DEFINITIONS LIST
SCHEDULE
I TO BASE INDENTURE
DEFINITIONS
LIST
“Account
Control Agreement”
means
each of the Cargo Van/Pick-Up Truck Collection Account Control Agreement and
the
Cargo Van/Pick-Up Truck Purchase Account Control Agreement.
“Administration
Agreement”
means
the Administration Agreement, dated as of the Effective Date, by and among
UHI,
as administrator, each Cargo Van/Pick-Up Truck SPV, USF and the Trustee, as
amended, modified or supplemented from time to time in accordance with its
terms.
“Administrator”
means
UHI, in its capacity as administrator under the Administration Agreement, or
any
successor administrator thereunder.
“Administrator
Default”
is
defined in Section
4.3(a)
of the
Administration Agreement.
“Advance
Rate”
means,
as of any Determination Date, with respect to any Cargo Van or Pick-Up Truck,
the percentage set forth in the following table with respect to the Capitalized
Cost Discount Percentage for such Cargo Van or Pick-Up Truck:
|
CARGO
VANS
|
|
|
If
the Capitalized Cost Discount Percentage is:
|
Advance
Rate
|
|
Less
than or equal to 95.0%
|
94.0%
|
|
Greater
than 95.0% but less than or equal to 97.5%
|
92.0%
|
|
Greater
than 97.5% but less than or equal to 100.0%
|
90.0%
|
|
Greater
than 100.0% but less than or equal to 102.5%
|
88.0%
|
|
Greater
than 102.5% but less than or equal to 105.0%
|
86.0%
|
|
Greater
than 105.0% but less than or equal to 107.5%
|
84.0%
|
|
PICK-UP
TRUCKS
|
|
|
If
the Capitalized Cost Discount Percentage is:
|
Advance
Rate
|
|
Less
than or equal to 100.0%
|
90.0%
|
|
Greater
than 100.0% but less than or equal to 102.5%
|
88.0%
|
|
Greater
than 102.5% but less than or equal to 105.0%
|
86.0%
|
|
Greater
than 105.0% but less than or equal to 107.5%
|
84.0%
|
|
Greater
than 107.5% but less than or equal to 110.0%
|
82.0%
|
|
Greater
than 110.0% but less than or equal to 112.5%
|
80.0%
|
provided,
however
that if
the Capitalized Cost Discount Percentage with respect to such Cargo Van or
Pick-Up Truck is greater than 107.5%, in the case of a Cargo Van, or greater
than 112.5%
in
the
case of a Pick-Up Truck, the Advance Rate for such Cargo Van or Pick-Up Truck
will be a percentage (i) agreed to in writing by any Financial Insurance
Provider and (ii) with respect to which the Rating Agency Condition shall have
been satisfied, in each case prior to the acquisition of such Cargo Van or
Pick-Up Truck by any Cargo Van/Pick-Up Truck SPV;
provided further,
that if
the Capitalized Cost Discount Percentage with respect to any Cargo Van or
Pick-Up Truck cannot be determined because the trade-in value of a cargo van
or
pick-up truck of the same make and model as such Cargo Van or Pick-Up Truck
but
of the previous model year is not published in the most recently published
NADA
Guide, then the Advance Rate for such Cargo or Pick-Up Truck will equal the
Advance Rate for the applicable Reference Truck, less
the
Advance Rate Decrease, if any, with respect to such Cargo Van or Pick-Up Truck;
provided further
that on
any Determination Date on which the Aggregate Pick-Up Truck Asset Amount is
greater than the Maximum Pick-Up Truck Asset Amount, the Advance Rate for each
Pick-Up Truck shall be reduced (solely for such Determination Date) by
1.0%.
“Advance
Rate Decrease”
means,
with respect to any Cargo Van or Pick-Up Truck, the percentage set forth in
the
following table with respect to the Capitalized Cost Increase Percentage for
such Cargo Van or Pick-Up Truck:
|
If
the Capitalized Cost Increase Percentage is:
|
Advance
Rate
Decrease
|
|
Less
than or equal to 2.5%
|
2.0%
|
|
Greater
than 2.5% but less than or equal to 5.0%
|
4.0%
|
|
Greater
than 5.0% but less than or equal to 7.5%
|
6.0%
|
|
Greater
than 7.5% but less than or equal to 10.0%
|
8.0%
|
|
Greater
than 10.0% but less than or equal to 12.5%
|
10.0%
|
provided,
however
that if
the Capitalized Cost Increase Percentage with respect to such Cargo Van or
Pick-Up Truck is greater than 12.5%, the Advance Rate Decrease for such Cargo
Van or Pick-Up Truck will be a percentage (i) agreed to in writing by any
Financial Insurance Provider and (ii) with respect to which the Rating Agency
Condition shall have been satisfied, in each case prior to the acquisition
of
such Cargo Van or Pick-Up Truck by any Cargo Van/Pick-Up Truck SPV.
“Affiliate”
means,
with respect to any specified Person, another Person that directly, or
indirectly through one or more intermediaries, controls or is controlled by
or
is under common control with the Person specified. For purposes of this
definition, “control” means the power to direct the management and policies of a
Person, directly or indirectly, whether through ownership of voting securities,
by contract or otherwise; and “controlled” and “controlling” have meanings
correlative to the foregoing.
“Aggregate
Asset Amount”
means,
as of any Determination Date, an amount equal to the sum of (i) the Aggregate
Assumed Asset Value as of such Determination Date, (ii) all Disposition
Receivables as of the last day of the Related Monthly Period which were not
more
than three (3) days past the applicable Disposition Date and (iii) the amount
on
deposit in the Cargo Van/Pick-Up Truck Purchase Account as of the last day
of
the Related Monthly Period
2
(after
giving effect to all deposits into and withdrawals from the Cargo Van/Pick-Up
Truck Purchase Account on such day).
“Aggregate
Asset Amount Deficiency”
means,
as of any Determination Date, the amount, if any, by which the Aggregate Note
Balance on the Related Payment Date (after giving effect to all payments to
be
made on such Payment Date) will exceed the Aggregate Asset Amount as of such
Determination Date.
“Aggregate
Assumed Asset Value”
means,
as of any Determination Date, the sum of the Assumed Asset Values as of such
Determination Date for all Funded Trucks that were Eligible Trucks as of the
last day of the Related Monthly Period.
“Aggregate
Note Balance”
means,
with respect to any Series of Notes Outstanding, the amount specified in the
applicable Series Supplement.
“Aggregate
Pick-Up Truck Asset Amount”
means,
as of any Determination Date, the sum of the Assumed Asset Values as of such
Determination Date for all Pick-Up Trucks that were Eligible Trucks as of the
last day of the Related Monthly Period.
“AMERCO”
means
AMERCO, a Nevada corporation, and its permitted successors.
“Annual
Noteholders’ Tax Statement”
is
defined in Section
4.4
of the
Base Indenture.
“Applicants”
is
defined in Section
2.8
of the
Base Indenture.
“Assumed
Asset Value”
means,
with respect to any Cargo Van or Pick-Up Truck as of any Determination Date,
the
excess of (i) the Assumed Asset Value of such Cargo Van or Pick-Up Truck as
of
the immediately preceding Determination Date (or, in the case of the
Determination Date in the first full Monthly Period occurring after the
In-Service Date with respect to such Cargo Van or Pick-Up Truck, the Capitalized
Cost of such Cargo Van or Pick-Up Truck) over (ii) the product of (x) the
Seasonal Depreciation Percentage for a Cargo Van or Pick-Up Truck, as
applicable, for the Related Monthly Period and (y) the Capitalized Cost of
such
Cargo Van or Pick-Up Truck; provided
that the
Assumed Asset Value on any Determination Date for any Cargo Van or Pick-Up
Truck
that has suffered a Casualty on or prior to the last day of the Related Monthly
Period will be zero.
“Assumed
Asset Value Schedule”
means
Exhibit
C
to the
SPV Fleet Owner Agreement setting forth the Seasonal Depreciation Percentages
with respect to the Cargo Vans and Pick-Up Trucks.
“Authorized
Officer”
means
(a) with respect to USF, any Cargo
Van/Pick-Up Truck
SPV, RTAC or the Nominee Titleholder, any Manager, the President, any Vice
President, the Secretary, the Treasurer, any Assistant Secretary or any
Assistant Treasurer of such Person, (b) with respect to UHI, the President,
any
Vice President, the Secretary, the Treasurer, any Assistant Secretary, or any
Assistant Treasurer of UHI and (c) with respect to any Financial Insurance
Provider, any Managing Director or Vice President thereof responsible for the
administration of the Notes.
3
“Bankruptcy
Code”
means
The Bankruptcy Reform Act of 1978, as amended from time to time, and as codified
as 11 U.S.C. Section 101 et seq.
“Base
Indenture”
means
the 2007-1 Cargo Van/Pick-Up Truck Base Indenture, dated as of the Effective
Date, among USF, Cargo Van SPV and Pick-Up Truck SPV, as co-issuers, and the
Trustee, as amended, modified or supplemented from time to time in accordance
with its terms, exclusive of Series Supplements creating new Series of
Notes.
“Book-Entry
Notes”
means
beneficial interests in the Notes, ownership and transfers of which shall be
evidenced or made through book entries by a Clearing Agency or a Foreign
Clearing Agency as described in Section
2.15
of the
Base Indenture; provided
that
after the occurrence of a condition whereupon book-entry registration and
transfer are no longer permitted and Definitive Notes are issued to the Note
Owners, such Definitive Notes shall replace Book-Entry Notes.
“Business
Day”
means
any day other than a Saturday, Sunday or other day on which banks are authorized
or required by law to be closed in New York City, New York, Chicago, Illinois,
St. Xxxx, Minnesota or Phoenix, Arizona.
“Calculation
Date”
means,
with respect to any calculation of the Six-Month DSCR or the One-Month DSCR
on
any Determination Date, the last day of the Related Monthly Period.
“Canadian
Truck”
means
any Cargo Van or Pick-Up Truck which has been designated by the Fleet Manager
for use in the System in Canada.
“Capitalized
Cost”
means,
with respect to any Cargo Van or Pick-Up Truck, the original aggregate price
paid for such Cargo Van or Pick-Up Truck, including, without duplication, the
price paid for all other components thereof, by the applicable Cargo Van/Pick-Up
Truck SPV (or, with respect to any Cargo Van or Pick-Up Truck contributed on
the
Effective Date pursuant to the Sale and Contribution Agreements, by XXXX) to
the
entities selling such Cargo Van or Pick-Up Truck or any component thereof to
such Cargo Van/Pick-Up Truck SPV(or, with respect to any Cargo Van or Pick-Up
Truck contributed on the Effective Date pursuant to the Sale and Contribution
Agreements, to XXXX), including delivery charges but excluding taxes and any
registration or titling fees.
“Capitalized
Cost Discount Percentage”
means,
with respect to any Cargo Van or Pick-Up Truck, a fraction, expressed as a
percentage, (i) the numerator of which is equal to the Capitalized Cost of
such
Cargo Van or Pick-Up Truck and (ii) the denominator of which is equal to the
trade-in value as specified in the most recently published NADA Guide of a
cargo
van or pick-up truck of the same make and model as such Cargo Van or Pick-Up
Truck but of the previous model year.
“Capitalized
Cost Increase Percentage”
means,
with respect to any Cargo Van or Pick-Up Truck, a fraction, expressed as a
percentage, (i) the numerator of which is equal to the excess, if any, of (x)
the Capitalized Cost of such Cargo Van or Pick-Up Truck over (y) the Capitalized
Cost of the applicable Reference Truck and (ii) the denominator of which is
equal to the Capitalized Cost of such Reference Truck.
4
“Cargo
Van”
means
a
cargo van owned by Cargo Van SPV.
“Cargo
Van/Pick-Up Truck Collection Account”
means
securities account no. 113000001 entitled “U.S. Bank National Association, as
Trustee under the Base Indenture” maintained by the Cargo Van/Pick-Up Truck
Collection Account Securities Intermediary pursuant to the Cargo
Van/Pick-Up
Truck
Collection Account Control Agreement or any successor securities account
maintained pursuant to the Cargo Van/Pick-Up Truck Collection Account Control
Agreement.
“Cargo
Van/Pick-Up Truck Collection Account Control Agreement”
means
the agreement among USF, each Cargo Van/Pick-Up Truck SPV, U.S. Bank National
Association, as securities intermediary, and the Trustee, dated as of the
Effective Date, relating to the Cargo Van/Pick-Up Truck Collection Account,
as
the same may be amended and supplemented from time to time.
“Cargo
Van/Pick-Up Truck Collection Account Securities Intermediary”
means
U.S. Bank National Association or any other securities intermediary that
maintains the Cargo Van/Pick-Up Truck Collection Account pursuant to the Cargo
Van/Pick-Up Truck Collection Account Control Agreement.
“Cargo
Van/Pick-Up Truck Purchase Account”
means
securities account no. 113000006 entitled “U.S. Bank National Association, as
Trustee under the Base Indenture” maintained by the Cargo Van/Pick-Up Truck
Purchase Account Securities Intermediary pursuant to the Cargo Van/Pick-Up
Truck
Purchase Account Control Agreement or any successor securities account
maintained pursuant to the Cargo Van/Pick-Up Truck Purchase Account Control
Agreement.
“Cargo
Van/Pick-Up Truck Purchase Account Control Agreement”
means
the agreement among USF, each Cargo Van/Pick-Up Truck SPV, U.S. Bank National
Association, as securities intermediary, and the Trustee, dated as of the
Effective Date, relating to the Cargo Van/Pick-Up Truck Purchase Account, as
the
same may be amended and supplemented from time to time.
“Cargo
Van/Pick-Up Truck Purchase Account Securities Intermediary”
means
U.S. Bank National Association or any other securities intermediary that
maintains the Cargo Van/Pick-Up Truck Purchase Account pursuant to the Cargo
Van/Pick-Up Truck Purchase Account Control Agreement.
“Cargo
Van/Pick-Up Truck SPV”
means
each of Cargo Van SPV and Pick-Up Truck SPV.
“Cargo
Van/Pick-Up Truck SPV Collateral”
is
defined in Section
3.1(b)
of the
Base Indenture.
“Cargo
Van/Pick-Up Truck SPV Gross Rental Fees”
means,
with respect to any Cargo Van or Pick-Up Truck, the gross rental fees paid
by
customers, excluding (a) any sales or transactional tax and (b) the Safemove
Fees, in each case generated by the rental of such Cargo Van or Pick-Up Truck
through the System.
“Cargo
Van/Pick-Up Truck SPV Limited Liability Company Agreement”
means,
with respect to any Cargo Van/Pick-Up Truck SPV, the Operating Agreement of
such
Cargo
5
“Cargo
Van/Pick-Up Truck SPV Membership Interests”
means
all of the issued and outstanding membership interests in each of the Cargo
Van/Pick-Up Truck SPVs.
“Cargo
Van/Pick-Up Truck SPV Permitted Note Limited Guarantee”
is
defined in Section
8.31
of the
Base Indenture.
“Cargo
Van SPV”
means
2007 BE-1, LLC, a Nevada limited liability company, and its permitted
successors.
“Casualty”
means,
with respect to any Cargo Van or Pick-Up Truck as of any date of determination,
that (i) such Cargo Van or Pick-Up Truck is destroyed, seized, confiscated
or
otherwise rendered permanently unfit or unavailable for use as of such date,
(ii) such Cargo Van or Pick-Up Truck has otherwise been missing for ninety
(90)
days or more or (iii) if the Six-Month DSCR, if any, as of the most recent
Determination Date is less than 1.25, such Cargo Van or Pick-Up Truck has
otherwise been missing for sixty (60) days or more.
“Cede”
means
Cede & Co., a nominee of DTC.
“Certificate
of Title”
means,
with respect to each Cargo Van or Pick-Up Truck, the certificate of title
applicable to such Cargo Van or Pick-Up Truck duly issued in accordance with
the
certificate of title act or other similar law of the jurisdiction applicable
to
such Cargo Van or Pick-Up Truck.
“Class”
means,
with respect to any Series of Notes, any one of the classes of Notes of that
Series as specified in the applicable Series Supplement.
“Clearing
Agency”
means
an organization registered as a “clearing agency” pursuant to Section 17A of the
Exchange Act or any successor provision thereto.
“Clearing
Agency Participant”
means
a
broker, dealer, bank, other financial institution or other Person for whom
from
time to time a Clearing Agency effects book-entry transfers and pledges of
securities deposited with the Clearing Agency.
“Clearstream”
means
Clearstream Banking, société anonyme.
“Closing
Date”
means,
with respect to any Series of Notes, the date of issuance of such Series of
Notes, as specified in the applicable Series Supplement.
“Code”
means
the Internal Revenue Code of 1986, as amended, reformed or otherwise modified
from time to time, and any successor statute of similar import, in each case
as
in effect from time to time. References to sections of the Code also refer
to
any successor sections.
“Collateral”
means,
collectively, the USF Collateral and the Cargo Van/Pick-Up Truck SPV
Collateral.
6
“Collateral
Agreements”
means
the SPV Fleet Owner Agreement, each Cargo Van/Pick-Up Truck SPV Limited
Liability Company Agreement, the Administration Agreement, the Nominee
Titleholder Agreement, each Sale and Contribution Agreement, any Hedge Agreement
and any Enhancement Agreement (other than the Policy) and any other agreement,
document or instrument relating to the formation, business, operations or
administration of any Cargo Van/Pick-Up Truck SPV.
“Collections”
means
the Proceeds of the Collateral, including the following: (i) all payments under
the SPV Fleet Owner Agreement, including, all Weekly Fleet Owner Payments,
Monthly Fleet Owner Payments and Monthly Advances, (ii) all Disposition
Proceeds, and all warranty payments and the proceeds of damage claims, which
the
Fleet Manager is required to deposit into the Cargo Van Pick-Up Truck Payment
Account or the Cargo Van/Pick-Up Truck Collection Account, whether such payments
are in the form of cash, checks, wire transfers or other forms of payment and
(iii) all Investment Income.
“Commonly
Controlled Entity”
means
an entity, whether or not incorporated, that is under common control with any
Issuer within the meaning of Section 4001 of ERISA or is part of a group that
includes any Issuer and that is treated as a single employer under Section
414
of the Code.
“Company
Order”
and
“Company
Request”
means
a
written order or request signed in the name of each Issuer by any one of its
Authorized Officers and delivered to the Trustee.
“Contingent
Obligation”,
as
applied to any Person, means any direct or indirect liability, contingent or
otherwise, of that Person (a) with respect to any indebtedness, lease, dividend,
letter of credit or other obligation of another if the primary purpose or intent
thereof by the Person incurring the Contingent Obligation is to provide
assurance to the obligee of such obligation of another that such obligation
of
another will be paid or discharged, or that any agreements relating thereto
will
be complied with, or that the holders of such obligation will be protected
(in
whole or in part) against loss in respect thereof or (b) under any letter of
credit issued for the account of that Person or for which that Person is
otherwise liable for reimbursement thereof. Contingent Obligation shall include
(a) the direct or indirect guarantee, endorsement (otherwise than for collection
or deposit in the ordinary course of business), co-making, discounting with
recourse or sale with recourse by such Person of the obligation of another
and
(b) any liability of such Person for the obligations of another through any
agreement (contingent or otherwise) (i) to purchase, repurchase or otherwise
acquire such obligation or any security therefor, or to provide funds for the
payment or discharge of such obligation (whether in the form of loans, advances,
stock purchases, capital contributions or otherwise), (ii) to maintain the
solvency of any balance sheet item, level of income or financial condition
of
another or (iii) to make take-or-pay or similar payments if required regardless
of non-performance by any other party or parties to an agreement, if in the
case
of any agreement described under subclause
(i)
or
(ii)
of this
sentence the primary purpose or intent thereof is as described in the preceding
sentence. The amount of any Contingent Obligation shall be equal to the amount
of the obligation so guaranteed or otherwise supported.
“Contractual
Obligation”
means,
with respect to any Person, any provision of any security issued by that Person
or of any indenture, mortgage, deed of trust, contract,
undertaking,
7
“Controlled
Group”
means,
with respect to any Person, such Person, whether or not incorporated, and any
corporation, trade or business that is, along with such Person, a member of
a
controlled group of corporations or a controlled group of trades or businesses
as described in Sections 414(b) and (c), respectively, of the Code.
“Controlling
Party”
is
defined, with respect to any Series of Notes, in the applicable Series
Supplement.
“Corporate
Trust Office”
means
the office of the Trustee at which at any particular time the Trustee’s
obligations under the Indenture shall be administered, which office at the
date
of the execution of the Base Indenture is located at 000 Xxxxx XxXxxxx Xxxxxx,
0xx
Xxxxx,
Xxxxxxx, Xxxxxxxx 00000-0000, Attention: U-Haul 2007-1, or at any other time
at
such other address as the Trustee may designate from time to time by notice
to
the Noteholders, any Financial Insurance Provider and the Issuers.
“Dealer
Agreement”
means
each contract between a Rental Company and an independently-owned Rental Dealer
pursuant to which the Rental Company agrees to make trucks, trailers and other
rental equipment available to such Rental Dealer and the Rental Dealer agrees
to
act as agent of the Rental Company and make such rental equipment available
to
rental customers.
“Default”
means
any occurrence or event which, with the giving of notice, the passage of time
or
both, would constitute an Event of Default.
“Definitions
List”
means
this Definitions List, as amended or modified from time to time.
“Definitive
Notes”
is
defined in Section
2.15
of the
Base Indenture.
“Depository”
is
defined in Section
2.15(a)
of the
Base Indenture.
“Determination
Date”
means,
with respect to any Payment Date, the Monthly Fleet Owner Payment Date
immediately preceding such Payment Date.
“Discounted
Aggregate Asset Amount”
means,
as of any Determination Date, the sum of (i) the sum of the Discounted Asset
Values as of such Determination Date for all Funded Trucks that were Eligible
Trucks as of the last day of the Related Monthly Period, (ii) all Disposition
Receivables as of the last day of the Related Monthly Period which were not
more
than three (3) days past the applicable Disposition Date and (iii) the amount
on
deposit in the Cargo Van/Pick-Up Truck Purchase Account as of the last day
of
the Related Monthly Period (after giving effect to all deposits into and
withdrawals from the Cargo Van/Pick-Up Truck Purchase Account on such
day).
“Discounted
Asset Value”
means,
with respect to any Cargo Van or Pick-Up Truck as of any Determination Date,
the
product of (i) the Advance Rate for such Cargo Van or Pick-Up
8
“Disposition
Date”
means,
with respect to a Cargo Van or Pick-Up Truck, the date on which such Cargo
Van
or Pick-Up Truck is sold or otherwise disposed of by or on behalf of the
applicable Cargo Van/Pick-Up Truck SPV.
“Disposition
Proceeds”
means
the proceeds, net of any direct selling expenses and any accrued and unpaid
Operating Expenses relating to such Cargo Van or Pick-Up Truck, from the sale
or
disposition of a Cargo Van or Pick-Up Truck.
“Disposition
Proceeds Collection Account Amount”
means,
with respect to the sale or disposition of any Cargo Van or Pick-Up Truck,
an
amount equal to the excess of (i) the related Disposition Proceeds over (ii)
the
related Disposition Proceeds Purchase Account Amount.
“Disposition
Proceeds Purchase Account Amount”
means,
with respect to the sale or disposition of any Cargo Van or Pick-Up Truck,
an
amount of the related Disposition Proceeds equal to the Discounted Asset Value
of such Cargo Van or Pick-Up Truck on the Determination Date in the Monthly
Period succeeding the Monthly Period in which such Cargo Van or Pick-Up Truck
is
sold or otherwise disposed.
“Disposition
Receivables”
means
all amounts receivable by a Cargo Van/Pick-Up Truck SPV or the Fleet Manager,
on
behalf of a Cargo Van/Pick-Up Truck SPV, in connection with the auction, sale
or
other disposition of a Cargo Van or Pick-Up Truck.
“Dollar”
and
the
symbol “$”
mean
the lawful currency of the United States.
“DSCR
Interest Amount”
means,
as of any Determination Date, the product of (i) one-twelfth of the Note Rate
(or, in the case of the initial Determination Date following the Effective
Date,
the product of (1) one-twelfth of the Note Rate and (2) one plus a fraction,
the
numerator of which is 24 and the denominator of which is 30), and (ii) the
sum
of (x) for all Cargo Vans and Pick-Up Trucks that were subject to the SPV Fleet
Owner Agreement as of the Calculation Date, the aggregate Discounted Asset
Value
of such Cargo Vans and Pick-Up Trucks as of the immediately preceding
Determination Date (or, in the case of the initial Determination Date, as of
the
Effective Date or, in the case of any Cargo Van or Pick-Up Truck that became
a
Funded Truck after the Effective Date but prior to the initial Determination
Date, as of the applicable Funding Date) and (y) any Targeted Note Balance
Shortfall as of the immediately preceding Determination Date (which, for the
purposes of the initial Determination Date, shall equal zero).
"DSCR Premium” means, as of any Determination Date, the product of (i)
one-twelfth of the Premium Rate with respect to the Notes as of the immediately
preceding Determination Date (or, in the case of the initial Determination
Date
following the Effective Date, the product of (1) one-twelfth of such Premium
Rate in connection with any Financial Insurance Policy with respect to the
Notes
as of the Effective Date and (2) one plus a fraction, the numerator of which
is
24 and the denominator of which is 30) and (ii) the sum of (x) for all Cargo
Vans and Pick-Up Trucks that were subject to the SPV Fleet Owner Agreement
as of
the Calculation Date, the aggregate Discounted Asset Value of such Cargo Vans
and Pick-Up Trucks as of the immediately preceding Determination Date (or,
in
the case of the initial Determination Date, as
9
of
the Effective Date or, in the case of any Cargo Van or Pick-Up Truck that became
a Funded Truck after the Effective Date but prior to the initial Determination
Date, as of the applicable Funding Date) and (y) any Targeted Note Balance
Shortfall as of the immediately preceding Determination Date (which, for the
purposes of the initial Determination Date, shall equal zero).
“DSCR
Targeted Principal Amount”
means,
as of any Determination Date, the sum, for all Cargo Vans and Pick-Up Trucks
that were subject to the SPV Fleet Owner Agreement as of the Calculation Date,
of the amount, if any, by which (i) the aggregate Discounted Asset Value of
such
Cargo Vans and Pick-Up Trucks as of the immediately preceding Determination
Date
(or, in the case of the initial Determination Date, as of the Effective Date
or,
in the case of any Cargo Van or Pick-Up Truck that became a Funded Truck after
the Effective Date but prior to the initial Determination Date, as of the
applicable Funding Date) exceeds (ii) the aggregate Discounted Asset Value
of
such Cargo Vans and Pick-Up Trucks as of such Determination Date.
“DTC”
means
The Depository Trust Company.
“EDSF
Rate”
means,
as of any date of determination, the bond equivalent rate derived from the
Eurodollar Synthetic Forward Curve appearing on Bloomberg page EDSF (or any
successor service), adjusted for a 30/360 day count convention.
“Effective
Date”
means
June 1, 2007.
“Eligible
Truck”
means,
as of any date of determination, a Cargo Van or Pick-Up Truck (i) that is owned
by a Cargo Van/Pick-Up Truck SPV, free and clear of all Liens other than
Permitted Liens, to which such Cargo Van/Pick-Up Truck SPV, together with the
Nominee Titleholder, holds good and marketable title, and which is subject
to
the SPV Fleet Owner Agreement (ii) (A) the Certificate of Title with respect
to
which is in the name of such Cargo Van/Pick-Up Truck SPV or the Nominee
Titleholder and notes the Trustee as the only lienholder, or (B) an application
for such a Certificate of Title is pending with the appropriate state
authorities or an authorized agent thereof for the purposes of Section 9-303(b)
of the UCC, (iii) that is manufactured by either (A) Ford or GM, or (B) any
other manufacturer (x) so long as the Controlling Party is a Financial Insurance
Provider, consented to in writing by the Controlling Party and (y) with respect
to which the Rating Agency Condition has been satisfied (iv) which has been
purchased by a Cargo Van/Pick-Up Truck SPV, or prior to the Effective Date,
by
an Affiliate thereof, directly from the manufacturer or a third-party dealer,
(v) that has been acquired by such Cargo Van/Pick-Up Truck SPV less than 100
days after the In-Service Date with respect to such Cargo Van or Pick-Up Truck,
(vii) that was made available for rental in the System not later than 4 days
following the date of the delivery of such Cargo Van or Pick-Up Truck to the
applicable Cargo Van/Pick-Up Truck SPV or any Affiliate thereof (provided
that if
an act
of
God, war, fire, flood, tempest, accident, civil disturbance, act of governmental
authority or other act of authority (de
jure
or
de
facto),
legal
constraint or other similar cause beyond the reasonable control of any Cargo
Van/Pick-Up Truck SPV, the Fleet Manager or any Rental Company prevents such
Cargo Van or Pick-Up Truck from being made available for rental in the System
within such four-day period, such Cargo Van or Pick-Up Truck will not be an
Ineligible Truck solely as a result thereof so long as such Cargo Van or Pick-Up
Truck is made available for rental in the System not later than 30 days
after
the
delivery of such Cargo Van or Pick-Up Truck to the applicable Cargo Van/Pick-Up
Truck SPV or any Affiliate thereof),
10
“Eligible
Deposit Account”
means
(a) a segregated identifiable trust account established in the trust department
of a Qualified Trust Institution or (b) a separately identifiable deposit
account established in the deposit taking department of a Qualified
Institution.
“Enforcement
Event”
means
any of the events described in Section
8.1
of the
SPV Fleet Owner Agreement.
“Enhancement”
means,
with respect to any Series of Notes, the rights and benefits provided to the
Noteholders of such Series of Notes pursuant to any Financial Insurance Policy,
cash collateral account, overcollateralization, spread account, guaranteed
rate
agreement, maturity guaranty facility, tax protection agreement, interest rate
hedge or any other similar arrangement.
“Enhancement
Agreement”
means
any contract, agreement, instrument or document governing the terms of any
Enhancement or pursuant to which any Enhancement is issued or outstanding,
including any fee letter in connection therewith.
“Enhancement
Provider”
means
the Person providing any Enhancement as designated in the applicable Series
Supplement, other than, solely for the purposes of determining from which
parties consent is required for any action to be taken with respect to the
Related Documents, any provider of a letter of credit unless the applicable
Series Supplement expressly provides that such provider is an Enhancement
Provider for the purpose of the Base Indenture.
“Environmental
Laws”
means
any and all foreign, Federal, state, local or municipal laws, rules, orders,
regulations, statutes, ordinances, codes, decrees, requirements of any
Governmental Authority or other Requirements of Law (including common law)
regulating, relating to or imposing liability or standards of conduct concerning
protection of the environment, as now or at any time hereafter in
effect.
“Environmental
Permits”
is
defined in Section
8.27
of the
Base Indenture.
“ERISA”
means
the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute of similar import, in each case as in effect from time to
time. References to sections of ERISA also refer to any successor
sections.
“Estimated
SPV Fleet Owner Net Cash Flow”
means,
for any Monthly Period, the highest Monthly SPV Fleet Owner Net Cash Flow for
any Monthly Period during the three (3)
11
“Euroclear”
means
Euroclear Bank, S.A./N.V., as operator of the Euroclear System.
“Event
of Bankruptcy”
shall
be deemed to have occurred with respect to a Person if:
(a) a
case or
other proceeding shall be commenced, without the application or consent of
such
Person, in any court, seeking the liquidation, reorganization, debt arrangement,
dissolution, winding up, or composition or readjustment of debts of such Person,
the appointment of a trustee, receiver, custodian, liquidator, assignee,
sequestrator or the like for such Person or all or any substantial part of
its
assets, or any similar action with respect to such Person under any law relating
to bankruptcy, insolvency, reorganization, winding up or composition or
adjustment of debts, and such case or proceeding shall continue undismissed,
or
unstayed and in effect, for a period of 60 consecutive days; or an order for
relief in respect of such Person shall be entered in an involuntary case under
the federal bankruptcy laws or other similar laws now or hereafter in
effect;
(b) such
Person shall commence a voluntary case or other proceeding under any applicable
bankruptcy, insolvency, reorganization, debt arrangement, dissolution or other
similar law now or hereafter in effect, or shall consent to the appointment
of
or taking possession by a receiver, liquidator, assignee, trustee, custodian,
sequestrator (or other similar official) for such Person or for any substantial
part of its property, or shall make any general assignment for the benefit
of
creditors; or
(c) the
board
of directors or other similar governing body of such Person (if such Person
is a
corporation or similar entity) shall vote to implement any of the actions set
forth in clause
(b)
above.
“Event
of Default”
is
defined in Section
9.1
of the
Base Indenture.
“Exchange
Act”
means
the Securities Exchange Act of 1934, as amended.
“FDIC”
means
the Federal Deposit Insurance Corporation.
“Financial
Insurance Policy”
means,
with respect to any Series of Notes, a financial guaranty insurance policy
insuring the timely payment of interest on such Notes and the payment of
principal of such Notes on their Legal Final Maturity Date.
“Financial
Insurance Provider”
means
the financial guaranty insurance company issuing a Financial Insurance
Policy.
“Fleet
Manager”
means
UHI, in its capacity as the fleet manager under the SPV Fleet Owner Agreement,
and its permitted assigns.
“Fleet
Manager Withdrawal”
is
defined in Section
5.2(b)
of the
Base Indenture.
12
“Fleet
Owner Commissions”
means,
with respect to each Cargo Van or Pick-Up Truck, the product of (i) 60% and
(ii)
the Cargo Van/Pick-Up Truck SPV Gross Rental Fees with respect to such Cargo
Van
or Pick-Up Truck.
“Ford”
means
Ford Motor Company, a Delaware corporation, and its successors.
“Foreign
Clearing Agency”
means
Clearstream and Euroclear.
“Funded
Trucks”
is
defined, with respect to any Series of Notes, in the applicable Series
Supplement.
“GAAP”
means
the generally accepted accounting principles in the United States promulgated
or
adopted by the Financial Accounting Standards Board and its predecessors and
successors from time to time.
“Global
Note”
means
a
Note in registered form evidencing Book-Entry Notes.
“GM”
means
General Motors Corporation, a Delaware corporation, and its
successors.
“Governmental
Authority”
means
the government of the United States of America or any other nation or any
political subdivision of the foregoing, whether state or local, and any agency,
authority, instrumentality, regulatory body, court, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
“Hedge
Agreement”
means
one or more interest rate swap contracts, interest rate cap agreements or
similar contracts entered into by the Issuers in connection with the issuance
of
a Series of Notes, as specified in the applicable Series Supplement, providing
protection against interest rate risks.
“Hedge
Payments”
means
amounts payable to or receivable by the Issuers pursuant to any Hedge
Agreement.
“Indebtedness”,
as
applied to any Person, means, without duplication, (a) all indebtedness for
borrowed money, (b) that portion of obligations with respect to any lease of
any
property (whether real, personal or mixed) that is properly classified as a
liability on a balance sheet in conformity with GAAP, (c) notes payable and
drafts accepted represent-ing extensions of credit whether or not representing
obligations for borrowed money, (d) any obligation owed for all or any part
of
the deferred purchase price for property or services, which purchase price
is
(i) due more than six months from the date of the incurrence of the obligation
in respect thereof or (ii) evidenced by a note or similar written instrument,
(e) all indebtedness secured by any Lien on any property or asset owned by
that
Person regardless of whether the indebtedness secured thereby shall have been
assumed by that Person or is nonrecourse to the credit of that Person, (f)
all
net obligations under any interest rate swap contracts, interest rate cap
agreements or similar contracts and (g) all Contingent Obligations of such
Person in respect of any of the foregoing.
13
“Indenture”
means
the Base Indenture, together with any Series Supplement in effect, as the same
may be amended, modified or supplemented from time to time by Supplements
thereto in accordance with its terms.
“Independent
Manager”
is
defined (i) with respect to USF, in Schedule
A
to the
USF Limited Liability Company Agreement, (ii) with respect to each Cargo
Van/Pick-Up Truck SPV, in Schedule
A
to the
applicable Cargo Van/Pick-Up Truck SPV Limited Liability Company Agreement,
and
(iii) with respect to the Nominee Titleholder, in Schedule
A
to the
Nominee Titleholder Limited Liability Company Agreement.
“Ineligible
Truck”
means
a
Cargo Van or Pick-Up Truck that is not an Eligible Truck.
“Initial
Aggregate Note Balance”
means,
with respect to any Series of Notes, the aggregate initial principal amount
specified in the applicable Series Supplement.
“In-Service
Date”
means,
with respect to any Cargo Van or Pick-Up Truck, the first date on which such
Cargo Van or Pick-Up Truck is available for rental in the System.
“Interest
Period”
means,
with respect to any Series of Notes, the period from and including the preceding
Payment Date to but excluding the current Payment Date; provided,
however,
that
(x) the initial Interest Period with respect to such Series of Notes shall
commence on the Closing Date for such Series and (y) the final Interest Period
shall end on, and exclude, the Payment Date on which the Notes of such Series
shall have been paid in full.
“Investment
Company Act”
means
the Investment Company Act of 1940, as amended.
“Investment
Income”
means
the investment earnings (net of losses and investment expenses) on amounts
on
deposit in the Cargo Van/Pick-Up Truck Collection Account, the Cargo Van/Pick-Up
Truck Purchase Account and any Series Account.
“Investment
Property”
has
the
meaning specified in Section 9-102(a)(49) of the applicable UCC.
“Issuer
Accounts”
means
the Cargo Van/Pick-Up Truck Collection Account, the Cargo Van/Pick-Up Truck
Purchase Account and each Series Account.
“Issuer
Assets”
means
all assets of the Issuers.
“Issuer
Obligations”
means
all principal, premium and interest, at any time and from time to time, owing
by
the Issuers with respect to the Notes, and all costs, fees, expenses,
indemnities and all other amounts payable by, or obligations of, any Issuer
under the Indenture and/or the Related Documents, including any amounts payable
to any Financial Insurance Provider.
“Issuers”
means,
collectively, USF, Cargo Van SPV and Pick-Up Truck SPV, as co-issuers of the
Notes.
“Legal
Final Maturity Date”
means,
with respect to any Series of Notes, the date stated in the applicable Series
Supplement as the maturity date of the Notes of such Series.
14
“Letter
of Representation”
means,
with respect to a Series of Notes having Book-Entry Notes, the letter of
representation from the Issuers to the Clearing Agency or the Foreign Clearing
Agency with respect to such Series, or as otherwise provided in the applicable
Series Supplement.
“Lien”
means,
when used with respect to any Person, any interest in any real or personal
property, asset or other right held, owned or being purchased or acquired by
such Person which secures payment or performance of any obligation, and shall
include any mortgage, lien, pledge, encumbrance, charge, retained security
title
of a conditional vendor or lessor, or other security interest of any kind,
whether arising under a security agreement, mortgage, lease, deed of trust,
chattel mortgage, assignment, pledge, retention or security title, financing
or
similar statement, or notice or arising as a matter of law, judicial process
or
otherwise.
“Management
Standard”
is
defined in Section
2.5
of the
SPV Fleet Owner Agreement.
“Manager”
is
defined (i) with respect to USF, in Schedule
A
to the
USF Limited Liability Company Agreement, (ii) with respect to each Cargo
Van/Pick-Up Truck SPV, in Schedule
A
to the
applicable Cargo Van/Pick-Up Truck SPV Limited Liability Company Agreement,
and
(iii) with respect to the Nominee Titleholder, in Schedule
A
to the
Nominee Titleholder Limited Liability Company Agreement.
“Material
Adverse Effect”
means,
with respect to any occurrence, event or condition:
(i) a
materially adverse effect on the ability of UHI, any Cargo Van/Pick-Up Truck
SPV, the Nominee Titleholder or USF to perform its obligations under any of
the
Related Documents;
(ii) an
adverse effect on (a) the validity or enforceability of any Related Document
or
the rights and remedies of the Trustee, any Financial Insurance Provider or
any
Issuer under any Related Document to which it is a party or (b) the validity,
priority or perfection of the Trustee’s Lien on the Collateral; or
(iii) a
materially adverse effect on (a) the Noteholders or an Enhancement Provider,
(b)
the ownership interest of any Cargo Van/Pick-Up Truck SPV in its respective
Cargo Vans or Pick-Up Trucks, (c) the value of the Cargo Vans or Pick-Up Trucks
or (d) the value or collectibility of the Fleet Owner Commissions or Other
Fleet
Owner Payments generated by the Cargo Vans and Pick-Up Trucks.
“Maximum
Pick-Up Truck Asset Amount”
means,
as of any Determination Date, an amount equal to the product of (i) 40% and
(ii)
the Aggregate Assumed Asset Value as of such Determination Date.
“Member”
is
defined (i) with respect to USF, in Schedule
A
to the
USF Limited Liability Company Agreement, (ii) with respect to each Cargo
Van/Pick-Up Truck SPV, in Schedule
A
to the
applicable Cargo Van/Pick-Up Truck SPV Limited Liability Company Agreement,
and
(iii)
15
“Monthly
Administration Fee”
means,
for any Determination Date, one-twelfth of the product of (i) 0.04% and (ii)
the
Aggregate Assumed Asset Value as of the immediately preceding Determination
Date.
“Monthly
Advance”
is
defined in Section
3.7
of the
SPV Fleet Owner Agreement.
“Monthly
Advance Reimbursement Amount”
means,
with respect to any Series of Notes Outstanding, the amount specified in the
applicable Series Supplement.
“Monthly
Fleet Manager Excess Amount”
means,
for any Monthly Fleet Owner Payment Date, the excess, if any, of (a) the
aggregate amount deposited by the Fleet Manager in the Cargo Van/Pick-Up Truck
Collection Account on each Weekly Fleet Owner Payment Date during the Related
Monthly Period pursuant to the SPV Fleet Owner Agreement over (b) the Monthly
SPV Fleet Owner Net Cash Flow for such Related Monthly Period.
“Monthly
Fleet Owner Payment”
means,
for any Monthly Fleet Owner Payment Date, the excess, if any, of (a) the Monthly
SPV Fleet Owner Net Cash Flow for the Related Monthly Period over (b) the
aggregate amount deposited by the Fleet Manager in the Cargo Van/Pick-Up Truck
Collection Account on each Weekly Fleet Owner Payment Date during such Related
Monthly Period pursuant to the SPV Fleet Owner Agreement.
“Monthly
Fleet Owner Payment Date”
means
the third Friday of each calendar month, or, if such day is not a Business
Day,
the next succeeding Business Day, commencing July 20, 2007.
“Monthly
Insurance Payment”
is
defined in Section
2.4
of the
SPV Fleet Owner Agreement.
“Monthly
Nominee Titleholder Fee”
means,
for any Determination Date, one-twelfth of the product of (i) 0.01% and (ii)
the
Aggregate Assumed Asset Value as of the immediately preceding Determination
Date.
“Monthly
Noteholders’ Statement”
means,
with respect to any Series of Notes, a statement substantially in the form
of an
Exhibit to the applicable Series Supplement.
“Monthly
Period”
means
each calendar month; provided,
however,
that
(x) if the Closing Date occurs on or prior to the tenth day of a calendar month,
the initial Monthly Period shall be the period from and including the Closing
Date to and including the last day of such calendar month and (y) if the Closing
Date occurs after the tenth day of a calendar month, the initial Monthly Period
shall be the period from and including the Closing Date to and including the
last day of the calendar month immediately following such calendar
month.
“Monthly
Report”
is
defined in Section
4.1(b)
of the
Base Indenture.
16
“Monthly
SPV Fleet Owner Net Cash Flow”
means,
for any Monthly Period, the sum of the SPV Fleet Owner Net Cash Flows for each
Cargo Van and Pick-Up Truck during such Monthly Period.
“Xxxxx’x”
means
Xxxxx’x Investors Service, Inc.
“NADA
Guide”
means
the National Automobile Dealers Association, Official Used Car Guide, Eastern
Edition.
“Nevada
Limited Liability Company Act”
means
Title 7, Chapter 86 of the Nevada Revised Statues, as amended from time to
time.
“New
York UCC”
means
the UCC in effect from time to time in the State of New York.
“Nominee
Titleholder”
means
U-Haul Titling, LLC as nominee titleholder for each Cargo Van/Pick-Up Truck
SPV
appointed pursuant to the Nominee Titleholder Agreement.
“Nominee
Titleholder Agreement”
means
the Nominee Titleholder Agreement, dated as of the Effective Date, among the
Nominee Titleholder, the Trustee, UHI and each Cargo Van/Pick-Up Truck SPV,
as
amended, modified or supplemented from time to time in accordance with its
terms.
“Nominee
Titleholder Limited Liability Company Agreement”
means
the Operating Agreement of the Nominee Titleholder, dated as of June 1, 2007,
between U-Haul Co. of Arizona and the Nominee Titleholder’s Independent Manager,
as amended, modified or supplemented from time to time in accordance with its
terms.
“Note
Owner”
means,
with respect to a Book-Entry Note, the Person who is the beneficial owner of
such Book-Entry Note, as reflected on the books of the Clearing Agency or
Foreign Clearing Agency, or on the books of a Person maintaining an account
with
such Clearing Agency or Foreign Clearing Agency (directly or as an indirect
participant, in accordance with the rules of such Clearing Agency or Foreign
Clearing Agency).
“Note
Rate”
means,
with respect to any Series of Notes, the annual rate at which interest accrues
on the Notes of such Series of Notes (or formula on the basis of which such
rate
shall be determined) as stated in the applicable Series Supplement.
“Note
Register”
is
defined in Section
2.6(a)
of the
Base Indenture.
“Noteholder”
and
“Holder”
means
the Person in whose name a Note is registered in the Note Register.
“Notes”
is
defined in the recitals to the Base Indenture.
“Officer’s
Certificate”
means
a
certificate signed by an Authorized Officer of USF, any Cargo Van/Pick-Up Truck
SPV, the Nominee Titleholder and/or UHI, as the case may be.
17
“One-Month
DSCR”
means,
as of any Determination Date, the ratio of (a) the sum of (i) the aggregate
SPV
Fleet Owner Net Cash Flows for all Cargo Vans and Pick-Up Trucks subject to
the
SPV Fleet Owner Agreement as of the last day of the Related Monthly Period
during the Related Monthly Period (which, for the avoidance of doubt, shall
not
include the amount of any Monthly Advance) and (ii) all Investment Income (other
than Investment Income earned on amounts on deposit in the Cargo Van/Pick-Up
Truck Purchase Account) for the Related Monthly Period to (b) the sum of (i)
the
sum of (X) the DSCR Targeted Principal Amount, (Y) the DSCR Interest Amount
and
(Z) the DSCR Premium, in each case as of such Determination Date and (ii) any
Targeted Note Balance Shortfall on the immediately preceding Determination
Date.
“Operating
Expenses”
means,
with respect to each Cargo Van and Pick-Up Truck, the Monthly Insurance Payment
with respect to such Cargo
Van
or Pick-Up Truck
and
all maintenance, repair, licensing and titling costs with respect to or
allocated to such Cargo Van or Pick-Up Truck by the Fleet Manager in accordance
with the terms of the SPV Fleet Owner Agreement.
“Opinion
of Counsel”
means
a
written opinion from legal counsel who is reasonably acceptable to the Trustee.
The counsel may be counsel to USF, any Cargo Van/Pick-Up Truck SPV, the Nominee
Titleholder or UHI, as the case may be. For purposes of Section
8.11(e)
of the
Base Indenture, any legal counsel employed by UHI, which may be an employee
of
UHI, shall be deemed to be reasonably acceptable to the Trustee.
“Other
Assets”
is
defined in Section
14.19
of the
Base Indenture.
“Other
Fleet Owner Payments”
means,
with respect to each Cargo Van and Pick-Up Truck, the sum of (i) all warranty
payments and (ii) all Safemove Fees, less
the
amount thereof payable to Republic Western Insurance Company or any other
insurance carrier in respect of the related Safemove, in each case with respect
to such Cargo Van or Pick-Up Truck.
“Outstanding”
is
defined, with respect to any Series of Notes, in the applicable Series
Supplement.
“Paying
Agent”
means
any paying agent appointed pursuant to Section
2.7(a)
of the
Base Indenture.
“Payment
Date”
means
the twenty-fifth day of each calendar month, or, if such day is not a Business
Day, the next succeeding Business Day, commencing on July 25, 2007.
“PBGC”
means
Pension Benefit Guaranty Corporation.
“Pension
Plan”
means
any “employee pension benefit plan”, as such term is defined in ERISA, which is
subject to Title IV of ERISA (other than a “multiemployer plan”, as defined in
Section 4001 of ERISA) and to which any company in the Controlled Group has
liability, including any liability by reason of having been a substantial
employer within the meaning of Section 4063 of ERISA for any time within the
preceding five years or by reason of being deemed to be a contributing sponsor
under Section 4069 of ERISA.
18
“Permitted
Investments”
means
negotiable instruments or securities, payable in Dollars, issued by an entity
organized under the laws of the United States of America and represented by
instruments in bearer or registered or book-entry form which evidence (excluding
any security with the “r” symbol attached to its rating):
(i)
obligations the full and timely payment of which are to be made by or is fully
guaranteed by the United States of America other than financial contracts whose
value depends on the values or indices of asset values;
(ii)
demand deposits of, time deposits in, or certificates of deposit issued by,
any
depositary institution or trust company incorporated under the laws of the
United States of America or any state thereof whose short-term debt is rated
“P-1” or higher by Moody’s and “A-1+” by Standard & Poor’s and subject to
supervision and examination by federal or state banking or depositary
institution authorities; provided,
however,
that at
the earlier of (x) the time of the investment and (y) the time of the
contractual commitment to invest therein, the long-term unsecured debt
obligations (other than such obligation whose rating is based on collateral
or
on the credit of a Person other than such institution or trust company) of
such
depositary institution or trust company shall have a credit rating from Standard
& Poor’s of not lower than “AAA”;
(iii)
commercial paper having, at the earlier of (x) the time of the investment and
(y) the time of the contractual commitment to invest therein, a rating from
Moody’s of “P-1” and Standard & Poor’s of “A-1+”;
(iv)
bankers’ acceptances issued by any depositary institution or trust company
described in clause (ii) above;
(v)
investments in money market funds (including any money market mutual funds
or
common trust funds and including any funds managed by the Trustee or an
Affiliate thereof) (x) rated “Aaa” by Xxxxx’x and “AAAm” by Standard &
Poor’s or (y) with respect to the investment in which the Rating Agency
Condition has been satisfied and, for so long as a Financial Insurance Provider
is the Controlling Party, which have been approved in writing by the Controlling
Party;
(vi)
Eurodollar time deposits having a credit rating from Xxxxx’x of “P-1” and
Standard & Poor’s of “A-1+”;
(vii)
repurchase agreements involving any of the Permitted Investments described
in
clauses (i) and (vi) above and the certificates of deposit described in clause
(ii) above which are entered into with a depository institution or trust
company, having a commercial paper or short-term certificate of deposit rating
of “P-1” by Xxxxx’x and “A-1+” by Standard & Poor’s or which otherwise is
approved as to collateralization by the Rating Agencies; and
(viii)
any other instruments or securities, if (x) for so long as a Financial Insurance
Provider is the Controlling Party, the Controlling Party consents in writing
and
(y) with respect to the investment in which the Rating Agency Condition has
been
satisfied.
19
“Permitted
Liens”
means
(i) Liens for current taxes not delinquent or for taxes being contested in
good
faith and by appropriate proceedings, and with respect to which adequate
reserves have been established, and are being maintained, in accordance with
GAAP, (ii) mechanics’, materialmen’s, landlords’, warehousemen’s and carriers’
Liens, and other Liens imposed by law, securing obligations arising in the
ordinary course of business that are not more than thirty (30) days past due
or
are being contested in good faith and by appropriate proceedings and with
respect to which adequate reserves have been established, and are being
maintained, in accordance with GAAP, (iii) the Liens in favor of the Cargo
Van/Pick-Up Truck SPVs created pursuant to the SPV Fleet Owner Agreement, (iv)
the Liens in favor of the Trustee created pursuant to the Indenture or (v)
the
Liens created on Other Assets in connection with a Permitted Note Issuance
pursuant to any Permitted Note Issuance Related Documents; provided
that, in
the case of clauses
(i)
and
(ii),
such
Liens do not create any material risk of foreclosure of any asset and the
failure to make payment pending resolution could not reasonably be expected
to
result in a Material Adverse Effect.
“Permitted
Note Issuance”
means
the issuance by USF and one or more Permitted Note Issuance SPVs of one or
more
series of notes (a) that are secured solely by Other Assets of USF and all
assets of such Permitted Note Issuance SPVs including, among other things,
a
security interest in box trucks, vans and/or pickup trucks being acquired,
directly or indirectly, with the proceeds of such notes, one or more fleet
owner
agreements pursuant to which UHI agrees to make such box trucks, vans and/or
pickup trucks available for rental in the System and the equity interests in
each Permitted Note Issuance SPV owning such box trucks, vans and/or pickup
trucks held by USF and (b) if issued on or after the Effective Date, with
respect to the issuance of which the Rating Agency Condition shall have been
satisfied.
“Permitted
Note Issuance Indenture”
means
any indenture pursuant to which Permitted Notes are issued by USF and/or one
or
more Permitted Note Issuance SPVs.
“Permitted
Note Issuance Rating Agency Condition”
means,
with respect to any action, that each Rating Agency shall have notified the
Issuers, any Financial Insurance Provider and the Trustee in writing that such
action will not result in a reduction or withdrawal of the rating (in effect
immediately before the taking of such action) of any series of Permitted Notes
(including any rating of such Permitted Notes assigned without regard to
enhancement for such Permitted Notes).
“Permitted
Note Issuance Related Documents”
means
each Permitted Note Issuance Indenture, each Permitted Note Issuance SPV Limited
Guarantee and any other agreements or instruments entered into by USF or a
Permitted Note Issuance SPV in connection with any Permitted Note
Issuance.
“Permitted
Note Issuance SPV”
means
a
special purpose, bankruptcy-remote entity, other than a Cargo Van/Pick-Up Truck
SPV, which is a direct wholly-owned subsidiary of USF and which owns box trucks,
vans and/or pickup trucks engaged in a Permitted Note Issuance.
“Permitted
Note Issuance SPV Limited Guarantee”
means
a
guarantee by a Permitted Note Issuance SPV of, among other things, the
obligations of USF under the Indenture, substantially identical, mutatis mutandis,
to
Exhibit
B
to the
Base Indenture.
20
“Permitted
Note Issuance Trustee”
means
a
Person party to a Permitted Note Issuance Indenture as trustee.
“Permitted
Notes”
means
any series of notes issued by USF and/or one or more Permitted Note Issuance
SPVs in connection with a Permitted Note Issuance.
“Person”
means
any natural person, corporation, business trust, joint venture, association,
company, partnership, limited liability company, joint stock company,
corporation, trust, unincorporated organization or Governmental
Authority.
“Pick-Up
Truck”
means
a
pick-up truck owned by Pick-Up Truck SPV.
“Pick-Up
Truck SPV”
means
2007 BP-1, LLC, a Nevada limited liability company, and its permitted
successors.
“Placement
Agency Agreement”
means
any agreement pursuant to which one or more Placement Agents agree with the
Issuers and UHI to place Notes with, or purchase Notes for resale to,
investors.
“Placement
Agent”
means
any Person in its capacity as a placement agent or an initial purchaser under
a
Placement Agency Agreement.
“Potential
Enforcement Event”
means
any occurrence or event which, with the giving of notice, the passage of time
or
both, would constitute an Enforcement Event.
“Potential
Rapid Amortization Event”
means
any occurrence or event which, with the giving of notice, the passage of time
or
both, would constitute a Rapid Amortization Event.
“Potential
Termination Event”
means
any occurrence or event which, with the giving of notice, the passage of time
or
both, would constitute a Termination Event.
“Premium
Rate”
with
respect to any Financial Insurance Policy will be defined in the fee letter
with
respect to such Financial Insurance Policy.
“Principal
Terms”
is
defined in Section
2.4
of the
Base Indenture.
“Proceeding”
means
any suit in equity, action or law or other judicial or administrative
proceeding.
“Proceeds”
has
the
meaning set forth in Section 9-102(a)(64) of the applicable UCC.
“Qualified
Institution”
means
a
depository institution organized under the laws of the United States of America
or any state thereof or incorporated under the laws of a foreign jurisdiction
with a branch or agency located in the United States of America or any state
thereof and subject to supervision and examination by federal or state banking
authorities which at all times has the Required Rating and, in the case of
any
such institution organized under the laws of the United States of America,
whose
deposits are insured by the FDIC.
21
“Qualified
Trust Institution”
means
an institution organized under the laws of the United States of America or
any
state thereof or incorporated under the laws of a foreign jurisdiction with
a
branch or agency located in the United States of America or any state thereof
and subject to supervision and examination by federal or state banking
authorities which at all times (i) is authorized under such laws to act as
a
trustee or in any other fiduciary capacity, (ii) has capital, surplus and
undivided profits of not less than $500,000,000 as set forth in its most recent
published annual report of condition and (iii) has a long term deposits rating
of not less than “AA-” by Standard & Poor’s and “Aa3” by
Xxxxx’x.
“Rapid
Amortization Event”
is
defined in Section
10.1
of the
Base Indenture.
“Rating
Agency”
means
each of Moody’s and Standard & Poor’s.
“Rating
Agency Condition”
means,
with respect to any action, that (i) each Rating Agency shall have notified
the
Issuers, any Financial Insurance Provider and the Trustee in writing that such
action will not result in a reduction or withdrawal of the rating (in effect
immediately before the taking of such action) of the Notes and (ii) each Rating
Agency shall have notified any applicable Enhancement Provider entitled to
such
notification pursuant to the Indenture in writing that such action will not
result in a reduction or withdrawal of the rating (without regard to the
presence of the Enhancement provided by each such Enhancement Provider and
in
effect immediately before the taking of such action) of the Notes.
“Record
Date”
with
respect to any Series of Notes, has the meaning specified in the applicable
Series Supplement.
“Reference
Truck”
means,
with respect to any Cargo Van or Pick-Up Truck, the Cargo Van or Pick-Up Truck
most recently purchased by either Cargo Van/Pick-Up Truck SPV of the same make
and model as such Cargo Van or Pick-Up Truck, but of the previous model
year.
“Registrar”
is
defined in Section
2.6(a)
of the
Base Indenture.
“Related
Documents”
means,
collectively, the Indenture, the Notes, any Enhancement Agreement, the Nominee
Titleholder Agreement, the Administration Agreement, the Account Control
Agreements, the Cargo Van/Pick-Up Truck SPV Limited Liability Company
Agreements, the USF Limited Liability Company Agreement, each Sale and
Contribution Agreement, any Placement Agency Agreement, any other agreements
relating to the issuance or the purchase of any Series of Notes and the SPV
Fleet Owner Agreement.
“Related
Monthly Period”
means,
with respect to any Payment Date, any Determination Date, any Calculation Date
or any Monthly Fleet Owner Payment Date, the Monthly Period immediately
preceding the Monthly Period in which such Payment Date, Determination Date,
Calculation Date or Monthly Fleet Owner Payment Date occurs.
“Related
Payment Date”
means,
with respect to any Determination Date, the Payment Date next succeeding such
Determination Date.
“Rental
Company”
means
each wholly-owned subsidiary of UHI acting as a regional marketing company
pursuant to a Rental Company Contract.
22
“Rental
Company Contract”
means
each Rental Company Contract between a Rental Company and UHI, substantially
in
the form of Exhibit A to the SPV Fleet Owner Agreement, pursuant to which UHI
agrees to make trucks, trailers and other rental equipment available to the
System in the Rental Company’s territory and the Rental Company agrees to
merchandise, maintain and repair such rental equipment.
“Rental
Dealer”
means
any U-Haul operated retail moving center or independent dealer offering truck
rental services in the United States or Canada.
“Required
Noteholders”
means
Noteholders holding in excess of 50% of the Aggregate Note Balance (excluding,
for the purposes of making the foregoing calculation, any Notes held by any
Issuer or any Affiliate of any Issuer).
“Required
Payment”
means,
with respect to any Series of Notes Outstanding, the amount specified in the
applicable Series Supplement.
“Required
Rating”
means
(i) a short-term certificate of deposit rating from Xxxxx’x of “P-1” and from
Standard & Poor’s of at least “A-1” and (ii) a long-term unsecured debt
rating of not less than “Aa3” by Xxxxx’x and “AA-” by Standard &
Poor’s.
“Requirements
of Law”
means,
with respect to any Person or any of its property, the certificate of
incorporation, articles of association and by-laws, articles of organization,
operating agreement or other organizational or governing documents of such
Person or any of its property, and any law, treaty, rule or regulation, or
determination of any arbitrator or Governmental Authority, in each case
applicable to or binding upon such Person or any of its property or to which
such Person or any of its property is subject, whether federal, state or local
(including usury laws, the Federal Truth in Lending Act and retail installment
sales acts).
“RTAC”
means
RTAC, LLC, a Nevada limited liability company, which is the direct parent of
USF
and an indirect wholly-owned subsidiary of UHI.
“RTAC
Sale and Contribution Agreement”
means
the Sale and Contribution Agreement, dated as of the Effective Date, by and
among RTAC, UHI and USF, together with each Bill of Sale (as defined therein)
and each other document delivered pursuant thereto, as amended, modified or
supplemented from time to time in accordance with its terms.
“Safemove”
means
the optional insurance policy providing a damage waiver, cargo protection and
medical and life coverage offered through the System to rental customers of
the
Cargo Vans and Pick-Up Trucks.
“Safemove
Fee”
means,
with respect to any Cargo Van or Pick-Up Truck, the fee paid by a rental
customer of such Cargo Van or Pick-Up Truck in order to obtain Safemove.
“Sale
and Contribution Agreements”
means,
collectively, the RTAC Sale and Contribution Agreement and the XXXX Sale and
Contribution Agreement.
23
“Seasonal
Depreciation Percentage”
means,
with respect to any Monthly Period for a Cargo Van or Pick-Up Truck, the
percentage set forth for such calendar month for a Cargo Van or Pick-Up Truck,
as applicable, on the Assumed Asset Value Schedule.
“Secured
Parties”
is
defined in Section
3.1(a)
of the
Base Indenture.
“Securities
Act”
means
the Securities Act of 1933, as amended.
“Security
Agreements”
means,
collectively, the Indenture, the Notes, the Administration Agreement, the
Nominee Titleholder Agreement and the Account Control Agreements.
“Series
Account”
means
any account or accounts established pursuant to a Series Supplement for the
benefit of a Series of Notes.
“Series
of Notes”
or
“Series”
means
each Series of Notes issued and authenticated pursuant to the Base Indenture
and
a Series Supplement.
“Series
Supplement”
means,
with respect to any Series of Notes, a supplement to the Base Indenture
complying with the terms of Section
2.3
of the
Base Indenture, executed in conjunction with any issuance of any Series of
Notes.
“Six-Month
DSCR”
means,
as of any Determination Date, the ratio of (a) the sum of (i) the sum of the
aggregate SPV Fleet Owner Net Cash Flows for all Cargo Vans and Pick-Up Trucks
subject to the SPV Fleet Owner Agreement as of the last day of the Related
Monthly Period during the six Monthly Periods preceding such Determination
Date
(which, for the avoidance of doubt, shall not include the amount of any Monthly
Advance) and (ii) all Investment Income (other than Investment Income earned
on
amounts on deposit in the Cargo Van/Pick-Up Truck Purchase Account) for the
six
Monthly Periods preceding such Determination Date to (b) the sum of (i) the
sum
of (X) the DSCR Targeted Principal Amount, (Y) the DSCR Interest Amount and
(Z)
the DSCR Premium, in each case as of such Determination Date and each of the
five Determination Dates preceding such Determination Date and (ii) any Targeted
Note Balance Shortfall on the sixth Determination Date preceding such
Determination Date; provided
that the
Six-Month DSCR shall not be calculated on each of the first three Determination
Dates immediately following the Effective Date; provided further
that on
each of the fourth and fifth Determination Dates immediately following the
Effective Date, the Six-Month DSCR shall be calculated based only on the number
of Monthly Periods and Determination Dates occurring since the Effective
Date.
“SPV
Fleet Owner Agreement”
means
the 2007-1 Cargo Van/Pick-Up Truck SPV Fleet Owner Agreement, dated as of the
Effective Date, among Cargo Van SPV, Pick-Up Truck SPV and UHI, as the Fleet
Manager thereunder, as amended, modified or supplemented from time to time
in
accordance with its terms.
“SPV
Fleet Owner Net Cash Flow”
means,
with respect to each Cargo Van and Pick-Up Truck subject to the SPV Fleet Owner
Agreement during each Monthly Period, (x) the sum of (i) the Fleet Owner
Commissions with respect to such Cargo Van or Pick-Up Truck during such Monthly
Period and (ii) the Other Fleet Owner Payments with respect to such Cargo Van
or
24
“Standard
& Poor’s”
means
Standard & Poor’s Ratings Service, a division of The XxXxxx-Xxxx Companies,
Inc.
“Subsidiary”
means,
with respect to any Person (herein referred to as the “parent”), any
corporation, partnership, association or other business entity (a) of which
securities or other ownership interests representing more than 50% of the equity
or more than 50% of the ordinary voting power or more than 50% of the general
partnership interests are, at the time any determination is being made, owned,
controlled or held by the parent or (b) that is, at the time any determination
is being made, otherwise controlled by the parent or one or more subsidiaries
of
the parent or by the parent and one or more subsidiaries of the
parent.
“Supplement”
means
a
supplement to the Base Indenture complying (to the extent applicable) with
the
terms of Article
13
of the
Base Indenture.
“Surety
Default”
is
defined with respect to any Financial Insurance Provider in the applicable
Series Supplement.
“Swap
Rate”
means,
as of any date of determination, the mid-market swap rate appearing on page
19901 of the Telerate service (or any successor service), adjusted for monthly
compounding.
“System”
means
the network of retail moving centers operated by U-Haul and independent dealers
offering truck rental services throughout the United States and
Canada.
“Target
Weekly Fleet Owner Payment”
means,
for any Weekly Fleet Owner Payment Date with respect to a Monthly Period, an
amount equal to one-third of the Estimated SPV Fleet Owner Net Cash Flow for
such Monthly Period.
“Targeted
Note Balance Shortfall”
means,
as of any Determination Date, the excess, if any, of the Aggregate Note Balance
as of the Related Payment Date (after giving effect to all principal payments
to
be made on such Payment Date) over the Discounted Aggregate Asset Amount as
of
such Determination Date.
“Targeted
Principal Deposit”
means,
for any Payment Date, the amount by which the Aggregate Note Balance on such
Payment Date (before giving effect to any payments on the Notes on such Payment
Date) exceeds the Discounted Aggregate Asset Amount as of the Determination
Date
with respect to such Payment Date.
“Termination
Event”
means
any of the events described in Section
8.2
of the
SPV Fleet Owner Agreement.
“Title
Trigger Event”
is
defined in Section
6.1(f)
of the
Administration Agreement.
“Trust
Indenture Act”
means
the Trust Indenture Act of 1939, as amended.
25
“Trust
Officer”
means,
with respect to the Trustee, any Senior Vice President, Vice President,
Assistant Vice President, Assistant Secretary, Assistant Treasurer or any trust
officer of the Corporate Trust Office responsible for the administration of
the
Base Indenture.
“Trustee”
means
the party named as such in the Base Indenture until a successor replaces it
in
accordance with the applicable provisions of the Base Indenture and thereafter
means the successor serving thereunder.
“Trustee
Fee”
means,
for each Payment Date, the monthly fee payable by the Issuers to the Trustee,
as
set forth in the fee letter dated the Effective Date from the Trustee to the
Issuers.
“UCC”
or
“Uniform
Commercial Code”
means
the Uniform Commercial Code as in effect from time to time in the specified
jurisdiction.
“U-Haul”
means,
collectively, UHI together with those of its subsidiaries engaged in moving
and
storage operations.
“UHI”
means
U-Haul International, Inc., a Nevada corporation and its permitted successors.
“XXXX”
means
U-Haul Leasing & Sales Co., a Nevada corporation.
“XXXX
Sale and Contribution Agreement”
means
the Sale and Contribution Agreement, dated as of the Effective Date, by and
among XXXX, UHI and RTAC, together with each Bill of Sale (as defined therein)
and each other document delivered pursuant thereto, as amended, modified or
supplemented from time to time in accordance with its terms.
“Uneconomical
Truck”
means
a
Cargo Van or Pick-Up Truck with respect to which the Operating Expenses exceed
the sum of (x) the Fleet Owner Commissions generated by such Cargo Van or
Pick-Up Truck and (y) the Other Fleet Owner Payments with respect to such Cargo
Van or Pick-Up Truck in either (i) each of six (6) consecutive Monthly Periods
or (ii) any six (6) Monthly Periods during any nine (9) consecutive Monthly
Periods.
“United
States”
or
“U.S.”
means
the United States of America, its fifty states and the District of
Columbia.
“U.S.
Government Obligations”
means
(i) direct obligations of the United States of America, or any agency or
instrumentality thereof for the payment of which the full faith and credit
of
the United States of America is pledged as to full and timely payment of such
obligations, or (ii) any other obligations which are “government securities”
within the meaning of Section 2(a)(16) of the Investment Company
Act.
“USF”
means
U-Haul S Fleet, LLC, a Nevada limited liability company, and its permitted
successors.
“USF
Assets”
means
all assets of USF.
“USF
Collateral”
is
defined in Section
3.1(a)
of the
Base Indenture.
26
“USF
Limited Liability Company Agreement”
means
the Operating Agreement of USF, dated as of June 1, 2007, between RTAC and
USF’s
Independent Manager, as amended, modified or supplemented from time to time
in
accordance with its terms.
“VIN”
means
vehicle identification number.
“Weekly
Fleet Owner Carryover Amount”
means,
as of any Weekly Fleet Owner Payment Date in any Monthly Period, an amount
(not
less than zero) equal to the excess of (i) the Monthly Fleet Manager Excess
Amount for the Monthly Fleet Owner Payment Date in the immediately preceding
Monthly Period over (ii) the sum of (a) the amount of the Fleet Manager
Withdrawal, if any, paid to the Fleet Manager on such Monthly Fleet Owner
Payment Date and (b) the sum of the Weekly Fleet Owner Payments deposited into
the Cargo Van/Pick-Up Truck Collection Account on each prior Weekly Fleet Owner
Payment Date in such Monthly Period.
“Weekly
Fleet Owner Payment”
means
the amount payable by the Fleet Manager on any Weekly Fleet Owner Payment Date
pursuant to Section
3.3
of the
SPV Fleet Owner Agreement.
“Weekly
Fleet Owner Payment Date”
means
each Wednesday, or if such Wednesday is not a Business Day, the next succeeding
Business Day.
“written”
or
“in
writing”
means
any form of written communication, including by means of telex, telecopier
device, telegraph, email or cable.
27
