under
this Limited Guarantee shall be in writing and shall be sent by (a) certified
or
registered mail, return receipt requested, postage prepaid, (b) national prepaid
overnight delivery service, (c) telecopy or other facsimile transmission
(following with hard copies to be sent by national prepaid overnight delivery
service) or (d) personal delivery with receipt acknowledged in writing, as
follows:
(i) if
to the
Permitted Note Issuance Trustee:
B-7
[Permitted
Note Issuance Trustee]
[__________________]
[__________________]
Attention:
[__________________]
Facsimile:
[__________________]
(ii) if
to the
Guarantor:
c/o
U-Haul S Fleet, LLC
[__________________]
[__________________]
Attention:
[__________________]
Facsimile:
[__________________]
Any
of
the Persons in subclauses (i) or (ii) above may change its address for notices
hereunder by giving notice of such change to the other Persons. All notices
and
demands shall be deemed to have been given either at the time of the delivery
thereof to any officer or manager of the Person entitled to receive such notices
and demands at the address of such person for notices hereunder, or on the
third
day after the mailing thereof to such address, as the case may be..
Section
13. The
Guarantor’s Receipt of Permitted Note Issuance Indenture and Permitted Note
Issuance Related Documents.
The
Guarantor by its execution hereof acknowledges receipt of a true copy of the
Permitted Note Issuance Indenture. The Permitted Note Issuance Trustee hereby
agrees to provide the Guarantor with true copies of (i) any supplement to the
Permitted Note Issuance Indenture, (iii) any series supplement to the Permitted
Note Issuance Indenture creating series of Permitted Notes and (iii) each other
related Permitted Note Issuance Related Document, in each case promptly upon
execution thereof.
Section
14. Bankruptcy
Petition.
The
Guarantor hereby covenants and agrees that, prior to the date which is one
year
and one day after the payment in full of all Issuer Obligations and all
obligations of USF and each related Permitted Note Issuance SPV under any
Permitted Note Issuance Indenture, it will not institute against, or join any
other Person in instituting against, USF, any other Box Truck SPV, any Permitted
Note Issuance SPV or the Nominee Titleholder any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings or other similar proceeding
under the laws of the United States or any state of the United
States. The
provisions of this Section
14
shall
survive the termination of this Limited Guarantee.
Section
15. Counterparts. This
Limited Guarantee may be executed in any number of counterparts, each of which
when so executed shall be deemed to be an original, but all of such counterparts
shall together constitute but one and the same instrument.
B-8
IN
WITNESS WHEREOF, each of the parties hereto has executed this Limited Guarantee
as of the date first above written.
[BOX
TRUCK SPV], as Guarantor
By:
Name:
Title:
ACKNOWLEDGED
AND AGREED TO BY:
[PERMITTED
NOTE ISSUANCE TRUSTEE]
By:
Name:
Title: