EXHIBIT 4.35


 




 





SERIES 2009-1 NOTE PURCHASE AGREEMENT


 


DATED AS OF OCTOBER 23, 2009


 


BETWEEN


 


TAL ADVANTAGE III LLC,


 


AS ISSUER,


 


THE NOTEHOLDERS FROM TIME TO TIME PARTY HERETO


 


AND


 


THE OTHER FINANCIAL INSTITUTIONS FROM TIME TO TIME PARTY HERETO


 




 





TAL ADVANTAGE III LLC SERIES 2009-1, FLOATING RATE SECURED NOTES


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I

  
	
   

  
	
  DEFINITIONS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 1.1

  	
   

  	
  Certain Defined Terms

  	
   

  	
  1

  
	
  Section 1.2

  	
   

  	
  Other Terms

  	
   

  	
  2

  
	
  Section 1.3

  	
   

  	
  Computation of Time Periods

  	
   

  	
  3

  
	
  Section 1.4

  	
   

  	
  Statutory References

  	
   

  	
  3

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  
	
  PURCHASE OF THE NOTES

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 2.1

  	
   

  	
  Sale and Delivery of the Notes

  	
   

  	
  3

  
	
  Section 2.2

  	
   

  	
  Acceptance and Custody of Notes

  	
   

  	
  4

  
	
  Section 2.3

  	
   

  	
  Increase/Reduction of the Series 2009-1 Note
  Existing Commitment

  	
   

  	
  4

  
	
  Section 2.4

  	
   

  	
  Payments, Computations, Etc.

  	
   

  	
  5

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  
	
  CONDITIONS OF PURCHASE

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 3.1

  	
   

  	
  Conditions Precedent to Initial Purchase

  	
   

  	
  5

  
	
  Section 3.2

  	
   

  	
  Conditions Precedent to Each Series 2009-1
  Advance

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  
	
  REPRESENTATIONS AND WARRANTIES

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 4.1

  	
   

  	
  Representations and Warranties of the Issuer

  	
   

  	
  6

  
	
  Section 4.2

  	
   

  	
  Representations, Warranties and Agreements of the
  Purchasers

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  
	
  GENERAL COVENANTS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 5.1

  	
   

  	
  General Covenants of the Issuer

  	
   

  	
  7

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  
	
  INDEMNIFICATION

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 6.1

  	
   

  	
  Indemnities
  by the Issuer

  	
   

  	
  8

  



 


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  ARTICLE VII

  
	
   

  
	
  THE DEAL AGENT

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 7.1

  	
   

  	
  Authorization and Securities Action

  	
   

  	
  9

  
	
  Section 7.2

  	
   

  	
  Delegation of Duties

  	
   

  	
  9

  
	
  Section 7.3

  	
   

  	
  Exculpatory Provisions

  	
   

  	
  9

  
	
  Section 7.4

  	
   

  	
  Reliance

  	
   

  	
  10

  
	
  Section 7.5

  	
   

  	
  Non-Reliance on Deal Agents and Other Purchasers

  	
   

  	
  10

  
	
  Section 7.6

  	
   

  	
  Deal Agent in its Individual Capacity

  	
   

  	
  10

  
	
  Section 7.7

  	
   

  	
  Successor Deal Agent

  	
   

  	
  11

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
   

  
	
  MISCELLANEOUS

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 8.1

  	
   

  	
  Amendments and Waivers

  	
   

  	
  11

  
	
  Section 8.2

  	
   

  	
  Notices, Etc.

  	
   

  	
  12

  
	
  Section 8.3

  	
   

  	
  No Waiver; Remedies

  	
   

  	
  12

  
	
  Section 8.4

  	
   

  	
  Binding Effect

  	
   

  	
  12

  
	
  Section 8.5

  	
   

  	
  Term of this Agreement

  	
   

  	
  12

  
	
  Section 8.6

  	
   

  	
  GOVERNING LAW

  	
   

  	
  12

  
	
  Section 8.7

  	
   

  	
  WAIVER OF JURY TRIAL; CONSENT TO JURISDICTION

  	
   

  	
  13

  
	
  Section 8.8

  	
   

  	
  Inspection Rights, Costs, Expenses and Taxes

  	
   

  	
  13

  
	
  Section 8.9

  	
   

  	
  No Proceedings

  	
   

  	
  14

  
	
  Section 8.10

  	
   

  	
  Recourse Against Certain Parties

  	
   

  	
  15

  
	
  Section 8.11

  	
   

  	
  Ratable Payments

  	
   

  	
  15

  
	
  Section 8.12

  	
   

  	
  Confidentiality

  	
   

  	
  16

  
	
  Section 8.13

  	
   

  	
  Execution in Counterparts; Severability; Integration

  	
   

  	
  16

  



 


	
  SCHEDULE 1

  	
   

  	
  CONDITIONS PRECEDENT TO INITIAL PURCHASE

  
	
  SCHEDULE 2

  	
   

  	
  PURCHASE LIMITS

  
	
  EXHIBIT A

  	
   

  	
  FORM OF COMPLIANCE CERTIFICATE AND FUNDING NOTICE

  
	
  EXHIBIT B

  	
   

  	
  FORM OF ADDITION NOTICE

  
	
  EXHIBIT C

  	
   

  	
  FORM OF ASSIGNMENT AND ACCEPTANCE

  
	
  EXHIBIT D

  	
   

  	
  FORM OF INCREASE LETTER

  



 


 


ii

















 


This SERIES 2009-1  NOTE PURCHASE AGREEMENT (as amended, modified and supplemented
from time to time in accordance with its terms, this “Agreement”), dated as of October 23,
2009, is entered into by and among:


 


(1)                                  TAL ADVANTAGE
III LLC, a limited liability company organized under the laws of the State of
Delaware (together with its successors and assigns, the “Issuer”);


 


(2)                                  The Purchasers
from time to time party hereto; and


 


(3)                                  The financial
institutions made party to this Agreement from time to time pursuant to an
Addition Notice and listed under the heading “The Deal Agents” together with
their respective successors and assigns (the “Deal Agents”).


 


In consideration of the
premises and mutual covenants herein contained, the parties hereto agree as
follows:


 


ARTICLE I



DEFINITIONS


 


Section 1.1                                      Certain Defined
Terms.


 


(1)                                  Certain
capitalized terms used throughout this Agreement are defined above or in this Section 1.1.  In addition, capitalized terms used but not
defined herein have the meanings given to such terms in the Appendix A to the
Indenture, dated as of October 23, 2009 (as amended, restated or supplemented
from time to time, the “Indenture”), by and between the Issuer and Wells Fargo
Bank, National Association, as indenture trustee (the “Indenture Trustee”) or,
if such terms are not defined therein, such terms shall have the meanings given
to such terms in the Series 2009-1 Supplement, dated as of October 23,
2009 (as amended, restated or supplemented from time to time, the “Supplement”),
by and between the Issuer and the Indenture Trustee.


 


(2)                                  As used in this
Agreement and its exhibits, the following terms shall have the following
meanings (such meanings to be equally applicable to both the singular and
plural forms of the terms defined):


 


“Assignment and
Acceptance”:  Any properly completed
agreement substantially in the form of Exhibit C hereto.


 


“Closing Date”:  October 26, 2009.


 


“Collection Date”:  The date on which the last to occur of the
following events occurs:  (i) the
Aggregate Series 2009-1 Principal Balance has been reduced to zero and the
commitments to fund of the Purchasers have been terminated, (ii) the
Purchasers have received all amounts of interest due in respect of the Notes
and other amounts due to the Purchasers in connection with this Agreement, the
Indenture and the Supplement and (iii) the Deal Agents have received all
amounts due to them in connection with this Agreement.


 

















 


“Conversion Date”:  This term shall have the meaning set forth in
the Supplement.


 


“Deal Agent”:  This term shall have the meaning set forth in
the preamble hereto.


 


“Increase Notice”:  Any properly completed notice substantially
in the form of Exhibit D hereto.


 


“Indemnified Amounts”:  This term shall have the meaning set forth in
Section 6.1 hereof.


 


“Indemnified Party”:  This term shall have the meaning set forth in
Section 6.1 hereof.


 


“Note”:  Any Series 2009-1 Note.


 


“Percentage”:  With respect to any Purchaser as of any date
of determination, the percentage equivalent of a fraction, the numerator of
which is equal to the Purchaser’s Purchase Limit and the denominator of which
is equal to the aggregate Purchase Limit for all Purchasers.


 


“Purchase”:  The initial purchase by a Purchaser of the
Notes from the Issuer and the payment of any additional Series 2009-1
Advance by a Purchaser.


 


“Purchase Limit”:  The maximum amount of Series 2009-1
Advances that a Purchaser shall be required to fund to the Issuer hereunder, as
set forth on Schedule 2 hereto (as such Schedule 2 shall be deemed to be
amended by a properly executed Assignment and Acceptance or Increase Notice).


 


“Purchaser”:  Any other Person that may agree from time to
time pursuant to the terms of this Agreement or the pertinent Assignment and
Acceptance or Addition Notice, to fund a Series 2009-1 Advance hereunder
and their successors and assigns.  The
initial Purchaser hereunder shall be Wachovia Bank, National Association.


 


“Scheduled Commitment
Expiration Date”:  October 25,
2011, as such date may be extended from time to time in accordance with Section 2.1(c) hereof.


 


“Wachovia Bank/TICC
Repurchase Facility”:  The Master
Repurchase Agreement, dated as of September 19, 2009, among Wachovia Bank,
National Association, as buyer, Wells Fargo Securities, LLC, as agent, TAL
International Container Corporation, as seller, and TAL International Group,
Inc, as guarantor.


 


Section 1.2                                      Other Terms.


 


All accounting terms not
defined herein shall have the respective meanings given to them under GAAP
consistently applied.  To the extent that
the definitions of accounting terms in this Agreement are inconsistent with the
meanings of such terms under GAAP or regulatory principles, the definitions
contained in this Agreement or in any certificate or other document shall
control.


 


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Section 1.3                                      Computation of
Time Periods.


 


Unless otherwise stated in
this Agreement, in the computation of a period of time from a specified date to
a later specified date, the word “from” means “from and including” and the
words “to” and “until” each means “to but excluding.”


 


Section 1.4                                      Statutory
References.


 


References in this Agreement
to any section of the UCC shall mean, on or after the effective date of
adoption of any revision to the UCC in the applicable jurisdiction, such
revised or successor section thereto.


 


ARTICLE II



PURCHASE OF THE NOTES


 


Section 2.1                                      Sale and
Delivery of the Notes.


 


(a)                                  On the basis of
the representations and warranties and subject to the terms and conditions set
forth herein and in the other Transaction Documents, the Issuer agrees to
deliver on the Closing Date, to each of the Persons set forth on Schedule 2, a
Note with a maximum aggregate principal amount of up to the amount set forth
opposite such Person’s name on Schedule 2. 
The Notes shall be duly executed by the Issuer, duly authenticated by
the Indenture Trustee and registered in the name of each of the Persons set
forth on Schedule 2 or its nominee.  In
connection with any transfer of a Note made in accordance with Section 202
of the Supplement (including the related Series 2009-1 Note Existing
Commitment), the Issuer agrees to deliver a Note in the name of such transferee
or its nominee on behalf of such transferee in the maximum aggregate principal
amount determined pursuant to the related Assignment and Acceptance.  Any such assignment of a Series 2009-1
Note and all or a portion of the Series 2009-1 Existing Commitment of a Series 2009-1
Noteholder may be effected by the execution and delivery to the Issuer and the
Indenture Trustee of an Assignment and Assumption Agreement.  The actual unpaid principal balance of the
Notes will be increased and decreased from time to time in accordance with the
terms hereof, the Supplement and the Indenture.


 


(b)                                 The Issuer may
request (each such request to be substantially in the form of Exhibit A
hereto, a “Funding Notice”), by delivery of a Funding Notice to the
Administrative Agent that the Purchasers make a Series 2009-1 Advance,
each such Funding Notice to be irrevocable when given and shall be on the terms
and conditions set forth herein and in Section 205(b) of the
Supplement.


 


(c)                                  The Issuer may,
within 60 days, but no later than 45 days (or such shorter period as may be
approved by the parties hereto), prior to the then current Scheduled Commitment
Expiration Date, by written notice to each Deal Agent, with a copy to the
Indenture Trustee and the Series Enhancer, if any, for Series 2009-1,
request the Purchasers to extend the Scheduled Commitment Expiration Date for
an additional period of up to 364 days from the then current Scheduled
Commitment Expiration Date.  Each of the
Purchasers shall make a determination, in its sole discretion and after a full
credit review, within 30 days of its receipt of the Issuer’s request, as to
whether or not it will agree to extend the Scheduled Commitment Expiration
Date; 


 


3

















 


provided,
however, that the failure of any Purchaser to make a timely
response to the Issuer’s request for extension of the Scheduled Commitment
Expiration Date shall be deemed to constitute a refusal by such Purchasers to
extend the Scheduled Commitment Expiration Date.  Any such renewal shall become effective only
upon written confirmation to the Issuer by each Deal Agent on behalf of the
consenting Purchaser of its agreement to so renew, upon receipt by each Deal
Agent of any fees required to be paid in connection with such renewal, and
receipt by the Issuer and such Deal Agent of the written consent of the Series Enhancer
for Series 2009-1, if any, to such extension of the Scheduled Commitment
Expiration Date.


 


Section 2.2                                      Acceptance and
Custody of Notes.


 


On the Closing Date, each
Deal Agent shall take delivery of the applicable Note and maintain custody
thereof on behalf of its related Purchaser.


 


Section 2.3                                      Increase/Reduction
of the Series 2009-1 Note Existing Commitment.


 


(a)                                  The Issuer may,
upon at least 30 days’ written notice to each Purchaser and the Administrative
Agent, with a copy to the Indenture Trustee, terminate in whole, or reduce in
part, the then unused Series 2009-1 Note Existing Commitment of each Series 2009-1
Noteholder; provided, however,
that each partial reduction of the Series 2009-1 Note Existing Commitment
shall be in amounts equal to $10,000,000 or an integral multiple of $1,000,000
in excess thereof and shall be allocated pro
rata among the Notes (based on the then current Series 2009-1
Note Existing Commitment of each Series 2009-1 Noteholder of each such
Note).  Each notice of reduction or
termination pursuant to this Section 2.3 shall be irrevocable.  Notwithstanding the foregoing, the Issuer may
on any Business Day reduce to zero and terminate the Series 2009-1 Note
Existing Commitment in connection with a refinancing of the Notes upon (a) at
least five (5) Business Days prior written notice to the Administrative
Agent, with a copy to the Indenture Trustee, specifying the proposed Payment
Date of such termination, and (b) payment in full of (i) the
principal of, and interest on, the Notes and (ii) Breakage Costs, if any,
and all other Outstanding Obligations of the Issuer under the Supplement and
this Agreement.


 


(b)                                 During the
period commencing on the Closing Date and ending on September 15, 2010,
the Issuer may deliver an Increase Notice delivered to Administrative Agent and
the Indenture Trustee on not more than one (1) occasion, requesting that
the Series 2009-1 Note Existing Commitment of Wachovia Bank, National
Association be increased by an aggregate amount not to exceed Twenty-Five
Million Dollars ($25,000,000); provided, however,
that the Issuer may deliver such Increase Notice only if (i) the Wachovia
Bank/TICC Repurchase Facility is permanently terminated and all amounts owing
thereunder have been fully repaid by TAL International Container Corporation
and (ii) no Early Amortization Event or Event of Default (or any event or
condition which, but for the existence of any cure period applicable thereto,
would otherwise constitute an Early Amortization Event or Event of Default)
shall then have occurred and be continuing. 
Such increase shall be accomplished by (a) increasing the
commitment of Wachovia Bank, National Association by such incremental amount
and (b) by issuing to Wachovia Bank, National Association an additional Series 2009-1
Notes in an amount agreed to by any such incremental commitment.  Any such increase in the aggregate Series 2009-1
Note Existing Commitment of Wachovia Bank, National Association made in
accordance with this Section 2.3(b) shall be effective three (3) Business
Days after the date on which Issuer has 


 


4

















 


delivered the Increase
Notice to the Administrative Agent, the Indenture Trustee and Wachovia Bank,
National Association.


 


(c)                                  The Issuer may,
by means of a letter delivered to Administrative Agent and the Indenture
Trustee on not more than five (5) occasions prior to the Conversion Date,
request that the aggregate Series 2009-1 Note Existing Commitments be
increased by an aggregate amount not to exceed Seventy Million Dollars
($70,000,000), by issuing additional Series 2009-1 Notes to one or more
commercial banks, finance companies or other Persons (each an “Additional Series 2009-1
Noteholder”) with a Series 2009-1 Note Existing Commitment in an amount
agreed to by any such Additional Series 2009-1 Noteholder.


 


Section 2.4                                      Payments,
Computations, Etc.


 


(a)                                  Unless
otherwise expressly provided herein, in the Indenture or the Supplement, all
amounts to be paid or deposited by the Issuer hereunder shall be paid or
deposited in accordance with the terms hereof no later than 11:00 a.m.
(New York time) on the day when due in lawful money of the United States in
immediately available funds to the applicable [Deal Agent’s Account].  The Issuer shall, to the extent permitted by
law, pay to the Series 2009-1 Noteholders interest on all amounts not paid
or deposited when due on the Notes at the Default Rate, payable on demand, but
only to the extent provided in Sections 203(b) and 203(c) of the
Supplement.  Such interest shall be
retained by the Deal Agents except, in each case, to the extent that such
failure to make a timely payment or deposit has continued beyond the date for
distribution by the Deal Agents of such overdue amount to the related Series 2009-1
Noteholders, in which case such interest accruing after such date shall be for
the account of, and distributed by the Deal Agents to, such related Series 2009-1
Noteholders.  All computations of
interest and other fees hereunder shall be made on the basis of a year of 360
days (or, in the case of interest calculated at the Base Rate, 365 or 366 days,
as applicable) for the actual number of days (including the first but excluding
the last day) elapsed.


 


(b)                                 Whenever any
payment hereunder shall be stated to be due on a day other than a Business Day,
such payment shall be made on the next Business Day, and such extension of time
shall in such case be included in the computation of payment of any interest or
any fee payable hereunder, as the case may be.


 


ARTICLE III



CONDITIONS OF PURCHASE


 


Section 3.1                                      Conditions
Precedent to Initial Purchase.


 


The initial Purchase
hereunder is subject to the satisfaction, on or before the date of such
purchase, as determined by the initial Purchaser, of each condition precedent
listed in Schedule 1 hereto and Section 501 of the Supplement.


 


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Section 3.2                                      Conditions
Precedent to Each Series 2009-1 Advance.


 


Each Series 2009-1
Advance (including the initial Series 2009-1 Advance) from the Issuer
shall be subject to the satisfaction of the conditions precedent listed in Section 502
of the Supplement.


 


ARTICLE IV



REPRESENTATIONS AND WARRANTIES


 


Section 4.1                                      Representations
and Warranties of the Issuer.


 


The Issuer represents and
warrants to the Deal Agents and the Purchasers as follows:


 


(1)                                  Information.  No information, exhibit, financial statement,
document, book, record or report furnished or to be furnished by it to a Deal
Agent or a Purchaser in writing (i) is or will be inaccurate in any
material respect as of the date it is or shall be dated or (except as otherwise
disclosed to the recipient thereof at the time of delivery or thereafter) as of
the date so furnished and (ii) no such document contains or will contain
any material misstatement of fact or omits or shall omit to state a material
fact necessary to make the statements contained therein not misleading in light
of the statements made therein, in each case as of the date it is or shall be
dated or (except as otherwise disclosed to the recipient thereof at the time of
delivery or thereafter) as of the date so furnished.


 


(2)                                  Accuracy of
Representations and Warranties.  Each representation and warranty made by it
contained herein or in any certificate or other document furnished by it
pursuant hereto or to any Series 2009-1 Transaction Document or in
connection herewith or therewith is true and correct in all material respects
as of the date made by it.


 


(3)                                  Offer and Sale.  Neither the Issuer nor any Person acting on
its behalf has offered to sell the Notes by any form of general solicitation or
general advertising.  The Issuer has not
offered or sold the Notes or other similar security in any manner that would
render the issuance and sale of the Notes a violation of the Securities Act,
require registration pursuant thereto, nor has it authorized nor will it
authorize any person to act in such manner.


 


(4)                                  OFAC.  The Issuer (i) is a “U.S. Person” within
the meaning of laws, rules and regulations promulgated, imposed or
monitored by OFAC, and (ii) does not derive any of its assets or revenues
from investments in, or transactions with, Sanctioned Persons.


 


Section 4.2                                      Representations,
Warranties and Agreements of the Purchasers.


 


Each Purchaser hereby
represents and warrants to, and agrees with, the Issuer that:


 


(1)                                  The Purchaser
understands that the Note purchased by it has not been registered under the
Securities Act or the securities laws of any State and, if the Note is not then
registered under applicable federal and State securities law (which
registration the Issuer is not obligated to effect), it will not offer to sell,
transfer or otherwise dispose of the Note or any portion thereof except in a
transaction which is exempt from such registration.


 


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(2)                                  The Purchaser
is acquiring the Note for its own account, and not as a nominee for any other
Person, and the Purchaser is not acquiring the Note with a view to or for sale
or transfer in connection with any distribution of the Note under the
Securities Act, but subject, nevertheless, to the condition that all
dispositions of its property shall at all times be within its control.


 


(3)                                  The Purchaser
is an institutional “accredited investor” of the type described in clause (1) of
Section 501(a) of Regulation D under the Securities Act.


 


(4)                                  The Purchaser
is not acquiring the Note with the assets of a Benefit Plan Investor.


 


(5)                                  Neither the
Purchaser nor any Person acting on its behalf has offered to sell the Note by
any form of general solicitation or general advertising.  The Purchaser has not offered the Note in any
manner that would render the issuance and sale of the Note a violation of the
Securities Act, or require registration pursuant thereto, nor has it authorized
nor will it authorize any person to act in such manner.


 


ARTICLE V



GENERAL COVENANTS


 


Section 5.1                                      General
Covenants of the Issuer.


 


The Issuer hereby covenants
with each Deal Agent and the Purchasers as follows:


 


(1)                                  The Issuer
hereby agrees to notify the Deal Agents and the Series Enhancer, if any,
for Series 2009-1 as soon as possible, and in any event within five (5) days
after the earlier to occur of (i) actual knowledge and (ii) notice to
the Issuer, of (a) the occurrence of any Event of Default, (b) the
occurrence of any Early Amortization Event, (c) any fact, condition or
event which, with the giving of notice or the passage of time or both, could
become an Event of Default, (d) any fact, condition or event which, with
the giving of notice or the passage of time or both, could become an Early
Amortization Event, (e) the failure of the Issuer to observe any of its
material undertakings under the Series 2009-1 Transaction Documents or (f) any
change in the status or condition of the Issuer or the Manager that would
reasonably be expected to adversely affect the Issuer’s or the Manager’s
ability to perform its obligations under the Series 2009-1 Transaction Documents.


 


(2)                                  The Issuer
agrees not to sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in the Securities Act) that
would be integrated with the sale of the Note in a manner that would require
the registration under the Securities Act of the sale to any Purchaser of any
Note.


 


(3)                                  Any notice of
any voluntary Prepayment of the Notes made in accordance with the provisions of
Section 204(b) of the Supplement shall be irrevocable when given.


 


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ARTICLE VI



INDEMNIFICATION


 


Section 6.1                                      Indemnities by
the Issuer.


 


Without limiting any other
rights which the Deal Agents, the Purchasers or any of their respective
Affiliates, officers, directors, employees and/or agents thereof or their
respective successors and assigns may have hereunder or under applicable law,
the Issuer hereby agrees to indemnify each of the Deal Agents, the Purchasers
and each of their respective officers, directors, employees, counsel and agents
thereof (each, an “Indemnified Party”) from and against any and all
liabilities, losses, damages, costs and expenses (including reasonable and
documented, out-of-pocket costs of defense and legal fees and expenses) which
may be incurred or suffered by such Indemnified Party, except to the extent
caused by the gross negligence or willful misconduct of the Indemnified Party
(all of the foregoing being collectively referred to as “Indemnified Amounts”)
as a result of claims, actions, suits or judgments asserted or imposed against
an Indemnified Party and arising out of this Agreement and the Transaction
Documents or the transactions contemplated thereby or the ownership or security
interest in any Transferred Assets as contemplated herein including, without
limitation, as a result of (i) an action or inaction by the Issuer that is
contrary to the terms of this Agreement or any other Transaction Document to
which it is a party, (ii) a breach by the Issuer of any of its covenants
and agreements set forth in this Agreement or any other Transaction Document to
which it is a party, (iii) any information provided by the Issuer in
writing being untrue in any material respect as of the date provided, and (iv) any
representation or warranty of the Issuer proven to have been false or
misleading in any material respect when made or deemed made in this Agreement
or in any Transaction Document.


 


Promptly after receipt by an
Indemnified Party of notice of the assertion of a claim or the commencement of
a proceeding by a third party with respect to any matter referred to in this Section 6.1
which could be the subject of an indemnification claim against the Issuer
hereunder, such Indemnified Party shall give written notice thereof to the
Issuer and thereafter shall keep the Issuer reasonably informed with respect
thereto; provided, however, that failure of an Indemnified Party to give the
Issuer written notice as provided herein shall not relieve the Issuer of its
obligations hereunder unless the Issuer is materially and adversely prejudiced
thereby and, in any such instance, the indemnification obligation of the Issuer
to such Indemnified Party shall only be reduced by the amount of incremental
costs or losses to the Issuer related to the failure to deliver such notice in
a timely manner.  If any such proceeding
(including any litigation, arbitration or similar proceeding) shall be brought
against any Indemnified Party, the Issuer or the Manager shall be entitled to
assume the defense thereof at the Issuer’s or the Manager’s expense with
counsel chosen by the Issuer or the Manager and reasonably satisfactory to the
Indemnified Party; provided, however, that any Indemnified Party may at its own
expense retain separate counsel to participate in such defense.  The Issuer and the Manager shall not be
liable under this Article VI for any amount paid in settlement of such
claims or proceedings without the consent of the Issuer or the Manager unless
such consent is unreasonably withheld. 
All Indemnified Amounts shall be paid to the appropriate Indemnified
Party within 30 days after such Indemnified Party’s written demand for such
amount.


 


8

















 


Notwithstanding anything to
the contrary, the Issuer’s obligations to make payments under this Section 6.1
shall be limited solely to funds available from time to time for such purpose
pursuant to Section 302 or Section 806 of the Indenture and to the
extent they are not so paid, such obligations shall not constitute a “claim”
(as defined in Section 101(5) of the Bankruptcy Code) against the
Issuer.


 


ARTICLE VII



THE DEAL AGENT


 


Section 7.1                                      Authorization
and Securities Action.


 


Each Purchaser hereby
designates and appoints its related Deal Agent as a Deal Agent hereunder, and
authorizes its related Deal Agent to take such actions as agent on its behalf
and to exercise such powers as are delegated to the Deal Agents by the terms of
this Agreement together with such powers as are reasonably incidental
thereto.  Each Purchaser and each Deal
Agent shall not have any duties or responsibilities, except those expressly set
forth herein, or any fiduciary relationship with any Purchaser or any other
Deal Agent, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities on the part of a Purchaser or a Deal Agent shall be
read into this Agreement or otherwise exist for any Purchaser or any Deal
Agent.  In performing its functions and
duties hereunder, each Deal Agent shall act solely as agent for its related
Purchaser and does not assume nor shall be deemed to have assumed any
obligation or relationship of trust or agency with or for the Issuer or any of
its successors or assigns.  The Deal
Agents shall not be required to take any action which exposes the Deal Agents
to personal liability or which is contrary to this Agreement, any other Series 2009-1
Transaction Document or applicable law. 
The appointment and authority of the Deal Agents hereunder shall
terminate on the Collection Date.


 


Section 7.2                                      Delegation of
Duties.


 


Each Deal Agent may execute
any of its duties under this Agreement by or through agents or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties.  Each
Deal Agent shall not be responsible for the negligence or misconduct of any
agents or attorneys-in-fact selected by it with reasonable care.


 


Section 7.3                                      Exculpatory
Provisions.


 


The Deal Agents and any of
their respective directors, officers, agents or employees shall not be (i) liable
for any action lawfully taken or omitted to be taken by it or them under or in
connection with this Agreement (except for its, their or such Person’s own
gross negligence or willful misconduct) or (ii) responsible in any manner
to any of the Purchasers for any recitals, statements, representations or
warranties made by the Issuer contained in this Agreement or in any
certificate, report, statement or other document referred to or provided for
in, or received under or in connection with, this Agreement or for the value,
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other document furnished in connection herewith, or for any
failure of the Issuer to perform its obligations hereunder, or for the
satisfaction of any condition specified in Article III hereof.  The Deal Agents shall not be under 


 


9

















 


any
obligation to any Purchaser to ascertain or to inquire as to the observance or
performance of any of the agreements or covenants contained in, or conditions
of, this Agreement, or to inspect the properties, books or records of the
Issuer.  No Deal Agent shall be deemed to
have knowledge of any Event of Default or Early Amortization Event unless such
Deal Agent has received written notice to such effect from the Issuer, the
Indenture Trustee or a Purchaser.


 


Section 7.4                                      Reliance.


 


The Deal Agents shall in all
cases be entitled to rely, and shall be fully protected in relying, upon any
document or conversation believed by them to be genuine and correct and to have
been signed, sent or made by the proper Person or Persons and upon advice and
statements of legal counsel (including, without limitation, counsel to the
Issuer), independent accountants and other experts selected by the Deal
Agents.  The Deal Agents shall in all
cases be fully justified in failing or refusing to take any action under this
Agreement or any other document furnished in connection herewith unless it
shall first receive such advice or concurrence of the related Purchasers, as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Purchasers, provided that unless and until the Deal Agents shall have received
such advice, the Deal Agents may take or refrain from taking any action as such
Deal Agents shall deem advisable and in the best interests of the related
Purchasers.  The Deal Agents shall in all
cases be fully protected in acting, or refraining from acting, in accordance
with a request of the related Purchasers, and such request and any action taken
or failure to act pursuant thereto shall be binding upon all Purchasers.


 


Section 7.5                                      Non-Reliance on
Deal Agents and Other Purchasers.


 


Each Purchaser expressly
acknowledges that none of the Deal Agents or any of their respective officers,
directors, employees, agents, attorneys-in-fact or affiliates has made any
representations or warranties to it and that no act by the Deal Agents
hereafter taken, including, without limitation, any review of the affairs of
the Issuer, shall be deemed to constitute any representation or warranty by the
Deal Agents.  Each Purchaser represents
and warrants to the Deal Agents that it has made and will make, independently
and without reliance upon the Deal Agents or any other Purchaser and based on
such documents and information as it has deemed appropriate, its own appraisal
of and investigation into the business, operations, property, prospects,
financial and other conditions and creditworthiness of the Issuer and the
Manager and made its own decision to enter into this Agreement.


 


Section 7.6                                      Deal Agent in
its Individual Capacity.


 


Any of the Deal Agents and
their Affiliates may make loans to, accept deposits from and generally engage
in any kind of business with the Issuer or any Affiliate of the Issuer as
though the Deal Agents were not the Deal Agents hereunder.  With respect to the acquisition of the Notes
pursuant to this Agreement, each of the Deal Agents and their Affiliates shall
have the same rights and powers under this Agreement as any Purchaser and may
exercise the same as though it were not a Deal Agent and the terms “Purchaser”
and “Purchasers” shall include the Deal Agents in their individual capacity, if
any such Deal Agent shall become a Purchaser hereunder.


 


10

















 


Section 7.7                                      Successor Deal
Agent.


 


Each Deal Agent may, upon 5
days’ notice to the Issuer, the related Purchasers and the Series Enhancer,
if any, and each Deal Agent will, upon the direction of all of its related
Purchasers, resign as Deal Agent. If such Deal Agent shall resign, then the
Purchasers related to such Deal Agent during such 5-day period shall appoint
from among the applicable Purchasers a successor agent.  If for any reason no successor Deal Agent is
appointed during such 5-day period, then effective upon the termination of such
5-day period, the Purchasers related to such Deal Agent shall perform all of
the duties of a Deal Agent hereunder and the Issuer shall for all purposes deal
directly with such Purchasers.  After any
retiring Deal Agent’s resignation hereunder as Deal Agent, the provisions of Article VI
and Article VII hereof shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Deal Agent under this Agreement.  Any retiring Deal Agent shall provide prompt
written notice of its resignation hereunder to each Rating Agency.


 


ARTICLE VIII



MISCELLANEOUS


 


Section 8.1                                      Amendments and
Waivers.


 


(1)                                  No amendment,
waiver or modification of any provision of this Agreement shall be effective
without the written agreement of the Issuer, Purchasers representing in
aggregate more than fifty percent (50%) of the then aggregate Series 2009-1
Note Existing Commitment (or, if the Conversion Date has occurred, the then
Aggregate Series 2009-1 Principal Balance), the Deal Agents and, unless
such amendment or modification deals solely with the matters set forth in Article VII
hereof, the Control Party for Series 2009-1; provided, however,
that no such amendment, modification or waiver shall:


 


(a)                                  without consent
of each affected Purchaser and Deal Agent, (A) reduce the amount of any
fee payable to the Purchasers or the Deal Agents for the benefit of the
Purchasers, (B) consent to, or permit the assignment or transfer by the
Issuer of any of its rights and obligations under this Agreement, (C) amend
this Agreement in any way that would require the consent of each Noteholder
under Section 1002(a) of the Indenture, (D) extend the Scheduled
Commitment Expiration Date or, except as set forth in Section 2.3 hereof,
increase its Series 2009-1 Note Existing Commitment or (E) amend or
modify any defined term (or any defined term used directly or indirectly in
such defined term) used in clauses (A) through (D) above in a manner
which would circumvent the intention of the restrictions set forth in such
clauses; or


 


(b)                                 without the
written consent of each affected Deal Agent, amend, modify or waive any
provision of this Agreement if the effect thereof is to affect the rights or
duties of each such Deal Agent.


 


Any waiver or consent shall
be effective only in the specific instance and for the specific purpose for
which given.  Any modification or waiver
shall apply to each of the Purchasers equally and shall be binding upon the
Issuer, the Purchasers and the Deal Agents.


 


11

















 


(2)                                  The Deal Agents
shall provide prompt written notice of the nature of each amendment to this
Agreement, and shall, simultaneously therewith, deliver a copy of such
amendment to each Rating Agency.


 


Section 8.2                                      Notices, Etc.


 


All demands, notices and
communications hereunder shall be in writing, personally delivered, by
facsimile or PDF file (with subsequent telephone confirmation of receipt
thereof), or sent by internationally recognized overnight courier service, to
the addresses set forth on the signature pages hereto (and for the
Administrative Agent, to the address set forth in the Indenture) or at other
such address as shall be designated by such party in a written notice to the
other parties hereto.  Notice shall be
effective and deemed received (a) two days after being delivered to the
courier service, if sent by courier, (b) upon receipt of confirmation of
transmission, if sent by telecopy, or (c) when delivered, if delivered by
hand.


 


Section 8.3                                      No Waiver;
Remedies.


 


No failure on the part of a
Deal Agent or a Purchaser to exercise, and no delay in exercising, any right
hereunder shall operate as a waiver thereof; nor shall any single or partial
exercise of any right hereunder preclude any other or further exercise thereof
or the exercise of any other right.  The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.


 


Section 8.4                                      Binding Effect.


 


This Agreement shall be
binding upon and inure to the benefit of the Issuer, the Deal Agents, the
Purchasers and their respective successors and permitted assigns.


 


Section 8.5                                      Term of this
Agreement.


 


This Agreement, including,
without limitation, the Issuer’s obligations to observe its covenants and
agreements set forth herein, shall remain in full force and effect until the
Collection Date; provided, however,
that the obligations of the Issuer under the indemnification and payment
provisions of Article VI and the provisions of Section 8.9 and Section 8.10
and the agreements of the parties contained in Sections 8.6, 8.7, 8.8 and 8.12
shall be continuing and shall survive any termination of this Agreement.


 


Section 8.6                                      GOVERNING LAW.


 


THIS AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK, INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW BUT
OTHERWISE WITHOUT GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW, AND THE
RIGHTS, OBLIGATIONS AND REMEDIES OF THE PARTIES HERETO SHALL BE DETERMINED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK .


 


12

















 


Section 8.7                                      WAIVER OF JURY
TRIAL; CONSENT TO JURISDICTION.


 


(1)                                  TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO WAIVES ANY RIGHT TO
HAVE A JURY PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT,
TORT, OR OTHERWISE BETWEEN THE PARTIES HERETO ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP BETWEEN ANY OF THEM IN CONNECTION
WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.  INSTEAD, ANY SUCH DISPUTE RESOLVED IN COURT
WILL BE RESOLVED IN A BENCH TRIAL WITHOUT A JURY.


 


(2)                                  THE PARTIES
HERETO HEREBY IRREVOCABLY SUBMIT TO THE NONEXCLUSIVE JURISDICTION OF ANY UNITED
STATES FEDERAL OR STATE COURT LOCATED IN THE COUNTY OF NEW YORK, SOLELY FOR THE
PURPOSES OF ANY ACTION, SUIT OR PROCEEDING BROUGHT AGAINST IT AND TO OR IN
CONNECTION WITH THIS AGREEMENT ANY OF THE SERIES 2009-1 TRANSACTION DOCUMENTS
OR THE TRANSACTIONS CONTEMPLATED THEREUNDER OR FOR RECOGNITION OR ENFORCEMENT
OF ANY JUDGMENT, AND THE PARTIES HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY
AGREE THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE
HEARD OR DETERMINED IN ANY SUCH COURT. 
IN THE EVENT THAT ANY SUCH ACTION, SUIT OR PROCEEDING IS BROUGHT IN A
STATE COURT, THE PARTIES WILL SEEK ASSIGNMENT TO THE COMMERCIAL PART OF
SAID COURT.  THE PARTIES HERETO AGREE
THAT A FINAL JUDGMENT IN ANY SUCH ACTION, SUIT OR PROCEEDING SHALL BE
CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE
JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.  TO THE EXTENT PERMITTED BY APPLICABLE LAW,
THE PARTIES HERETO HEREBY WAIVE AND AGREE NOT TO ASSERT BY WAY OF MOTION, AS A
DEFENSE OR OTHERWISE IN ANY SUCH SUIT, ACTION OR PROCEEDING, ANY CLAIM THAT IS
NOT PERSONALLY SUBJECT TO THE JURISDICTION OF SUCH COURTS, THAT THE SUIT,
ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM, THAT THE VENUE OF THE
SUIT, ACTION OR PROCEEDING IS IMPROPER OR THAT THE SERIES 2009-1 TRANSACTION
DOCUMENTS OR THE SUBJECT MATTER THEREOF MAY NOT BE LITIGATED IN OR BY SUCH
COURTS.


 


(3)                                  TO THE EXTENT
PERMITTED BY APPLICABLE LAW, THE PARTIES HERETO SHALL NOT SEEK AND HEREBY WAIVE
THE RIGHT TO ANY REVIEW OF THE JUDGMENT OF ANY SUCH COURT BY ANY COURT OF ANY
OTHER NATION OR JURISDICTION WHICH MAY BE CALLED UPON TO GRANT AN
ENFORCEMENT OF SUCH JUDGMENT.


 


Section 8.8                                      Inspection
Rights, Costs, Expenses and Taxes.


 


In addition to the rights of
indemnification granted to the Deal Agents, the Purchasers and their respective
Affiliates under Article VI hereof, the Issuer agrees to pay on demand all
costs and expenses incurred by a Purchaser, a Deal Agent and their respective
Affiliates, 


 


13

















 


successors
or assigns, with respect to enforcing their respective rights and remedies as against
the Issuer under this Agreement, the Indenture, any Note, any other Series 2009-1
Transaction Document and the other documents to be delivered hereunder or in
connection herewith; provided, however, that none of the Deal Agents, any
Purchaser or any Affiliate thereof shall be entitled to any such payment (and
shall reimburse the Issuer for any such payments previously received) if such
person has been determined by a court of competent jurisdiction to not be
entitled to receive indemnification pursuant to Article VI hereof in
connection with such enforcement.  The
Issuer also agrees to pay on demand all costs and expenses of the Purchasers
and the Deal Agents, and their respective Affiliates, successors or assigns, if
any (including reasonable and documented counsel fees and expenses), incurred
in connection with the negotiation, execution, and delivery of this Agreement
and the transactions contemplated hereby, any removal of the Manager or the
enforcement, administration (including periodic auditing), amendment or
modification of, or any waiver or consent issued in connection with, this
Agreement, the Series 2009-1 Transaction Documents and the other documents
to be delivered hereunder, including, without limitation, the reasonable and
documented fees and out-of-pocket expenses of counsel for the Purchasers and
the Deal Agents with respect thereto and with respect to advising the
Purchasers and the Deal Agents as to their rights and remedies under this
Agreement, the Series 2009-1 Transaction Documents and the other
agreements executed pursuant hereto; provided, however, that the Issuer’s
obligation to pay any such costs or expenses incurred in connection with the
ongoing inspection of the books and records of the Issuer will be subject to
such limitations and conditions as are set forth in Section 1304 of the
Indenture.  Any amounts subject to the
provisions of this Section 8.8 shall be paid by the Issuer to the
applicable Deal Agent on the Payment Date immediately following such Deal Agent’s
demand therefor.  Notwithstanding
anything to the contrary, the Issuer’s obligations to make payments under this Section 8.8
shall be limited solely to funds available from time to time for such purpose
pursuant to Section 302 or Section 806 of the Indenture and to the
extent they are not so paid, such obligations shall not constitute a “claim”
(as defined in Section 101(5) of the Bankruptcy Code) against the
Issuer.


 


Section 8.9                                      No Proceedings.


 


Notwithstanding any prior
termination of this Agreement, each Deal Agent and Purchaser agrees that it
shall not, with respect to the Issuer, institute or join any other Person in
instituting any proceeding of the type referred to in the definition of “Bankruptcy
Event” against or with respect to the Issuer or so long as any Outstanding
Obligation shall be unpaid and there shall not have elapsed one year plus one
day since the last day on which any such Outstanding Obligation shall have been
unpaid.  The foregoing shall not limit
the right of any such Person to file any claim in or otherwise take any action
with respect to any such proceeding that was instituted against Issuer by any
Person other than any Deal Agent and the Purchaser.  In addition, each Deal Agent and the
Purchaser agrees that all amounts owed to it by Issuer shall be payable solely
from amounts that become available for such payment pursuant to the Series 2009-1
Transaction Documents, and no such amounts shall constitute a claim (as defined
in Section 101(5) of the Bankruptcy Code) against Issuer to the
extent that they are in excess of the amounts available for their payment.


 


“Bankruptcy Event” means,
for any Person, any of the following events:


 


14

















 


(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 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 days;
or any 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, or


 


(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 the like, for such Person or any
substantial part of its property, or shall make any general assignment for the
benefit of creditors, or shall fail to, or admit in writing its inability to,
pay its debts generally as they become due.


 


Section 8.10                                Recourse
Against Certain Parties.


 


No recourse under or with
respect to any obligation, covenant or agreement, (including, without
limitation, the payment of any fees or any other obligations) of any of the
Issuer, any Purchaser or any Deal Agent as contained in this Agreement or any
other agreement, instrument or document entered into by it pursuant hereto or
in connection herewith shall be had against any administrator of such party or
any incorporator, affiliate, stockholder, member, manager, officer, employee or
director of such party or of any such administrator, as such, by the
enforcement of any assessment or by any legal or equitable proceeding, by
virtue of any statute or otherwise; it being expressly agreed and understood
that the agreements of such party contained in this Agreement and all of the
other agreements, instruments and documents entered into by it pursuant hereto
or in connection herewith are, in each case, solely the corporate obligations
of such party, and that no personal liability whatsoever shall attach to or be
incurred by any administrator of such party or any incorporator, stockholder,
member, manager, affiliate, officer, employee or director of such party or of
any such administrator, as such, or any of them, under or by reason of any of
the obligations, covenants or agreements of such party contained in this
Agreement or in any other such instruments, documents or agreements, or which
are implied therefrom, and that any and all personal liability of every such
administrator of such party and each incorporator, stockholder, member,
manager, affiliate, officer, employee or director of such party or of any such
administrator, or any of them, for breaches by such party of any such
obligations, covenants or agreements which liability may arise either at common
law or at equity, by statute or constitution, or otherwise, is hereby expressly
waived as a condition of and in consideration for the execution of this
Agreement.


 


Section 8.11                                Ratable
Payments.


 


If any Purchaser, whether by
setoff or otherwise, has payment made to it with respect to any portion of any
amount of the principal amount of any Note or other amount owing to such Purchaser
(other than payments received pursuant to Article VI) in a greater
proportion than that 


 


15

















 


received
by any other Purchaser, such Purchaser agrees, promptly upon demand, to pay to
the Deal Agent, for distribution ratably to all other Purchasers, the amount of
such excess such that all Purchasers shall receive their ratable portion of
such payment.


 


Section 8.12                                Confidentiality.


 


(1)                                  Each of the
Deal Agents, the Purchasers and the Issuer shall maintain and shall cause each
of its employees and officers to maintain the confidentiality of this Agreement
and the other confidential proprietary information with respect to the other
parties hereto and their respective businesses obtained by it or them in connection
with the structuring, negotiating and execution of the transactions
contemplated herein, except that each such party and its officers and employees
may (i) disclose such information to any prospective assignees or
participants and to its external accountants and attorneys and as required by
law, applicable accounting requirements or order of any judicial or
administrative proceeding and (ii) disclose the existence of this
Agreement, but not the financial terms thereof.


 


(2)                                  Anything herein
to the contrary notwithstanding, the Issuer hereby consents to the disclosure
of any nonpublic information with respect to it (i) to the Deal Agents or
a Purchaser by each other,  or (ii) by
a Deal Agent or the Purchasers to any prospective or actual assignee or participant
of any of them, provided each such Person is informed of the confidential
nature of such information and agrees to keep such information confidential
pursuant to the terms of this Section 8.12.  In addition, the Purchasers and the Deal
Agents may disclose any such nonpublic information pursuant to any law, rule,
regulation, direction, request or order of any judicial, administrative or
regulatory authority or proceedings (whether or not having the force or effect
of law).


 


Section 8.13                                Execution in Counterparts;
Severability; Integration.


 


This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which when taken together shall constitute one and the same
agreement.  Execution and delivery of
this Agreement by facsimile signature shall constitute execution and delivery
of this Agreement for all purposes hereof with the same force and effect as
execution and delivery of a manually signed copy hereof.  In case any provision in or obligation under
this Agreement shall be invalid, illegal or unenforceable in any jurisdiction,
the validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction,
shall not in any way be affected or impaired thereby.  This Agreement contains the final and
complete integration of all prior expressions by the parties hereto with
respect to the subject matter hereof and shall constitute the entire agreement
among the parties hereto with respect to the subject matter hereof, superseding
all prior oral or written understandings.


 


[Signature pages follow.]


 


16














 


IN WITNESS WHEREOF, the
parties have caused this Agreement to be executed as of the date first above
written.


 


	
  THE ISSUER:

  	
  TAL ADVANTAGE III LLC

  
	
   

  	
   

  	
  By: TAL International Container Corporation, its manager

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  100 Manhattanville Road

  
	
   

  	
  Purchase, New York  10577-2135

  
	
   

  	
  Attn: Jeffrey Casucci

  
	
   

  	
  Email: jeffrey.casucci@talinternational.com

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  With a copy to:

  
	
   

  	
   

  
	
   

  	
  TAL International Container Corporation

  
	
   

  	
  100 Manhattanville Road

  
	
   

  	
  Purchase, New York  10577-2135

  
	
   

  	
  Attn: Jeffrey Casucci, Vice President and Treasurer

  
	
   

  	
  Fax: 914 697 2526

  
					



 


SERIES 2009-1 NOTE PURCHASE AGREEMENT


 

















 


	
  THE PURCHASER:

  	
  WACHOVIA BANK, NATIONAL ASSOCIATION, as Purchaser 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


SERIES
2009-1 NOTE PURCHASE AGREEMENT


 

















 


	
  THE DEAL AGENT:

  	
  WELLS FARGO SECURITIES, LLC, as Wachovia Deal Agent 

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  



 


SERIES
2009-1 NOTE PURCHASE AGREEMENT


 

















 


SCHEDULE 1


CONDITIONS PRECEDENT TO INITIAL
PURCHASE


 


As required by Section 3.1
of this Agreement, each of the following items must be delivered to the initial
Purchaser prior to the date of the initial Purchase:


 


(1)           The Notes shall have been duly authorized, executed and
delivered by the Issuer and authenticated by the Indenture Trustee.


 


(2)           A copy of this Agreement, duly executed by the Issuer and
all other parties thereto.


 


(3)           A certificate of the Secretary or Assistant Secretary of
the Issuer dated the Closing Date, certifying (i) the names and true
signatures of its respective incumbent officers authorized to sign this
Agreement and the other documents to be delivered by it hereunder (on which
certificate and the initial Purchaser may conclusively rely until such time as
the initial Purchaser shall receive from the Issuer a revised certificate
meeting the requirements of this paragraph (3)), (ii) that copies of its
charter documents attached thereto are complete and correct copies and that
such charter documents have not been amended, modified or supplemented and are
in full force and effect, (iii) that the copy of its limited liability
company agreement attached thereto is a complete and correct copy and that such
limited liability company agreement has not been amended, modified or
supplemented and are in full force and effect and (iv) the resolutions of
its board of directors approving and authorizing the execution, delivery and
performance by it of this Agreement and the documents related hereto and
thereto.


 


(4)           Good standing certificate for the Issuer from the
Secretary of State of Delaware.


 


(5)           Copies of the Indenture, and all other Series 2009-1
Transaction Documents (other than this Agreement), in form and substance
satisfactory to the initial Purchaser, each duly executed and delivered by each
party thereto.


 


(6)           Copies of all certificates and opinions of counsel
delivered pursuant to or in connection with the execution and delivery of the
other Series 2009-1 Transaction Documents, which shall be in form and
content satisfactory to and each addressed to the initial Purchaser.


 


(7)           An officer’s certificate of a responsible officer of the
Issuer to the effect that each of the conditions to the initial Purchase
hereunder has been satisfied.


 


(8)           An opinion of counsel to the Indenture Trustee as to the
due organization of the Indenture Trustee, the enforceability of the Indenture
and as to such other matters as the initial Purchaser may reasonably request.


 


(9)           All fees and expenses required by this Agreement and the
other documents to be delivered hereunder or in connection herewith to be paid
on or before the Closing Date.


 


(10)         Each of the other conditions precedent, documents,
certifications and opinions required to be satisfied or provided pursuant to
the Indenture.


 

















 


SCHEDULE 2


 


PURCHASE LIMITS


 


	
  Purchaser

  	
   

  	
  Purchase Limit

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Wachovia Bank, National
  Association

  	
   

  	
  $

  	
  75,000,000

  	
   

  
					



 


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