2010 U-HAUL S FLEET, LLC, 2010 TM-1, LLC, 2010 DC-1, LLC, and 2010 TT-1, LLC, as Co-Issuers and U.S. BANK NATIONAL ASSOCIATION, as Trustee

TABLE OF CONTENTS
	Page
ARTICLE 1. DEFINITIONS, INCORPORATION BY REFERENCE AND CONSTRUCTION	1
Section 1.1. Definitions	1
Section 1.2. Cross-References	1
Section 1.3. Rules of Construction	1
Section 1.4. Other Definitional Provisions	2
ARTICLE 2. THE NOTES	2
Section 2.1. Joint and Several Obligations	2
Section 2.2. Designation and Terms of Notes	2
Section 2.3. Notes Issuable in Series	3
Section 2.4. Series Supplement For Each Series	4
Section 2.5. Execution and Authentication	5
Section 2.6. Registration of Transfer and Exchange of Notes	6
Section 2.7. Appointment of Paying Agent	7
Section 2.8. Noteholder List	9
Section 2.9. Persons Deemed Owners	9
Section 2.10. Replacement Notes	9
Section 2.11. Treasury Notes	10
Section 2.12. Temporary Notes	10
Section 2.13. Cancellation	11
Section 2.14. Principal and Interest	11
Section 2.15. Book-Entry Notes	12
Section 2.16. Definitive Notes	13
Section 2.17. Tax Treatment	13
ARTICLE 3. SECURITY	14
Section 3.1. Grant of Security Interest	14
Section 3.2. Certain Rights and Obligations of the Issuers Unaffected	17
Section 3.3. Performance of Collateral Agreements	17
Section 3.4. Release of Collateral	18
Section 3.5. Stamp, Other Similar Taxes and Filing Fees	18
ARTICLE 4. REPORTS	19
Section 4.1. Agreement of the Issuers to Provide Reports and Instructions	19
Section 4.2. Administrator	19
Section 4.3. Reports to Noteholders	19
Section 4.4. Annual Noteholders’ Tax Statement	19
Section 4.5. Rule 144A Information	20
ARTICLE 5. ALLOCATION AND APPLICATION OF COLLECTIONS	21
Section 5.1. Issuer Accounts	21
Section 5.2. Collections and Allocations	22

Section 5.3. Determination of Monthly Interest	Page   22
Section 5.4. Determination of Monthly Principal	22
Section 5.5. Misdirected Collections	22
ARTICLE 6. DISTRIBUTIONS	23
Section 6.1. Distributions in General	23
ARTICLE 7. REPRESENTATIONS AND WARRANTIES	23
Section 7.1. Existence and Power	23
Section 7.2. Limited Liability Company and Governmental Authorization	24
Section 7.3. Binding Effect	24
Section 7.4. Financial Information; Financial Condition	24
Section 7.5. Litigation	24
Section 7.6. No ERISA Plan	24
Section 7.7. Tax Filings and Expenses	24
Section 7.8. Disclosure	25
Section 7.9. Investment Company Act; Securities Act	25
Section 7.10. Regulations T, U and X	25
Section 7.11. No Consent	25
Section 7.12. Solvency	25
Section 7.13. Ownership of Membership Interests	25
Section 7.14. Security Interests	26
Section 7.15. Binding Effect of Collateral Agreements	27
Section 7.16. Non-Existence of Other Agreements	27
Section 7.17. Compliance with Contractual Obligations and Laws	27
Section 7.18. Eligible Box Trucks	27
Section 7.19. SPV Fleet Owner Agreement	27
Section 7.20. No Employees	27
Section 7.21. Environmental Matters	27
Section 7.22. Other Representations	28
ARTICLE 8. COVENANTS	28
Section 8.1. Payment of Notes	28
Section 8.2. Maintenance of Office or Agency	28
Section 8.3. Payment of Obligations	29
Section 8.4. Maintenance of Existence	29
Section 8.5. Compliance with Requirements of Law and Contractual Obligations	29
Section 8.6. Inspection of Property, Books and Records	29
Section 8.7. Compliance with Collateral Agreements	29
Section 8.8. Notice of Defaults	30
Section 8.9. Notice of Material Proceedings	30
Section 8.10. Further Requests	30
Section 8.11. Further Assurances	31
Section 8.12. Liens	32
Section 8.13. Other Indebtedness	32
Section 8.14. Mergers	32
Section 8.15. Sales of Collateral	32

Section 8.16. Acquisition of Assets	Page   32
Section 8.17. Distributions	33
Section 8.18. Name; Principal Office	33
Section 8.19. Organizational Documents	33
Section 8.20. Investments	33
Section 8.21. No Other Agreements	33
Section 8.22. Other Business	33
Section 8.23. Maintenance of Separate Existence	34
Section 8.24. Use of Proceeds of Notes	36
Section 8.25. No ERISA Plan	36
Section 8.26. No Employees	36
Section 8.27. Environmental	37
Section 8.28. SPV Fleet Owner Agreement	37
Section 8.29. Maintenance of the Box Trucks	37
Section 8.30. Entrance into a Permitted Note Issuance Indenture	37
Section 8.31. Box Truck SPV Permitted Note Limited Guarantees	37
ARTICLE 9. EVENTS OF DEFAULT	38
Section 9.1. Events of Default	38
Section 9.2. Acceleration of Maturity; Rescission and Annulment	39
Section 9.3. Collection of Indebtedness and Suits for Enforcement by the Trustee	40
Section 9.4. Remedies; Priorities	42
Section 9.5. Optional Preservation of the Collateral	43
Section 9.6. Limitation on Suits	43
Section 9.7. Unconditional Rights of Noteholders to Receive Principal and Interest	44
Section 9.8. Restoration of Rights and Remedies	44
Section 9.9. Rights and Remedies Cumulative	45
Section 9.10. Delay or Omission Not a Waiver	45
Section 9.11. Control by the Required Noteholders	45
Section 9.12. Waiver of Past Defaults	45
Section 9.13. Undertaking for Costs	46
Section 9.14. Waiver of Certain Rights	46
Section 9.15. Sale of Collateral	47
Section 9.16. Action on Notes	47
ARTICLE 10. RAPID AMORTIZATION EVENTS	47
Section 10.1. Rapid Amortization Events	47
ARTICLE 11. THE TRUSTEE	48
Section 11.1. Duties of the Trustee	48
Section 11.2. Rights of the Trustee	49
Section 11.3. Individual Rights of the Trustee	50
Section 11.4. Notice of Events of Default, Rapid Amortization Events, Defaults and Potential Rapid Amortization Events	50
Section 11.5. Compensation and Expenses	51
Section 11.6. Eligibility Disqualification	51
Section 11.7. Replacement of the Trustee	51

Section 11.8. Successor Trustee by Merger, etc.	Page   52
Section 11.9. Appointment of Co-Trustee or Separate Trustee	52
Section 11.10. Representations and Warranties of the Trustee	54
Section 11.11. Issuer Indemnification of the Trustee	54
ARTICLE 12. DISCHARGE OF INDENTURE	54
Section 12.1. Termination of the Issuers’ Obligations	55
Section 12.2. Application of Trust Money	55
Section 12.3. Repayment to the Issuers	56
Section 12.4. Reinstatement	56
ARTICLE 13. AMENDMENTS	56
Section 13.1. Without Consent of the Noteholders	56
Section 13.2. With Consent of the Noteholders	57
Section 13.3. Supplements	58
Section 13.4. Revocation and Effect of Consents	58
Section 13.5. Notation on or Exchange of Notes	58
Section 13.6. The Trustee to Sign Amendments, etc.	58
ARTICLE 14. MISCELLANEOUS	58
Section 14.1. Notices	58
Section 14.2. Communication by Noteholders With Other Noteholders	60
Section 14.3. Certificate and Opinion as to Conditions Precedent	60
Section 14.4. Statements Required in Certificate	61
Section 14.5. Rules by the Trustee	61
Section 14.6. Duplicate Originals	61
Section 14.7. Benefits of Indenture	61
Section 14.8. Payment on Business Day	61
Section 14.9. Governing Law	61
Section 14.10. No Adverse Interpretation of Other Agreements	61
Section 14.11. Successors	62
Section 14.12. Severability	62
Section 14.13. Counterpart Originals	62
Section 14.14. Table of Contents, Headings, etc.	62
Section 14.15. Termination; Collateral	62
Section 14.16. Release of an Issuer	62
Section 14.17. No Bankruptcy Petition	62
Section 14.18. No Recourse.	63
Section 14.19. Subordination.	63
Section 14.20. Waiver of Trial by Jury	64
Section 14.21. Submission to Jurisdiction	64
Section 14.22. Know Your Customer	64

 

Series shall be issued in the minimum denominations, if any, set forth in the applicable Series Supplement.

 

                   applicable Series Supplement with respect to the authentication and delivery of the new Series of Notes have been complied with;

 

and the date or dates from which interest shall accrue, (v) the method of allocating Collections with respect to such Series and the method by which the principal amount of Notes of such Series shall amortize or accrete, (vi) the names of any Series Accounts to be used by such Series and the terms governing the operation of any such accounts, (vii) the name of the Clearing Agency, if any, or Foreign Clearing Agency, if any, (viii) the terms on which the Notes of such Series may be redeemed, repurchased or remarketed to other investors, (ix) whether the Notes of such Series will be issued in multiple Classes and, if so, the rights and priorities of each such Class, and (x) any other relevant terms of such Series of Notes that do not conflict with the provisions of this 2010-1 Base Indenture (all such terms, the “Principal Terms” of such Series).< /div>

 

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 2010-1 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 2010-1 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 2010-1 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

 

(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

 

 

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 Sup plement) 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 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 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 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 100 Wall Street, Suite 1600, New York, New York 10005, as its office for such purposes.  The Registrar shall give prompt written notice to the Trustee, the Issuers 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 the Noteholder, in the name of the designated transferee or transferees, one or more new Notes, in any authorized denominations, of the same Class and a like aggregate principal amount.

 

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,

 

 

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 Holder’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 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 2010-1 Base Indenture or the applicable Series Supplement.  The Trustee may revoke such power and remove the Paying Agent, if the Trustee deter mines in its sole discretion that the Paying Agent shall have failed to

 

 

 

(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.

 

(c) Subject to 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 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 or such Foreign Clearing Agency with respect to such t rust 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

 

 

 

Section 2.8. Noteholder List.  The Trustee will furnish or cause to be furnished by the Registrar to any Issuer or the Paying Agent, within five (5) Business Days after receipt by the Trustee of a request therefor from such Issuer or the Paying Agent, respectively, in writing, a list in such form as such Issuer or the Paying Agent may reasonably require, of the names and addresses of the Noteholders as of the most recent Record Date for payments, notices or other correspondence to such Noteholders.  Unless otherwise provided in the applicable Series Supplement, Holder s 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.  Ever y 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 the Trustee may reasonably require of the names and addresses of the Noteholders, which for Book-Entry Notes shall mean the Clearing Agency or Foreign Clearing Agency, as applicable.

 

Section 2.9. Persons Deemed Owners.  Prior to due presentation of a Note for registration of transfer, the Trustee, the Paying Agent 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 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 such security or indemnity as may be required by the Trustee to hold the Issuers and the Trustee harmless then, in the absence of notice to the

 

 

 

(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.

 

(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 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.  Abse nt 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

 

 

 

(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 principa l 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. 0; 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.

 

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, cease to be payable to the Persons who were Noteholders of such Series at the applicable Record Date and the Issuers shall pay the defaulted interest in any lawful manner, plus, to the extent lawful, interest payable on the

 

 

 

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 applicab le 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 and the Trustee may deal with the Clearing Agency or the Foreign Clearing Agency and the applicable Clearing Agency Participants for all purposes of the Indenture (including the making of payments on the Notes and the giving of instructions or directions hereunder) as the authorized representatives of the Note Owners;

 

(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) 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 aggregate principal amount of the Outstanding 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) 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

 

 

 

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 and during the continuance of an Event of Defaul t, 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 Agency, accompanied by registration instructions from the applicable Clearing Agency or Foreign Clearing Agency for registration, each Issuer shall execute and the Trustee shall authenticate and (if the Registrar is different than the Trustee, then the Registra r shall) deliver the Definitive Notes in accordance with the instructions of the Clearing Agency.  Neither the Issuers nor the Trustee shall be liable for any delay in delivery of such instructions and may conclusively rely on, and shall be protected in relying on, such instructions.  Upon the issuance of Definitive Notes of such Series all references herein to obligations imposed upon or to be performed by the applicable Clearing Agency or Foreign Clearing Agency shall be deemed to be imposed upon and performed by the Trustee, to the extent applicable with respect to such Definitive Notes, and the Trustee shall recognize the Holders of the Definitive Notes of such Series as Noteholders of such Series hereunder.

 

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 federal income 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) as indebtedness of the Issuers for all purposes, including for purposes of fe deral, state and local and income or franchise taxes.  Each Note Owner 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 all purposes.

 

 

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 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, 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 USF (but not its obligations) against any party under or with respect to the Collateral Agreements (whether arising pursuant to the terms of such Collateral Agreements or otherwise available to USF at law or in equity), the right to enforce any of such Collateral Agreements and to give or withhold any and all con sents, requests, notices, directions, approvals, extensions or waivers under or with respect to such Collateral Agreements or the obligations of any party thereunder;

 

(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 monies 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”):

 

(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 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 Flee t 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,

 

 

 

(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;

 

(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 2010-1 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 2010-1 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 P arties 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

 

 

 

(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 UCC jurisdiction any like initial UCC financing statements or amendments thereto if filed prior to the date hereof.  The Trustee shall have no obligation to file or cause to be filed any UCC financing statement or continuation statement unless it is directed to do so by an Issuer or the Required Noteholders and it is provided with the UCC financing statement in form for filing.

 

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 Indent ure 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.  During the continuance of any 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

 

 

 

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 2010-1 Base Indenture, and the Trustee shall execute such documents and instruments and take any other actions as such Box Truck SPV may reasonably req uest (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 there is no Note Outstanding and no other Issuer Obligations owed to any Person, 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 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

 

 

 

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 the Rating Agency 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 Rating Agency and the Paying Agent, an Officer’s Certificate of each of the Issuers containing the information required by Exhibit A to this 2010-1 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 the Rating Agency, 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, written instructions to make withdrawals and payments from the Box Truck Collection Account, the Box Truck Purchase Account and any Series Accounts 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 Agency, 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 2011, 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 prior calendar year or the applicable portion thereof dur ing which such Person was a Noteholder, together with such other

 

 

 

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.

 

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 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 remain uninvested.  USF shall not direct the disposal of any Permitted Investments prior to the maturity thereof to the extent su ch 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 cause the Box Truck Purchase Account to be moved to a Qualified Institution or a Qualified Trust Institution and cause the de positary 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 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

 

 

 

(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.  Until this 2010-1 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 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 2010-1 Base Indenture shall be immediately deposited in the Box Truck Collection Account and shall be applied as provided in the applicable Series Supplement.

 

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)

 

 

 

[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 r eleased 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 Payment Date 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 Payment 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.

 

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 appro vals required to carry on its business as now conducted and for purposes of the transactions contemplated by this 2010-1 Base Indenture and the other Related Documents,

 

 

 

Section 7.2. Limited Liability Company and Governmental Authorization.  The execution, delivery and performance by such Issuer of this 2010-1 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 2010-1 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 2010-1 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, sol ely 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 and the Rating Agency 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 arbitrator or any Governmental Authority that could materially adversely affect the financial position, results of operations, business, properties, performance, prospects or condition (financial or otherwise) of such Issuer or which could reasonably be expected to result in a Material Adverse Effect.

 

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 material 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 material 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

 

 

 

Section 7.8. Disclosure.  All certificates, reports, statements, documents and other information furnished to the Trustee by or on behalf of such Issuer pursuant to any provision of this 2010-1 Base Indenture or any Related Document, or in connection with or pursuant to any amendment or modification of, or waiver under, this 2010-1 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 (when taken together with all other information furnished to the Trustee prior thereto or contempor aneously 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 shall constitute a representation and warranty by such Issuer made on the date the same are furnished to the Trustee 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 2010-1 Base Indenture or any Series Supplement or other Related Document to which it is a party, or for the performance of the obligations of such Issuer hereunder or thereunder other than such consents, approvals, authorizations, registrations, declarations or filings as shall have been obtained by such Issuer prior to the Closing Date or as contemplated in Section 7.14.

 

Section 7.12. Solvency.  Both before and after giving effect to the transactions contemplated by this 2010-1 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,

 

 

 

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 acco unts under the applicable UCC.  The Box Truck SPV Membership Interests constitute general intangibles under the applicable UCC.  This 2010-1 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 may have been filed, recorded or made by such Issuer in favor of the Trustee on behalf of the Secured Parties in connection with this 2010-1 Base Indenture, and such Issuer has not authorized any such filing.

 

(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 2010 U-Haul S Fleet, LLC, in the case of USF, 2010 TM-1, LLC, in the case of TM Truck SPV, 2010 DC-1, LLC, in the case of DC Truck SPV, or 2010 TT-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.

 

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 2010-1 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.

 

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 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 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

 

 

 

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 2010-1 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.

 

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, at the Noteholders’ expense, 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 a s 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, hypot hecation, 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 Required Noteholders, 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 Required Noteholders, 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 Required Noteholders.

 

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 and the Rating Agency 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 and the Rating Agency written notice thereof.

 

Section 8.9. Notice of Material Proceedings.  Each Issuer shall, promptly upon becoming aware thereof, give, or cause to be given, to the Trustee and the Rating Agency 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 o therwise), 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 informed on a regular basis as reasonably requested by the Trustee regarding such litigation, arbitration or proceeding. The Trustee 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 and the Rating Agency such other information as, and in such form as, the Trustee or the Rating Agency 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 t he 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.  Each Issuer hereby authorizes the Trustee 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 2010-1 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 Lien has been perfected, be duly endorsed in a manner satisfactory to the Trustee and delivered to the Trustee promptly.

 

(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 Trustee 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, 2012, the Issuers shall furnish to the Trustee an Opinion of Counsel either stating that,

 

 

 

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.

 

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 lia bilities 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 Supp lement, (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.  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 (i) an Officer’s Certificate and an Opinion of Counsel confirming that all required filings have been made to continue the perfected interest of the Trustee on behalf of the Secured Parties in the Collateral in respect of the new location or new name of such Issuer and (ii) copies of all such required filings with the filing information duly noted thereon by the office in which such filings were made.

 

Section 8.19. Organizational Documents.  No Issuer shall amend its operating agreement unless, prior to such amendment, the 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, 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 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

 

 

 

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:

 

(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 affiliated or 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 two Managers who are Independent Managers;

 

(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 fo regoing 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

 

 

 

(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 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 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, t o 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 unaffiliated entity, including in connection with the calculation and allocation of any Operating Expenses and the purchase of any Boxes or Other Modifications;

 

(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 Snell & Wilmer 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, 2011, the Issuers will provide to the R ating Agency 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.

 

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 re placements 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; and

 

(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.

 

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 guara ntee (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

 

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 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 October 2021 Payment Date;

 

(c)           the Trustee for any reason ceases to have a valid and perfected first-priority security interest in the Collateral, subject, in the case of the Box Trucks, to Permitted Liens, 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, and (y) 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, has actual 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 to the Issuers or the Nominee Titleholder 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 or the Nominee Titleholder, as applicable, obtains knowledge thereof or (ii) there shall have been given, by registered or certified mail, to the Issuers or the Nominee Titleholder, as applicable, by the Trustee or to the Issuers or the Nominee Titleholder and the Trustee by Noteholders holding Notes evidencing at least 25% of the Aggregate Note Balance, a written notice specifying such

 

 

 

(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)           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;

 

(i)           any Issuer or the Nominee Titleholder is no longer an indirect wholly-owned subsidiary of UHI;

 

(j)           the occurrence of a Termination Event;

 

(k)           the occurrence of an Event of Bankruptcy with respect to any Issuer, the Nominee Titleholder or AMERCO;

 

(l)           an Aggregate Asset Amount Deficiency occurs on any Determination Date and continues for a period of more than five (5) consecutive Business Days;

 

(m)           (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 (m) 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

 

(n)           AMERCO at any time no longer owns or controls, directly or indirectly, greater than 50% of the voting stock of UHI.

 

Section 9.2. Acceleration of Maturity; Rescission and Annulment.  If an Event of Default referred to in clause (k) 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 the Indenture, shall immediately and without further act become due and payable.
60; If any other

 

 

 

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 Required Noteholders, 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, pay to it, for the benefit of the Holders of such Notes, the who le 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 and each of its agents and counsel.

 

In case the Issuers shall fail forthwith to pay such amounts upon such demand, the Trustee may or shall, at the direction of the Required Noteholders, 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 monies 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.

 

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

 

 

 

(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 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 monies or other property payable or deliverable on any such claims and to distribute all amounts received with respect to the claims of the Noteholders 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 or the Holders of the Notes 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.

 

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 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 any plan of reorganization, arrangement, adjustment or composition affecting the Notes or the rights of any Holder thereof or to authorize the Trustee to vote in respect of the claim of any Noteholder in any such

 

 

 

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 monies adjudged due.  In addition, the Trustee (subject to Section 9.5) may exercise the rights and remedies provided herein and those available to it under the Related Documents, including 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;

 

(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 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 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 Required Noteholders.  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 sufficienc y 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.

 

Section 9.5. Optional Preservation of the Collateral.  If the Notes have been declared to be due and payable under Section 9.2 following an Event of Default and such declaration and its consequences have not been rescinded and annulled, the Trustee may, but need not, elect to maintain possession of the Collateral.  It is the desire of the parties hereto and the Noteholders that there be at all times sufficient funds for the payment of principal of and interest on the Notes, and the Trustee shall take suc h desire into account when determining whether to maintain possession of the Collateral pursuant to this Section 9.5.  In determining whether to maintain possession of the Collateral, 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.  Nothing contained in this Section 9.5 shall be construed to require the Trustee to preserve the Collateral securing the Issuer Obligations if prohibited by applicable law or if the Trustee is authorized, directed or permitted to liquidate the Collateral pursuant to Section 9.4.

 

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; and

 

(e) no direction inconsistent with such written request has been given to the Trustee during such 60-day period by the Required Noteholders;

 

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 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 the direction of the group of Holders of Notes with the greatest amount of Notes; provided, however, that should the Trustee receive conflicting or inconsistent requests on indemnity from two or more groups of Holders holding an equal principal amount of Notes, the Trustee in its sole discretion may determine what action, if any, shall be taken, notwithstanding any other provisions of the Indenture.

 

Section 9.7. Unconditional Rights of Noteholders to Receive Principal and Interest.  Notwithstanding any other provisions in the Indenture, the Holder of any Note 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 in accordance with the terms of 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 rem edy.

 

Section 9.10. Delay or Omission Not a Waiver.  No delay or omission of the Trustee 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 or t he 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 Required Noteholders.  Notwithstanding any other provision of the Indenture or any other Related Document to the contrary, the Required Noteholders shall have the 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

 

(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 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 might materially adversely affect the rights of any Noteholders not consenting to such action.

 

Section 9.12. Waiver of Past Defaults.  An Event of Default shall continue unless and until waived by the Holders in accordance with this Section 9.12.  Prior to the declaration of the acceleration of the maturity of the Notes as provided in Section 9.2, the Required

 

 

 

Upon any such waiver, such Default or Event of Default shall cease to exist and be deemed to have been cured and not to have occurred, and any Event of Default arising from such Default 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 Agency.

 

Section 9.13. Undertaking for Costs.  All parties to the Indenture agree, and each Holder of any Note by such Holder’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 rea sonable attorneys’ fees, against any party litigant in such Proceeding, having due regard to the merits and good faith of the claims or defenses made by such party litigant; but the provisions of this Section 9.13 shall not apply to (a) any suit instituted by the Trustee, (b) any suit instituted by any Noteholder or group of Noteholders, in each case holding in the aggregate more than 10% of Aggregate Note Balance or (c) any suit instituted by any Noteholder for the enforcement of the payment of principal of or interest on any Note on or after the respective due dates expressed in such Note and in the Indenture.

 

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 a ny such law, and covenants that it will not hinder, delay or impede the execution of any power herein granted to the Trustee, 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

 

 

 

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 Agreement:

 

(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 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; and

 

(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 purchase money or be in any way answerable for any loss, misapplication or non-application thereof.

 

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) (i) during the period from and including the fourth (4th) Determination Date following the Effective Date and ending on and including the eleventh (11th) Determination following the Effective Date, the Twelve-Month DSCR as of two consecutive Determination Dates is less than 1.15 or (ii) beginning on the twelfth (12th) Determination Date following the Effective Date, the Twelve-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 may, or shall, at the direction of the Required Noteholders, by written notice to the Issuers, declare that a Rapid Amortization Even t 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 any Noteholder.  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 b e subject to waiver.

 

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.

 

(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 Paying Agent to pay funds hereunder, the Trustee shall have received from the Pa ying Agent any such funds previously advanced to the Paying Agent.

 

(f) Subject to Section 11.3, all monies 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

 

 

 

(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.

 

(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, 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.

 

(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 Required Noteholders.

 

(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 each Noteholder (if the Notes of such Noteholder are represented by a Global Note, by telephone and facsimile, and if such Notes are represented by Definitive Notes, by first class mail) and the Rating Agency with noti ce 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.  Except as may otherwise be expressly provided herein, the Issuers shall reimburse the Trustee promptly upon request for all reasonable disbu rsements, 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.

 

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 Moody’s 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 and the 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 Required Noteholders may remove the Trustee by so notifying the Trustee, the Issuers and the Rating Agency.  The Issuers shall remove the Trustee upon notice to the 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; provided, however that if an Event of Default has occurred and is continuing, only the Required Noteholders may designate and appoint any successor Trustee.

 

(c) If a successor Trustee 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.  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 2010-1 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 Merger, 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 and each Noteholder.

 

Section 11.9. Appointment of Co-Trustee or Separate Trustee.  (a) Notwithstanding any other provisions of this 2010-1 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 capa city and for the benefit of the Secured Parties, such title to the Collateral,

 

 

 

(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;

 

(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 singl y 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 2010-1 Base Indenture, any Series Supplement and any other Security Agreement, specifically including every provision of this 2010-1 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.

 

(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 2010-1 Base Indenture, any Series Supplement or any other Security Agreement on its behalf and in its name.  If any separate trustee or co-trustee

 

 

 

(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, delegate its duties under this 2010-1 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.

 

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 2010-1 Base Indenture, any Series Supplement issued concurrently with this 2010-1 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 2010-1 Base Indenture, any Series Supplement issued concurrently with this 2010-1 Base Indenture and each other Security Agreement and to authenticate the Notes;

 

(iii) This 2010-1 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 2010-1 Base Indenture or any Series Supplement, including but not limited to any judgment, award, settlement, reasonable attorneys’ fees and other costs or expenses reasonabl y 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 and the Issuers have paid all sums payable hereunder or under any Related Document.

 

(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; and

 

(iii) the Rating Agency Condition is satisfied.

 

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

 

 

 

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, at any time and from time to time, may 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 prop­erty 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

 

 

 

(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 such action shall not adversely affect in any material respect the interests of any Noteholders, as evidenced by an Officer’s Certificate delivered to the Trustee.  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 am endment to be made pursuant to this Section 13.1 to the Rating Agency.

 

Section 13.2. With Consent of the Noteholders.  Except as provided in Section 13.1, the provisions of this 2010-1 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 and the Required Noteholders.  In addition to the foregoing: