EXHIBIT 4.31


 


TAL ADVANTAGE III LLC


Issuer


 


and


 


WELLS FARGO BANK, NATIONAL ASSOCIATION, 


Indenture Trustee


 










 


INDENTURE


 


Dated as of October 23,
2009


 






 


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  I

  	
  DEFINITIONS

  	
  3

  
	
   

  	
   

  	
   

  
	
  Section 101.

  	
  Defined Terms

  	
  3

  
	
  Section 102.

  	
  Other Definitional
  Provisions

  	
  3

  
	
  Section 103.

  	
  Computation of Time
  Periods

  	
  3

  
	
  Section 104.

  	
  Duties of
  Administrative Agent

  	
  3

  
	
  Section 105.

  	
  General Interpretive
  Principles

  	
  4

  
	
  Section 106.

  	
  Statutory References

  	
  4

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  II

  	
  THE NOTES

  	
  4

  
	
   

  	
   

  	
   

  
	
  Section 201.

  	
  Authorization of Notes

  	
  4

  
	
  Section 202.

  	
  Form of Notes;
  Global Notes

  	
  5

  
	
  Section 203.

  	
  Execution; Recourse
  Obligation

  	
  6

  
	
  Section 204.

  	
  Certificate of
  Authentication

  	
  7

  
	
  Section 205.

  	
  Registration;
  Registration of Transfer and Exchange of Notes

  	
  7

  
	
  Section 206.

  	
  Mutilated Destroyed,
  Lost and Stolen Notes

  	
  10

  
	
  Section 207.

  	
  Delivery, Retention and
  Cancellation of Notes

  	
  10

  
	
  Section 208.

  	
  ERISA Deemed
  Representations

  	
  11

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  III

  	
  PAYMENT OF NOTES;
  STATEMENTS TO NOTEHOLDERS

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 301.

  	
  Principal and Interest

  	
  11

  
	
  Section 302.

  	
  Trust Account

  	
  11

  
	
  Section 303.

  	
  Investment of Monies
  Held in the Trust Account, the Restricted Cash Account, and
  Series Accounts; Control over Eligible Investments

  	
  17

  
	
  Section 304.

  	
  Reports to Noteholders

  	
  19

  
	
  Section 305.

  	
  Records

  	
  19

  
	
  Section 306.

  	
  Restricted Cash Account

  	
  19

  
	
  Section 307.

  	
  CUSIP Numbers

  	
  20

  
	
  Section 308.

  	
  No Claim

  	
  20

  
	
  Section 309.

  	
  Compliance with
  Withholding Requirements

  	
  20

  
	
  Section 310.

  	
  Tax Treatment of Notes

  	
  20

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IV

  	
  COLLATERAL

  	
  21

  
	
   

  	
   

  	
   

  
	
  Section 401.

  	
  Collateral

  	
  21

  
	
  Section 402.

  	
  Pro Rata Interest

  	
  21

  
	
  Section 403.

  	
  Indenture Trustee’s
  Appointment as Attorney-in-Fact

  	
  22

  
	
  Section 404.

  	
  Release of Security
  Interest

  	
  23

  
	
  Section 405.

  	
  Administration of
  Collateral

  	
  23

  
	
  Section 406.

  	
  Quiet Enjoyment

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  V

  	
  RIGHTS OF NOTEHOLDERS;
  ALLOCATION AND APPLICATION OF COLLECTIONS; REQUISITE GLOBAL MAJORITY

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 501.

  	
  Rights of Noteholders

  	
  25

  
	
  Section 502.

  	
  Collections and
  Allocations

  	
  25

  
	
  Section 503.

  	
  Determination of
  Requisite Global Majority

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VI

  	
  COVENANTS

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 601.

  	
  Payment of Principal
  and Interest; Payment of Taxes

  	
  26

  



 


i

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 602.

  	
  Maintenance of Office

  	
  26

  
	
  Section 603.

  	
  Corporate Existence

  	
  26

  
	
  Section 604.

  	
  Protection of
  Collateral

  	
  27

  
	
  Section 605.

  	
  Performance of
  Obligations

  	
  27

  
	
  Section 606.

  	
  Negative Covenants

  	
  28

  
	
  Section 607.

  	
  Corporate Separateness
  of the Issuer

  	
  29

  
	
  Section 608.

  	
  No Bankruptcy Petition

  	
  30

  
	
  Section 609.

  	
  Liens

  	
  30

  
	
  Section 610.

  	
  Other Debt

  	
  30

  
	
  Section 611.

  	
  Guarantees, Loans,
  Advances and Other Liabilities

  	
  30

  
	
  Section 612.

  	
  Consolidation, Merger
  and Sale of Assets

  	
  30

  
	
  Section 613.

  	
  Other Agreements;
  Amendment of Transaction Documents

  	
  30

  
	
  Section 614.

  	
  Charter Documents

  	
  31

  
	
  Section 615.

  	
  Capital Expenditures

  	
  31

  
	
  Section 616.

  	
  Permitted Activities;
  Compliance with Organizational Documents

  	
  31

  
	
  Section 617.

  	
  Investment Company Act

  	
  31

  
	
  Section 618.

  	
  Payments of Collateral

  	
  31

  
	
  Section 619.

  	
  Notices

  	
  31

  
	
  Section 620.

  	
  Books and Records

  	
  32

  
	
  Section 621.

  	
  Subsidiaries

  	
  32

  
	
  Section 622.

  	
  Investments

  	
  32

  
	
  Section 623.

  	
  Use of Proceeds

  	
  32

  
	
  Section 624.

  	
  Asset Base Certificate

  	
  32

  
	
  Section 625.

  	
  Financial Statements

  	
  32

  
	
  Section 626.

  	
  UNIDROIT Convention

  	
  33

  
	
  Section 627.

  	
  Other Information

  	
  33

  
	
  Section 628.

  	
  Hedging Requirement

  	
  33

  
	
  Section 629.

  	
  Ownership of Issuer

  	
  34

  
	
  Section 630.

  	
  Intentionally Omitted.

  	
  34

  
	
  Section 631.

  	
  Tax Election of the
  Issuer

  	
  34

  
	
  Section 632.

  	
  Rating Agency Notices

  	
  34

  
	
  Section 633.

  	
  Compliance with Law

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VII

  	
  DISCHARGE OF INDENTURE;
  PREPAYMENTS

  	
  35

  
	
   

  	
   

  	
   

  
	
  Section 701.

  	
  Full Discharge

  	
  35

  
	
  Section 702.

  	
  Prepayment of Notes

  	
  35

  
	
  Section 703.

  	
  Unclaimed Funds

  	
  36

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  VIII

  	
  DEFAULT PROVISIONS AND
  REMEDIES

  	
  36

  
	
   

  	
   

  	
   

  
	
  Section 801.

  	
  Event of Default

  	
  36

  
	
  Section 802.

  	
  Acceleration of Stated
  Maturity; Rescission and Annulment

  	
  40

  
	
  Section 803.

  	
  Collection of
  Indebtedness

  	
  41

  
	
  Section 804.

  	
  Remedies

  	
  41

  
	
  Section 805.

  	
  Indenture Trustee
  May Enforce Claims Without Possession of Notes

  	
  42

  
	
  Section 806.

  	
  Allocation of Money
  Collected

  	
  42

  
	
  Section 807.

  	
  Limitation on Suits

  	
  44

  



 


ii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 808.

  	
  Unconditional Right of
  Noteholders to Receive Principal, Interest and Commitment Fees

  	
  45

  
	
  Section 809.

  	
  Restoration of Rights
  and Remedies

  	
  45

  
	
  Section 810.

  	
  Rights and Remedies
  Cumulative

  	
  45

  
	
  Section 811.

  	
  Delay or Omission Not
  Waiver

  	
  45

  
	
  Section 812.

  	
  Control by Requisite
  Global Majority

  	
  45

  
	
  Section 813.

  	
  Waiver of Past Defaults

  	
  46

  
	
  Section 814.

  	
  Undertaking for Costs

  	
  46

  
	
  Section 815.

  	
  Waiver of Stay or
  Extension Laws

  	
  46

  
	
  Section 816.

  	
  Sale of Collateral

  	
  46

  
	
  Section 817.

  	
  Action on Notes

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  IX

  	
  CONCERNING THE
  INDENTURE TRUSTEE

  	
  47

  
	
   

  	
   

  	
   

  
	
  Section 901.

  	
  Duties of the Indenture
  Trustee

  	
  47

  
	
  Section 902.

  	
  Certain Matters
  Affecting the Indenture Trustee

  	
  48

  
	
  Section 903.

  	
  Indenture Trustee Not
  Liable

  	
  49

  
	
  Section 904.

  	
  Indenture Trustee
  May Own Notes

  	
  50

  
	
  Section 905.

  	
  Indenture Trustee’s
  Fees and Expenses

  	
  50

  
	
  Section 906.

  	
  Eligibility
  Requirements for the Indenture Trustee

  	
  51

  
	
  Section 907.

  	
  Resignation and Removal
  of the Indenture Trustee

  	
  51

  
	
  Section 908.

  	
  Successor Indenture
  Trustee

  	
  52

  
	
  Section 909.

  	
  Merger or Consolidation
  of the Indenture Trustee

  	
  52

  
	
  Section 910.

  	
  Separate Indenture
  Trustees, Co-Indenture Trustees and Custodians

  	
  52

  
	
  Section 911.

  	
  Representations and
  Warranties

  	
  53

  
	
  Section 912.

  	
  Indenture Trustee
  Offices

  	
  54

  
	
  Section 913.

  	
  Notice of Event of
  Default

  	
  54

  
	
  Section 914.

  	
  Notices

  	
  55

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  X

  	
  SUPPLEMENTAL INDENTURES

  	
  56

  
	
   

  	
   

  	
   

  
	
  Section 1001.

  	
  Supplemental Indentures
  Not Creating a New Series Without Consent of Noteholders

  	
  56

  
	
  Section 1002.

  	
  Supplemental Indentures
  Not Creating a New Series with Consent of Noteholders

  	
  57

  
	
  Section 1003.

  	
  Execution of
  Supplemental Indentures

  	
  58

  
	
  Section 1004.

  	
  Effect of Supplemental
  Indentures

  	
  58

  
	
  Section 1005.

  	
  Reference in Notes to
  Supplemental Indentures

  	
  58

  
	
  Section 1006.

  	
  Issuance of
  Series of Notes

  	
  58

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XI

  	
  NOTEHOLDERS LISTS

  	
  60

  
	
   

  	
   

  	
   

  
	
  Section 1101.

  	
  Issuer to Furnish
  Indenture Trustee Names and Addresses of Noteholders

  	
  60

  
	
  Section 1102.

  	
  Preservation of
  Information; Communications to Noteholders

  	
  60

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XII

  	
  EARLY AMORTIZATION
  EVENTS

  	
  60

  
	
   

  	
   

  	
   

  
	
  Section 1201.

  	
  Early Amortization
  Events

  	
  60

  
	
  Section 1202.

  	
  Remedies

  	
  61

  
	
   

  	
   

  	
   

  
	
  ARTICLE
  XIII

  	
  MISCELLANEOUS
  PROVISIONS

  	
  61

  
	
   

  	
   

  	
   

  
	
  Section 1301.

  	
  Compliance Certificates and Opinions

  	
  61

  



 


iii

















 


TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 1302.

  	
  Form of Documents
  Delivered to Indenture Trustee

  	
  62

  
	
  Section 1303.

  	
  Acts of Noteholders

  	
  62

  
	
  Section 1304.

  	
  Inspection

  	
  62

  
	
  Section 1305.

  	
  Limitation of Right

  	
  63

  
	
  Section 1306.

  	
  Severability

  	
  63

  
	
  Section 1307.

  	
  Notices

  	
  64

  
	
  Section 1308.

  	
  Consent to Jurisdiction

  	
  65

  
	
  Section 1309.

  	
  Captions

  	
  65

  
	
  Section 1310.

  	
  Governing Law

  	
  65

  
	
  Section 1311.

  	
  No Petition

  	
  65

  
	
  Section 1312.

  	
  WAIVER OF JURY TRIAL

  	
  66

  
	
  Section 1313.

  	
  Waiver of Immunity

  	
  66

  
	
  Section 1314.

  	
  Judgment Currency

  	
  66

  
	
  Section 1315.

  	
  [Reserved]

  	
  66

  
	
  Section 1316.

  	
  Consents and Approvals

  	
  66

  
	
  Section 1317.

  	
  Counterparts

  	
  67

  



 


	
  Schedule I

  	
   

  	
  Maximum Concentrations
  for Lessees

  
	
   

  	
   

  	
   

  
	
  EXHIBIT A

  	
  -

  	
  Form of
  Non-Recourse Release

  

  
	
  EXHIBIT B

  	
  -

  	
  Investment Letter

  
	
  EXHIBIT C

  	
  -

  	
  Form of Control
  Agreement

  
	
  EXHIBIT D

  	
  -

  	
  Depreciation Methods by
  Type of Managed Container

  
	
  EXHIBIT E

  	
  -

  	
  Form of Asset Base
  Certificate

  
	
  EXHIBIT F

  	
   

  	
  Interest Rate Hedge
  Agreement Policy

  
	
   

  	
   

  	
   

  
	
  APPENDIX A

  	
  -

  	
  Master Index of Defined
  Terms

  



 


iv

















 


This Indenture, dated as of October 23, 2009 (as
amended, modified or supplemented from time to time as permitted hereby, this “Indenture”),
between TAL ADVANTAGE III LLC, a limited liability company organized under the
laws of Delaware  (the “Issuer”), and
WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association, as the
Indenture Trustee (the “Indenture Trustee”).


 


Each party agrees as follows for the benefit of the
other party, the Noteholders, each Series Enhancer, if any, and each Hedge
Counterparty.


 


GRANTING CLAUSE


 


To secure the payment of all Outstanding Obligations
and the performance of all of the Issuer’s covenants and agreements in this
Indenture and all other Transaction Documents, the Issuer hereby grants,
assigns, conveys, mortgages, pledges, hypothecates and transfers to the
Indenture Trustee, for the benefit of Noteholders, each Series Enhancer,
if any, and each Hedge Counterparty, a security interest in and to all of the
Issuer’s right, title and interest in, to and under the following, whether now
existing or hereafter created or acquired: (i) the Managed Containers
(including any and all substitutions therefor acquired from time to time) and
other Transferred Assets, (ii) the Trust Account, the Restricted Cash
Account, any Series Account and all amounts and Eligible Investments,
Financial Assets, Investment Property, Securities Entitlements and all other
instruments, assets or amounts credited to any of the foregoing or otherwise on
deposit from time to time in the foregoing, (iii) the Contribution and
Sale Agreement, all Hedge Agreements, the Management Agreement and the
Intercreditor Agreement, (iv) all other assets and properties of the
Issuer, whether now existing or hereafter acquired, (v) all income,
payments and proceeds of the foregoing and all other assets granted, assigned,
conveyed, mortgaged, pledged, hypothecated and transferred to the Indenture
Trustee pursuant to this clause, and (vi) all of the following, whether
now existing or hereafter acquired:


 


(a)           All Accounts;


 


(b)           All Chattel Paper;


 


(c)           All Lease Agreements;


 


(d)           All Contracts;


 


(e)           All Documents;


 


(f)            All General Intangibles;


 


(g)           All Instruments;


 


(h)           All Inventory;


 


(i)            All Supporting Obligations;


 


(j)            All Equipment;


 


(k)           All Letter-of-Credit Rights;


 


(l)            All Commercial Tort Claims;


 


(m)          All Investment Property;


 

















 


(n)           All Deposit Accounts;


 


(o)           All property of the Issuer held by
the Indenture Trustee including, without limitation, all property of every
description now or hereafter in the possession or custody of or in transit to
the Indenture Trustee for any purpose, including, without limitation,
safekeeping, collection or pledge, for the account of the Issuer, or as to
which the Issuer may have any right or power;


 


(p)           To the extent not included above and
without limiting the foregoing, all Chattel Paper, all Leases and all
schedules, supplements, amendments, modifications, renewals, extensions, and
guarantees thereof in every case whether now owned or hereafter acquired and
all amounts, rentals, proceeds and other sums of money due and to become due
under the Container Related Agreements, including (in each case only to the
extent related to the Managed Containers), without limitation, (i) all
rentals, payments and other monies, including all insurance payments and claims
for losses due and to become due to the Issuer under, and all claims for
damages arising out of the breach of, any Container Related Agreement; (ii) the
right of the Issuer to terminate, perform under, or compel performance of the
terms of the Container Related Agreements; (iii) any guarantee of the
Container Related Agreements and (iv) any rights of the Issuer in respect
of any subleases or assignments permitted under the Container Related
Agreements;


 


(q)           All insurance proceeds of the
Collateral and all proceeds of the voluntary or involuntary disposition of the
Collateral or such proceeds;


 


(r)            Any and all payments made or due to
the Issuer in connection with any requisition, confiscation, condemnation,
seizure or forfeiture of all or any part of the Collateral by any Governmental
Authority and any other cash or non-cash receipts from the sale, exchange,
collection or other disposition of the Collateral; and


 


(s)           To the extent not otherwise included,
all income and Proceeds of each of the foregoing and all accessions to,
substitutions and replacements for, and rents, profits and products of each of
the foregoing.


 


All of the property described in this Granting Clause
is herein collectively called the “Collateral” and as such is security for all
Outstanding Obligations; provided that
notwithstanding anything to the contrary in this Indenture, Collateral shall
not include monies paid to the Issuer under this Indenture, including monies received
by the Issuer pursuant to Section 302 or Section 806; provided further, that 
notwithstanding the foregoing Grant, (i) no account, instrument,
chattel paper or other obligation or property of any kind due from, owed by, or
belonging to, a Sanctioned Person, and (ii) no Lease in which the Lessee
is a Sanctioned Person, shall, in either instance, constitute Collateral.


 


The Indenture Trustee acknowledges such Grant, accepts
the trusts hereunder in accordance with the provisions hereof, and agrees to perform
the duties herein required as hereinafter provided.  Notwithstanding the foregoing, the Indenture
Trustee does not assume, and shall have no liability to perform, any of the
Issuer’s obligations under any agreement included in the Collateral and shall
have no liability arising from the failure of the Issuer or any other Person to
duly perform any such obligations.


 


2

















 


ARTICLE I 


 


DEFINITIONS


 


Section 101.           Defined Terms.  Capitalized terms used in this Indenture
shall have the meanings set forth in Appendix A hereto and the definitions of
such terms shall be equally applicable to both the singular and plural forms of
such terms.


 


Section 102.           Other Definitional
Provisions.  (a) 
With respect to any Series, all terms used herein and not otherwise defined
herein shall have meanings ascribed to such terms in the related Supplement.


 


(b)           As used in this Indenture
and in any certificate or other document made or delivered pursuant hereto,
accounting terms not defined in this Indenture or in any such certificate or
other document, and accounting terms partly defined in this Indenture or in any
such certificate or other document to the extent not defined, shall have the
respective meanings given to them under GAAP consistently applied. To the
extent that the definitions of accounting terms in this Indenture or in any
such certificate or other document are inconsistent with the meanings of such
terms under GAAP or regulatory accounting principles, the definitions contained
in this Indenture or in any such certificate or other document shall control.


 


(c)           With respect to any
Collection Period, the “related Record Date,” the “related Determination Date,”
and the “related Payment Date” shall mean the Record Date occurring on the last
Business Day of such Collection Period and the Determination Date and Payment
Date occurring in the month immediately following the end of such Collection
Period.


 


(d)           With respect to any Series of
Notes, the “related Supplement” shall mean the Supplement pursuant to which
such Series of Notes is issued and the “related Series Enhancer”
shall mean the Series Enhancer for such Series of Notes.


 


(e)           With respect to any ratio
analysis required to be performed as of the most recently completed fiscal
quarter of a Person, the most recently completed fiscal quarter shall mean the
most recently completed fiscal quarter for which financial statements were
required hereunder to have been delivered.


 


(f)            With respect to the
calculations of the ratios set forth in this Indenture, the components of such
calculations are to be determined in accordance with GAAP, consistently
applied, with respect to the Issuer or the Manager, as the case may be.


 


Section 103.           Computation of Time Periods.  Unless otherwise stated in this Indenture or
any Supplement, 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 104.           Duties of Administrative
Agent.  All of the duties and
responsibilities of the Administrative Agent set forth in this Indenture, any
Supplement or any other Transaction Document are subject in all respects to the
terms and conditions of the Administration Agreement. Each of the Issuer, the
Indenture Trustee and, by acceptance of its Notes, each Noteholder hereby
acknowledges the terms of the Administration Agreement and agrees to cooperate
with the Administrative Agent in its execution of its duties and responsibilities.


 


3

















 


Section 105.           General Interpretive
Principles.  For
purposes of this Indenture (including Appendix A hereto) except as otherwise
expressly provided or unless the context otherwise requires:


 


(a)           the defined terms in this
Indenture shall include the plural as well as the singular, and the use of any
gender herein shall be deemed to include any other gender;


 


(b)           references herein to “Articles”,
“Sections”, “Subsections”, “paragraphs”, and other subdivisions without
reference to a document are to designated Articles, Sections, Subsections,
paragraphs and other subdivisions of this Indenture;


 


(c)           a reference to a Subsection
without further reference to a Section is a reference to such Subsection
as contained in the same Section in which the reference appears, and this rule shall
also apply to paragraphs and other subdivisions;


 


(d)           the words “herein”, “hereof’,
“hereunder” and other words of similar import refer to this Indenture as a
whole and not to any particular provision;


 


(e)           the term “include” or “including”
shall mean without limitation by reason of enumeration; and


 


(f)            When referring to Section 302
or Section 806 of this Indenture, the term “or” shall be additive and not
exclusive.


 


Section 106.           Statutory References.  References in this Indenture to any section
of the Uniform Commercial Code or the UCC shall mean, on or after the effective
date of adoption of any revision to the Uniform Commercial Code or the UCC in
the applicable jurisdiction, such revised or successor section thereto.


 


ARTICLE II 


 


THE NOTES


 


Section 201.           Authorization of Notes.  (a)  The number of Series or
Classes of Notes which may be created by this Indenture is not limited; provided, however,
that, the issuance of any Series of Notes shall not result in, or with the
giving of notice or the passage of time or both would not result in, the
occurrence of an Early Amortization Event or an Event of Default. The aggregate
principal amount of Notes of each Series which may be issued,
authenticated and delivered under this Indenture is not limited except as shall
be set forth in any Supplement and as restricted by the provisions of this
Indenture.


 


(b)           The Notes issuable under
this Indenture shall be issued in such Series, and such Class or Classes
within a Series, as may from time to time be created by Supplement pursuant to
this Indenture. Each Series shall be created by a different Supplement and
shall be designated to differentiate the Notes of such Series from the
Notes of any other Series. The Issuer intends that each such Note shall
constitute a “security” within the meaning of Article 8 of the UCC.


 


(c)           Upon satisfaction of and
compliance with the requirements and conditions to Closing set forth in the
related Supplement, Notes of the Series to be executed and delivered on a
particular Series Issuance Date pursuant to such related Supplement, may
be executed by the Issuer and delivered to the Indenture Trustee for
authentication following the execution and delivery of the related


 


4














 


Supplement creating such Series or
from time to time thereafter, and the Indenture Trustee shall authenticate and
deliver Notes upon a request set forth in an Officer’s Certificate of the
Issuer signed by one of its Authorized Signatories, without further action on
the part of the Issuer.


 


Section 202.           Form of Notes; Global
Notes.  (a)  Notes of any Series or
Class (other than Subject Notes) may be issued, authenticated and
delivered, at the option of the Issuer, as Regulation S Global Notes, Rule 144A
Global Notes, or as Definitive Notes or as may otherwise be set forth in a
Supplement and shall be substantially in the form of the exhibits attached to
the related Supplement. Notes of each Series shall be dated the date of
their authentication and shall bear interest at such rate, be payable as to
principal, premium, if any, and interest on such date or dates, and shall
contain such other terms and provisions as shall be established in the related
Supplement. Except as otherwise provided in any Supplement, the Notes shall be
issued in minimum denominations of $15,000,000 and in integral multiples of
$1,000,000 in excess thereof; provided that one Note of each Class may be
issued in a nonstandard denomination. 
Notwithstanding any other provision of this Indenture or any Supplement
thereto, Subject Notes shall only be issued in certificated form.


 


(b)           If the Issuer shall choose
to issue Regulation S Global Notes or Rule 144A Global Notes, such notes
shall be issued in the form of one or more Regulation S Global Notes or one or
more Rule 144A Global Notes which (i) shall represent, and shall be
denominated in an aggregate amount equal to, the aggregate principal amount of
all Notes to be issued under the related Supplement, (ii) shall be
delivered as one or more Notes held by the Book-Entry Custodian, or, if
appointed to hold such Notes as provided below, the Notes shall be registered
in the name of the Depositary or its nominee, (iii) shall be substantially
in the form of the exhibits attached to the related Supplement, with such
changes therein as may be necessary to reflect that each such Note is a Global
Note, and (iv) shall each bear a legend substantially to the effect
included in the form of the exhibits attached to the related Supplement.


 


(c)           Notwithstanding any other
provisions of this Section 202 or of Section 205, unless and until a
Global Note is exchanged in whole for Definitive Notes, a Global Note may be
transferred, in whole, but not in part, and in the manner provided in this Section 202,
only by (i) the Depositary to a nominee of such Depositary, or (ii) by
a nominee of such Depositary to such Depositary or another nominee of such
Depositary or (iii) by such Depositary or any such nominee to a successor
Depositary selected or approved by the Issuer or to a nominee of such successor
Depositary or in the manner specified in Section 202(d). The Depositary or
the Issuer shall order the Note Registrar to authenticate and deliver any
Global Notes and any Global Note for each Class of Notes having an aggregate
initial outstanding principal balance equal to the initial outstanding balance
of such Class. Noteholders shall hold their respective Ownership Interests in
and to such Notes through the book-entry facilities of the Depositary. Without
limiting the foregoing, any Noteholders shall hold their respective Ownership
Interests, if any, in Global Notes only through Depositary Participants.


 


(d)           If (i) the Issuer
elects to issue Definitive Notes, (ii) the Depositary for the Notes
represented by one or more Global Notes at any time notifies the Issuer that it
is unwilling or unable to continue as Depositary of the Notes or if at any time
the Depositary shall no longer be a clearing agency registered under the
Exchange Act, and a successor Depositary is not appointed or approved by the
Issuer within 90 days after the Issuer receives such notice or becomes aware of
such condition, as the case may be, (iii) the Indenture Trustee, at the
written direction of the Control Party for a Series, elects to terminate the book-entry
system through the Depositary for such Series or (iv) after an Event
of Default or a Manager Default, the Control Party for a Series notifies
the Depositary or Book-Entry Custodian for such Series, as the case may be, in
writing that the continuation of a book-entry system through the Depositary or
the Book-Entry Custodian, as the case may be, is no longer in the best interest
of the Noteholders of such Series, the Issuer will promptly execute, and the
Indenture Trustee, upon receipt of an Officer’s Certificate evidencing such
determination by the Issuer, will promptly authenticate and make available for
delivery, Definitive Notes, in authorized denominations and in an aggregate
principal amount equal to the 


 


5

















 


principal amount of one or
more Global Notes so exchanged in exchange for such one or more Global Notes or
as an original issuance of Notes and this Section 202(d) shall no
longer be applicable to the Notes of such Series. Upon the exchange of the
Global Notes for such Definitive Notes without coupons, in authorized
denominations, such Global Notes shall be canceled by the Indenture Trustee.
All Definitive Notes shall be issued without coupons. Such Definitive Notes
issued in exchange of the Global Notes pursuant to this Section 202(d) shall
be registered in such names and in such authorized denominations as the
Depositary in the case of an exchange or the Note Registrar in the case of an
original issuance, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Indenture Trustee. The Indenture
Trustee may conclusively rely on any such instructions furnished by the
Depositary or the Note Registrar, as the case may be, and shall not be liable
for any delay in delivery of such instructions. The Indenture Trustee shall
make such Notes available for delivery to the Persons in whose names such Notes
are so registered.


 


(e)           As long as the Notes
Outstanding are represented by one or more Global Notes:


 


(1)                                  the Note
Registrar and the Indenture Trustee may deal with the Depositary for all
purposes (including the payment of principal of and interest on the Notes) as
the authorized representative of the Note Owners;


 


(2)                                  the rights of
Note Owners shall be exercised only through the Depositary and shall be limited
to those established by law and agreements between such Note Owners and the
Depositary or the Depositary Participants. Unless and until Definitive Notes
are issued, the Depositary will make book-entry transfers among the Depositary
Participants and receive and transmit payments of principal of, and interest
on, the Notes to such Depositary Participants; and


 


(3)                                  whenever this
Indenture requires or permits actions to be taken based upon instructions or
directions of Noteholders evidencing a specified percentage of the voting
rights of a particular Series, the Depositary shall be deemed to represent such
percentage only to the extent that it has received instructions to such effect
from Note Owners and/or Depositary Participants owning or representing,
respectively, such required percentage of the beneficial interest in the Notes
(or Class of Notes) and has delivered such instruction to the Indenture
Trustee.


 


(f)            Whenever a notice or other
communication to the Noteholders is required under this Indenture, unless and
until Definitive Notes have been issued to the Noteholders, the Indenture
Trustee shall give all such notices and communications to the Depositary.


 


(g)           The Indenture Trustee is
hereby appointed as the Book-Entry Custodian and hereby agrees to act as such
in accordance with the agreement that it has with the Depositary authorizing it
to act as such.  If the Indenture Trustee
resigns or is removed in accordance with the terms hereof, the successor Indenture
Trustee or, if it so elects, the Depositary shall immediately succeed to its
predecessor’s duties as Book-Entry Custodian. 
The Issuer shall have the rights to inspect, and to obtain copies of,
any Notes held as Global Notes by the Book-Entry Custodian.


 


(h)           The provisions of Section 205(g) shall
apply to all transfers of Definitive Notes, if any, issued in respect of
Ownership Interests in the Rule 144A Global Notes.


 


Section 203.           Execution; Recourse
Obligation.  The Notes
shall be executed on behalf of the Issuer by an Authorized Signatory of the
Issuer.  The Notes shall be dated the
date of their authentication by the Indenture Trustee.


 


6

















 


In case any Authorized Signatory of the Issuer whose
signature shall appear on the Notes shall cease to be an Authorized Signatory
of the Issuer before the authentication by the Indenture Trustee and delivery
of such Notes, such signature or facsimile signature shall nevertheless be
valid and sufficient for all purposes.


 


All Notes and the interest and other amounts payable
thereon shall be full recourse obligations of the Issuer and shall be secured
by all of the Issuer’s right, title and interest in the Collateral. The Notes
shall never constitute obligations of the Indenture Trustee, the Manager, the
Seller or of any shareholder or any Affiliate of the Seller (other than the
Issuer) or any member of the Issuer, or any officers, directors, employees or
agents of any thereof, and no recourse may be had under or upon any obligation,
covenant or agreement of this Indenture, any Supplement or of any Notes, or for
any claim based thereon or otherwise in respect thereof, against any
incorporator or against any past, present, or future owner, partner of an owner
or any officer, employee or director thereof or of any successor entity, or any
other Person, either directly or through the Issuer, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly agreed that this
Indenture and the obligations issued hereunder are solely obligations of the
Issuer, and that no such personal liability whatever shall attach to, or is or
shall be incurred by, any other Person under or by reason of this Indenture,
any Supplement or any Notes or implied therefrom, or for any claim based
thereon or in respect thereof, all such liability and any and all such claims
being hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such Notes.
Except as provided in any Supplement, no Person other than the Issuer shall be
liable for any obligation of the Issuer under this Indenture or any Note or any
losses incurred by any Noteholder.


 


Section 204.           Certificate of
Authentication.  No Notes
shall be secured hereby or entitled to the benefit hereof or shall be or become
valid or obligatory for any purpose unless there shall be endorsed thereon a
certificate of authentication by the Indenture Trustee, substantially in the
form set forth in the form of Note attached to the related Supplement. Such
certificate on any Note shall be conclusive evidence and the only competent
evidence that the Note has been duly authenticated and delivered hereunder.


 


At the written direction of the Issuer, the Indenture
Trustee shall authenticate and deliver the Notes. It shall not be necessary
that the same signatory of the Indenture Trustee execute the certificate of
authentication on each of the Notes.


 


Section 205.           Registration;
Registration of Transfer and Exchange of Notes.


 


(a)           The Indenture Trustee shall
keep at its Corporate Trust Office books for the registration and transfer of
the Notes (the “Note Register”).  The
Issuer hereby appoints the Indenture Trustee as its registrar (the “Note
Registrar”) and transfer agent to keep such books and make such registrations
and transfers as are hereinafter set forth in this Section 205 and also
authorizes and directs the Indenture Trustee to provide a copy of such
registration record to each of the Administrative Agent and the Manager upon
their request. The names and addresses of the Noteholders and all transfers of,
and the names and addresses of the transferee of, all Notes will be registered
in such Note Register. The Person in whose name any Note is so registered shall
be deemed and treated as the owner and Noteholder thereof for all purposes of
this Indenture, and none of the Indenture Trustee, any Series Enhancer,
the Note Registrar or the Issuer shall be affected by any notice or knowledge
to the contrary.


 


(b)           Payments of principal,
premium, if any, and interest on any Note shall be payable on each Payment Date
only to the Person that was the Noteholder thereof on the Record Date
immediately preceding such Payment Date. The principal of, premium, if any, and
interest on each Note shall be payable at the Corporate Trust Office of the
Indenture Trustee in immediately available funds in 


 


7

















 


such coin or currency of the
United States of America as at the time for payment shall be legal tender for
the payment of public and private debts.


 


(c)           Notwithstanding the
foregoing or any provision in any Note to the contrary, if so requested by the
Noteholder by written notice (given at least ten (10) days prior to the
applicable Payment Date) to the Indenture Trustee, all amounts payable to such
Noteholder may be paid either (i) by crediting the amount to be
distributed to such Noteholder to an account maintained by such Noteholder with
the Indenture Trustee or by transferring such amount by wire to such other bank
in the United States, including a Federal Reserve Bank, as shall have been
specified in such notice, for credit to the account of such Noteholder
maintained at such bank, or (ii) by mailing a check to such address as
such Noteholder shall have specified in such notice, in either case without any
presentment or surrender of such Note to the Indenture Trustee at the Corporate
Trust Office of the Indenture Trustee (except in the case of final payment).


 


(d)           All payments on the Notes
shall be paid to the Noteholders by wire transfer of immediately available
funds for receipt prior to 2:00 p.m. (New York City time) on the related
Payment Date. Any such payments received by the Noteholders after 2:00 p.m.
(New York City time) on any day shall be considered to have been received on
the next succeeding Business Day; provided, however, that if the Issuer has
deposited the required funds with the Indenture Trustee by close of business
one (1) Business Day prior to the Payment Date, then the Issuer shall be
deemed to have made such payment at the time so required on such date.  Notwithstanding the foregoing or any
provision in any Note to the contrary, if so requested by the registered Noteholder
by written notice to the Indenture Trustee, all amounts payable to such
registered Noteholder may be paid by mailing a check to such address as such
Noteholder shall have specified in such notice, in either case without any
presentment or surrender of such Note to the Indenture Trustee at the Corporate
Trust Office of the Indenture Trustee (except in the case of final payment).


 


(e)           Upon surrender for
registration of transfer of any Note at the Corporate Trust Office, the Issuer
shall execute and the Indenture Trustee, upon written request, shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Notes of the same Series and Class, of any
authorized denominations and of alike aggregate original principal amount.


 


(f)            All Notes issued upon any
registration of transfer or exchange of Notes shall be the legal, valid and
binding obligations of the Issuer, evidencing the same debt, and entitled to
the same benefits under this Indenture and the relevant Supplement, as the
Notes surrendered upon such registration of transfer or exchange.


 


(g)           Every Note presented or
surrendered for registration of transfer or for exchange shall be duly
endorsed, or be accompanied by a written instrument of transfer, in form satisfactory
to the Issuer and the Indenture Trustee duly executed, by the Noteholder
thereof or his attorney duly authorized in writing.


 


(h)           Any service charge, fees or
expenses made or expense incurred by the Indenture Trustee for any such
registration of transfer or exchange referred to in this Section 205 shall
be paid by the applicable Noteholder. The Indenture Trustee or the Issuer may
require payment by the applicable Noteholder of a sum sufficient to cover any
tax, expense or other governmental charge payable in connection therewith.


 


(i)            Unless otherwise specified
in the related Supplement, no transfer of any Note or interest therein shall be
made unless that transfer is made pursuant to an effective registration
statement under the Securities Act, and effective registration or qualification
under applicable state securities laws, or is made in a transaction that does
not require such registration or qualification. If a transfer of any 


 


8

















 


Definitive Note is to be
made without registration under the Securities Act (other than in connection
with the initial issuance thereof or a transfer thereof by the Depositary or
one of its Affiliates), then the Note Registrar shall refuse to register such
transfer unless it receives (and upon receipt, may conclusively rely upon)
either: (i) an Investment Letter signed by such Noteholder and such
Noteholder’s prospective transferee; or (ii) an Opinion of Counsel
satisfactory to the Indenture Trustee and the Issuer to the effect that such
transfer may be made without registration under the Securities Act (which
Opinion of Counsel shall not be an expense of the Issuer or any Affiliate
thereof or of the Depositary, the Manager, the Indenture Trustee, any Series Enhancer
or the Note Registrar in their respective capacities as such), together with
the written certification(s) as to the facts surrounding such transfer
from the Noteholder desiring to effect such transfer or such Noteholder’s
prospective transferee on which such Opinion of Counsel is based. If such a
transfer of any interest in a Global Note is to be made without registration
under the Securities Act, the transferor will be deemed to have made each of
the representations and warranties set forth on Exhibit B hereto in
respect of such interest as if it was evidenced by a Definitive Note and the
transferee will be deemed to have made each of the representations and
warranties set forth in either Exhibit B hereto in respect of such
interest as if it was evidenced by a Definitive Note. None of the Depositary,
the Issuer, the Indenture Trustee or the Note Registrar is obligated to
register or qualify any Class of Notes under the Securities Act or any
other securities law or to take any action not otherwise required under this
Indenture to permit the transfer of any Note or interest therein without such
registration or qualification.  Any
Noteholder or Note Owner desiring to effect such a transfer shall, and does
hereby agree to, indemnify the Depositary, the Issuer, the Indenture Trustee
and the Note Registrar against any liability that may result if any transfer
made in accordance with the preceding sentence did in fact require registration
under the Securities Act.


 


(j)            If Notes are issued or
exchanged in definitive form under Section 202, such Notes will not be
registered by the Indenture Trustee unless each prospective initial Noteholder
acquiring a Note, each prospective transferee acquiring a Note and each
prospective owner (or transferee thereof) of a beneficial interest in Notes
(each, a “Prospective Owner”) acquiring such beneficial interest provides the
Manager, the Issuer, the Indenture Trustee and any successor Manager with a
written representation to the effect set forth in either (A) with respect
to any Warehouse Notes, the first sentence of Section 208 or (B) with
respect to any Term Note, either subsection (i) or (ii) of the second
sentence of Section 208.


 


(k)           No sale, assignment or other
transfer of a Note shall be effective or deemed effective if such sale, assignment
or other transfer is to a Competitor (as determined by the Issuer).  Neither the Indenture Trustee nor the Issuer
is under any obligation to register the Notes under the Securities Act or any
other securities law or to bear any expense with respect to such registration
by any other Person or monitor compliance of any transfer with the securities
laws of the United States regulations promulgated in connection thereto or
ERISA.


 


(l)            Any Note for which an
Opinion of Counsel has not been rendered to the Issuer to the effect that such
Note constitutes debt for United States federal income tax purposes (a “Subject
Note”) shall be subject to the limitations of this Section 205(l).  No Subject Notes may be transferred, and no
transfer (or purported transfer) of all or any part of a Subject Note (or any
direct or indirect economic or beneficial interest therein) (a “Transferred
Note”) whether to another Noteholder or to a Person that is not a Noteholder (a
“Transferee”), shall be effective, and to the greatest extent permitted under
Applicable Law any such transfer (or purported transfer) shall be void ab
initio, and no Person shall otherwise become a Holder of a Subject Note,
unless:  (i) the Transferee provides
the Note Registrar with its representations and warranties made for the benefit
of the Issuer to the effect that:  (A) either
(I) it is not and will not become for U.S. federal income tax purposes a
partnership, Subchapter S corporation or grantor trust (each such entity a “flow-through
entity”) or (II) if it is or becomes a flow-through entity, then (x) none
of the direct or indirect beneficial owners of any of the interests in the
Transferee have or ever will have all or substantially all the value of its
interest in the Transferee attributable to the interest of the Transferee in
any Transferred Note, any other Notes, other interest (direct or indirect) in
the Issuer, or 


 


9

















 


any interest created under
this Indenture and (y) it is not and will not be a principal purpose of
the arrangement involving the investment of the Transferee in any Transferred
Note to permit any partnership to satisfy the 100 partner limitation of Section 1.7704-1(h)(1)(ii) of
the Treasury Regulations necessary for such partnership not to be classified as
a publicly traded partnership under the Code, (B) the Transferee will not
sell, assign, transfer or otherwise convey any participating interest in any
Note or any financial instrument or contract the value of which is determined
by reference in whole or in part to any Note, (C) it is not acquiring and
will not sell, transfer, assign, participate, pledge or otherwise dispose of
any Transferred Note(s) (or interest therein) or cause any Transferred
Note(s) (or interest therein) to be marketed on or through an “established
securities market” within the meaning of Section 7704(b) of the Code,
including, without limitation, an interdealer quotation system that regularly
disseminates firm buy or sell quotations, and (D) in the case of Subject
Notes other than the Series 2009-1 Notes that it is a “U.S. Person” within
the meaning of Section 7701(a)(30) of the Code, and (ii) after such
transfer there would be no more than 90 members of the limited liability
company that is the Issuer (including as members, solely for purposes of this Section 205(l),
Holders of any Subject Notes and any other instruments subject to the transfer
restrictions of this Section 205(l)). 
The Issuer shall not recognize any prohibited Transfer described in this
paragraph either (i) by redeeming the transferor’s interest, or (ii) by
admitting the Transferee as such a member or otherwise recognizing any right of
the Transferee (including, without limitation, any right of the Transferee to
receive payments or other distributions from the Issuer, directly or
indirectly).


 


Section 206.           Mutilated
Destroyed, Lost and Stolen Notes.


 


(a)           If (i) any mutilated
Note is surrendered to the Indenture Trustee, or the Indenture Trustee receives
evidence to its satisfaction of the destruction, loss or theft of any Note, and
(ii) there is delivered to the Indenture Trustee such security or
indemnity as it and the Issuer may require to hold the Issuer, the Manager and
the Indenture Trustee harmless, then the Issuer shall execute and the Indenture
Trustee shall authenticate and deliver, in exchange for or in lieu of any such
mutilated, destroyed, lost or stolen Note, a replacement Note of the same Series and
Class and maturity and of like terms as the mutilated, destroyed, lost or
stolen Note; provided, however,
that if any such destroyed, lost or stolen Note, but not a mutilated Note,
shall have become, or within seven days shall be, due and payable, the Issuer
may pay such destroyed, lost or stolen Note when so due or payable instead of
issuing a replacement Note.


 


(b)           If, after the delivery of
such replacement Note, or payment of a destroyed, lost or stolen Note pursuant
to the proviso to the preceding sentence, a protected purchaser (as defined in
the UCC) of the original Note in lieu of which such replacement Note was issued
(or such payment was made) presents for payment such original Note, the Issuer
and the Indenture Trustee shall be entitled to recover upon the security or
indemnity provided therefor to the extent of any and all loss, damage, cost or
expense incurred by the Issuer or the Indenture Trustee in connection
therewith.


 


(c)           The Indenture Trustee and
the Issuer may, for each new Note authenticated and delivered under the
provisions of this Section 206, require the advance payment by the
Noteholder of the expenses, including counsel fees, service charges and any tax
or governmental charge that may be incurred by the Indenture Trustee or the
Issuer in connection therewith. Any Note issued under the provisions of this Section 206
in lieu of any Note alleged to be destroyed, mutilated, lost or stolen, shall
be equally and proportionately entitled to the benefits of this Indenture with
all other Notes of the same Series and Class. The provisions of this Section 206
are exclusive and shall preclude (to the extent lawful) all other rights and
remedies with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Notes.


 


Section 207.           Delivery, Retention and
Cancellation of Notes.  Each
Noteholder is required, and hereby agrees, to return to the Indenture Trustee
or, if any Series Enhancer has made any 


 


10

















 


unreimbursed payment on such
Notes, to such Series Enhancer, such return to be completed prior to the
receipt of such payment, any Note on which the final payment due thereon is to
be made. Any such Note as to which the Indenture Trustee has made or holds the
final payment thereon shall be deemed canceled and unless any unreimbursed
payment on such Note has been made by a Series Enhancer, shall no longer
be Outstanding for any purpose of this Indenture, whether or not such Note is
ever returned to the Indenture Trustee. 
Matured Notes delivered prior to final payment to the Indenture Trustee
and any Notes transferred or exchanged for other Notes shall be canceled and
disposed of by the Indenture Trustee in accordance with its policy of disposal
and the Indenture Trustee shall promptly deliver to the Issuer such canceled
Notes. If the Indenture Trustee shall acquire, for its own account, any of the
Notes, such acquisition shall not operate as a redemption or satisfaction of
the indebtedness represented by such Notes. If the Issuer shall acquire any of
the Notes, such acquisition shall operate as a redemption or satisfaction of
the indebtedness represented by such Notes. Notes which have been canceled by
the Indenture Trustee shall be deemed paid and discharged for all purposes
under this Indenture.


 


Section 208.           ERISA Deemed Representations.  Each prospective initial Noteholder and each
Prospective Owner of a Warehouse Note will be deemed to have represented and
warranted by such purchase that it is not acquiring the Warehouse Note with the
plan assets of a Benefit Plan Investor. 
Each prospective initial Noteholder and each Prospective Owner of a Term
Note will be deemed to have represented and warranted by such purchase that
either (i) it is not acquiring the Term Notes with the plan assets of a
Benefit Plan or any other plan that is subject to a law that is similar to
Title I of ERISA or Section 4975 of the Code; or (ii) the
acquisition, holding and disposition of the Term Note will not give rise to a
nonexempt prohibited transaction under Section 406 of ERISA, Section 4975
of the Code or any similar applicable law.


 


ARTICLE III 


 


PAYMENT OF NOTES; STATEMENTS TO NOTEHOLDERS


 


Section 301.           Principal and Interest.  Distributions of principal, premium, if any,
and interest on any Series or Class of Notes shall be made to
Noteholders of each Series and Class as set forth in Section 302
of this Indenture and in the related Supplement.  Additional interest calculated at the Default
Rate shall be payable with respect to any payment of principal and/or interest
on any Note which is not paid when due. 
The maximum Default Rate for any Note of any Series shall be equal
to the sum of (i) two percent (2%) per annum, plus (ii) the interest
rate for such Note immediately prior to the occurrence of the relevant Event of
Default. If interest or principal amounts owing on Notes are paid by a Series Enhancer
and additional interest at the Default Rate otherwise would be owing to the
Noteholders of such Notes, then the Default Rate shall be owed to such Series Enhancer
and shall not be paid to applicable Noteholders of such Series unless the
related Series Enhancer has failed to make payment of such amounts in
accordance with the terms of any applicable Enhancement Agreement.  Except as set forth in any Supplement, all
interest payable on the Notes and all commitment and other fees payable to the
Noteholders shall be computed on the basis of a 360-day year for the actual
number of days which have elapsed in the relevant calculation period.


 


Section 302.           Trust Account.  (a)  The Issuer shall establish and
maintain so long as any Outstanding Obligation remains unpaid the Trust Account
into which the Issuer shall deposit (or cause to be deposited) all of the
following amounts:  (i) all amounts
representing Estimated Net Operating Income (and adjustments thereof), Casualty
Proceeds and Sales Proceeds with respect to the Managed Containers received
from the Manager pursuant to the terms of the Management Agreement, (ii) all
Manager Advances, (iii) all amounts received by the Issuer pursuant to the
terms of all Hedge Agreements then in effect, and (iv) other payments
specified to be deposited therein pursuant to the terms 


 


11

















 


of this Indenture and the
other Transaction Documents.  Such Trust
Account shall be established and maintained with the Corporate Trust Office of
the Indenture Trustee in trust for the Indenture Trustee, on behalf of the
Noteholders, each Hedge Counterparty and each Series Enhancer, until all
Outstanding Obligations are paid in full. The Trust Account shall at all times
be an Eligible Account, shall be in the name of the Issuer and shall be pledged
to the Indenture Trustee pursuant to the terms of this Indenture. The Issuer
shall not establish any additional Trust Accounts without (in each instance)
prior written notice to the Indenture Trustee and each Series Enhancer, if
any.


 


(b)           The Issuer shall cause the
Manager to deposit into the Trust Account in accordance with the provisions of Section 5.1
and 5.2 of the Management Agreement amounts representing the Estimated Net
Operating Income (and adjustments thereof), Casualty Proceeds and Sales
Proceeds with respect to the Managed Containers.  The Manager shall be permitted to require the
Indenture Trustee to withdraw from amounts on deposit in the Trust Account on
each Payment Date, or otherwise net out from amounts otherwise required to be
deposited by the Manager in the Trust Account in accordance with the provisions
of Section 5.1 and 5.2 of the Management Agreement, the amount of any
Management Fees or Management Fee Arrearage that would otherwise be due and
payable on the immediately succeeding Payment Date.


 


(c)           On or prior to each
Determination Date, the Issuer shall cause the Manager, pursuant to Section 4.1.2
of the Management Agreement, to prepare and deliver the Manager Report.  On each Payment Date, the Indenture Trustee,
based on the Manager Report (upon which Manager Report the Indenture Trustee
shall be entitled to conclusively rely), shall distribute from the Trust
Account an amount equal to the sum of (i) all amounts representing the Net
Operating Income of the Eligible Containers received during the related
Collection Period, (ii) all other amounts received by the Issuer
subsequent to the immediately preceding Payment Date, (iii) all amounts
transferred from the Restricted Cash Account in accordance with the provisions
of Section 306 hereof; provided that the amounts described in this clause (iii) may
be used only to make the payments described in Section 306 hereof, (iv) any
earnings on Eligible Investments in the Trust Account, the Restricted Cash
Account and any Series Accounts, (v) all Manager Advances made by the
Manager in accordance with the terms of the Management Agreement subsequent to
the immediately preceding Payment Date, (vi) the net amount received by
the Issuer pursuant to any Hedge Agreement then in effect and (vii) if so
directed by the Issuer, amounts, proceeds and funds contemplated by Section 302(f) (unless
the Issuer directs otherwise, the amounts and proceeds contemplated by this
clause (vii) shall be applied only in respect of principal on Notes of one
or more Series) (the sum of the amounts described in clauses (i) through (vii) collectively,
the “Available Distribution Amount”), to the following Persons, by wire
transfer of immediately available funds, in the order of priority listed below
(in the absence of any Manager Report, the Indenture Trustee shall distribute
the Available Distribution Amount in accordance with written instructions from
the Administrative Agent (with a copy to the Issuer, each Series Enhancer
and each Hedge Counterparty) and shall hold until delivery of the Manager
Report (i) any funds otherwise payable due to the Issuer and (ii) any
other amounts which the Administrative Agent is unable to ascertain or allocate
to a specific payment priority set forth in this Indenture):


 


(I)                                    If no Early Amortization Event or Event
of Default shall have occurred and shall then be continuing:


 


(1)                                  To the
Indenture Trustee, an amount equal to the sum of (A) all the Indenture
Trustee’s Fees then due and payable for all Series then Outstanding
(subject to the per annum dollar limitation in Section 905) and (B) any
amounts payable to the Indenture Trustee in accordance with the provisions of Section 403(e) hereof;


 


12

















 


(2)                                  To the Director
Services Provider in the amount of any unpaid fees (to the extent not
previously paid) owing pursuant to the Director Services Agreement (not to
exceed $25,000 per annum)


 


(3)                                  To the Manager,
an amount equal to the sum of: (i) the Management Fee then due and
payable, (ii) the amount of any Management Fee Arrearage, and (iii) any
Excess Deposit then due and payable, but in each case only to the extent not
previously withheld by the Manager in accordance with the terms of the Transaction
Documents;


 


(4)                                  To the Manager,
reimbursement for any Manager Advances;


 


(5)                                  To the
Administrative Agent, the Administrative Agent Fees then due and payable;


 


(6)                                  To the Persons
entitled thereto:  (i) any auditing,
accounting and related fees then due and payable which are classified as an
Issuer Expense and (ii) any other Issuer Expenses then due and payable, so
long as the aggregate amount paid pursuant to this clause (6) in any
calendar year would not exceed Two Hundred Thousand Dollars ($200,000);


 


(7)                                  To each Series Enhancer,
pro rata based on the amount of Premiums then due and payable, the amount of
any Premium then due and payable pursuant to the terms of each applicable
Enhancement Agreement;


 


(8)                                  To each Hedge
Counterparty, the amount of any scheduled payments (but excluding termination
payments) then due and payable pursuant to the terms of any Hedge Agreement
then in effect.


 


(9)                                  To each Series Account
for each Series of Notes then Outstanding, an amount equal to the Priority
Payments for each such Series; provided,
that if sufficient funds do not exist to pay in full all such Priority
Payments, such amounts shall be allocated among all Series of Notes in the
same proportion as the ratio of (x) the Priority Payments of a particular Series of
Notes then Outstanding on such Payment Date to (y) the sum of the Priority
Payments for all Series of Notes then Outstanding on such Payment Date;


 


(10)                            To the
Restricted Cash Account (if such account has been opened), an amount sufficient
so that the total amount on deposit therein, is equal to the Restricted Cash
Amount for such Payment Date;


 


(11)                            To each of the
following on a pro rata basis: (i) to
each Hedge Counterparty, on a pro rata
basis, the amount of any unpaid payments then due and payable (including
termination payments but excluding (x) any payments made pursuant to
clause (8) above and (y) termination payments resulting from an “Event
of Default” or a “Termination Event” (other than “Illegality” and “Tax Event”),
each as defined in the related Hedge Agreement, where the related Hedge
Counterparty is the “Defaulting Party” or sole “Affected Party” (each as
defined in the related Hedge Agreement) pursuant to the terms of any Hedge
Agreement then in effect, and (ii) to each Series Account for each Series of
Notes then Outstanding in accordance with the provisions of Section 302(d),
all Minimum Principal Payment Amounts for each such Series;


 


13

















 


(12)                            To each Series Account
for each Series of Notes then Outstanding in accordance with the
provisions of Section 302(d), all Scheduled Principal Payment Amounts for
each such Series;


 


(13)                            To each Series Account
for each Series of Notes then Outstanding, an amount equal to that portion
of the Supplemental Principal Payment Amounts allocable to such Series in
accordance with the provisions of Section 702(a);


 


(14)                            To the
Noteholders and any Series Enhancer, interest payments and Default Fees on
the Notes not paid pursuant to clause (9) above and any Indemnity Amounts
or other amounts then due and payable;


 


(15)                            To the
Administrative Agent, any Administrative Agent Fees then due and payable, after
giving effect to the payment made pursuant to clause (5) above;


 


(16)                            To the
Indenture Trustee, any Indenture Trustee’s Fees then due and payable, after
giving effect to the payment made pursuant to clause (1) above but not
subject to the per annum dollar limitation in Section 905;


 


(17)                            To the Director
Services Provider in the amount of any unpaid Indemnified Amounts (as defined
in the Director Services Agreement) owing pursuant to the Director Services
Agreement;


 


(18)                            To each Hedge
Counterparty, on a pro rata
basis, the amount of any unpaid payments then due and payable (including
termination payments resulting from an “Event of Default” or a “Termination
Event” (other than “Illegality” and “Tax Event”), each as defined in the
related Hedge Agreement where the related Hedge Counterparty is the “Defaulting
Party” or sole “Affected Party” (each as defined in the related Hedge
Agreement), but excluding any payments made pursuant to clause (8) or (11)
above) pursuant to the terms of any Hedge Agreement then in effect;


 


(19)                            To each of the
following on a pro rata basis: (i) to
the Issuer, the amount of any indemnity payments payable to the officers,
directors and/or managers of the Issuer required to be made by the Issuer, and (ii) to
the Manager, the amount of any officer and director indemnity payments required
to be made by the Manager; and


 


(20)                            To the Issuer,
any remaining Available Distribution Amount which may be used by the Issuer for
any purpose, including, without limitation, general corporate purposes, the
distribution of dividends, repayment of debt, paying fees and expenses or any
other purpose in the sole discretion of the Issuer.


 


(II)                                If an Early Amortization Event shall then
be continuing, but no Event of Default shall then be continuing (or an Event of
Default has occurred but the Notes have not been accelerated in accordance with
Section 802 hereof):


 


(1)                                  To the
Indenture Trustee, an amount equal to the sum of (A) all the Indenture
Trustee’s Fees then due and payable for all Series then Outstanding
(subject to the per annum dollar limitation in Section 905) and (B) any
amounts payable to the Indenture Trustee in accordance with the provisions of Section 403(e) hereof;


 


14














 


(2)                                  To the Director
Services Provider in the amount of any unpaid fees (to the extent not
previously paid) owing pursuant to the Director Services Agreement (not to
exceed $25,000 per annum)


 


(3)                                  To the Manager,
an amount equal to the sum of: (i) the Management Fee then due and
payable, (ii) the amount of any Management Fee Arrearage, and (iii) any
Excess Deposit then due and payable, but in each case only to the extent not
previously withheld by the Manager in accordance with the terms of the
Transaction Documents;


 


(4)                                  To the Manager,
reimbursement for any Manager Advances;


 


(5)                                  To the
Administrative Agent, the Administrative Agent Fees then due and payable;


 


(6)                                  To the Persons
entitled thereto:  (i) any auditing,
accounting and related fees then due and payable which are classified as an
Issuer Expense and (ii) any other Issuer Expenses then due and payable, so
long as the aggregate amount paid pursuant to this clause (6) in any
calendar year would not exceed Five Hundred Thousand Dollars ($500,000);


 


(7)                                  To each Series Enhancer,
pro rata based on the amount of Premiums then due and payable, the amount of
any Premium then due and payable pursuant to the terms of each applicable
Enhancement Agreement;


 


(8)                                  To each Hedge
Counterparty, the amount of any scheduled payments (but excluding termination
payments) then due and payable pursuant to the terms of any Hedge Agreement
then in effect.


 


(9)                                  To each Series Account
for each Series of Notes then Outstanding, an amount equal to the Priority
Payments for each such Series; provided,
that if sufficient funds do not exist to pay in full all such Priority
Payments, such amounts shall be allocated among all Series of Notes in the
same proportion as the ratio of (x) the Priority Payments of a particular Series of
Notes then Outstanding on such Payment Date to (y) the sum of the Priority
Payments for all Series of Notes then Outstanding on such Payment Date;


 


(10)                            To the
Restricted Cash Account (if such account has been opened), an amount sufficient
so that the total amount on deposit therein, is equal to the Restricted Cash
Amount for such Payment Date;


 


(11)                            To each of the
following on a pro rata basis: (i) to
each Hedge Counterparty, on a pro rata
basis, the amount of any unpaid payments then due and payable (including
termination payments but excluding (x) any payments made pursuant to
clause (8) above and (y) termination payments resulting from an “Event
of Default” or a “Termination Event” (other than “Illegality” and “Tax Event”)
(each as defined in the related Hedge Agreement where the related Hedge
Counterparty is the “Defaulting Party” or sole “Affected Party” (each as
defined in the related Hedge Agreement)) pursuant to the terms of any Hedge
Agreement then in effect, and (ii) to each Series of Notes then
Outstanding, pro rata based on
unpaid principal amounts, until all Series of Notes have been paid in
full;


 


15

















 


(12)                            To the
Noteholders and any Series Enhancer, interest payments on the Notes and
Default Fees not paid pursuant to clause (9) above and any Indemnity
Amounts or other amounts then due and payable;


 


(13)                            To the
Administrative Agent, any Administrative Agent Fees then due and payable, after
giving effect to the payment made pursuant to clause (5) above;


 


(14)                            To the
Indenture Trustee, any Indenture Trustee’s Fees then due and payable, after
giving effect to the payment made pursuant to clause (1) above but not
subject to the per annum dollar limitation in Section 905;


 


(15)                            To the Director
Services Provider in the amount of any unpaid Indemnified Amounts (as defined
in the Director Services Agreement) owing pursuant to the Director Services
Agreement;


 


(16)                            To each Hedge
Counterparty, on a pro rata
basis, the amount of any unpaid payments then due and payable (including
termination payments resulting from an “Event of Default” or a “Termination
Event” (other than “Illegality” and “Tax Event”), each as defined in the
related Hedge Agreement, where the related Hedge Counterparty is the “Defaulting
Party” or sole “Affected Party” (each as defined in the related Hedge
Agreement), but excluding any payments made pursuant to clause (8) or (11)
above) pursuant to the terms of any Hedge Agreement then in effect;


 


(17)                            To each of the
following on a pro rata basis: (i) to
the Issuer, the amount of any indemnity payments payable to the officers,
directors and/or managers of the Issuer required to be made by the Issuer, and (ii) to
the Manager, the amount of any officer and director indemnity payments required
to be made by the Manager; and


 


(18)                            To the Issuer,
any remaining Available Distribution Amount which may be used by the Issuer for
any purpose, including, without limitation, general corporate purposes, the
distribution of dividends, repayment of debt, paying fees and expenses or any
other purpose in the sole discretion of the Issuer.


 


(d)           If on any Payment Date
described in section (c)(I) above, there are not sufficient funds to pay,
in full, the Minimum Principal Payment Amounts and/or Scheduled Principal
Payment Amounts owing to all Series of Notes then Outstanding, as the case
may be, then, subject to the priority of payments set forth in (c)(I) above,
any such principal payments having the same payment priority will be paid, in
full, to the Series first issued (based on their respective dates of
issuance or Conversion Dates, as applicable) in chronological order based on
their respective dates of issuance or Conversion Dates, as applicable.  For purposes of this Section 302(d) only,
any Series which was originally designated as Warehouse Notes and is
subsequently considered to be a Series of Term Notes due to the occurrence
of the Conversion Date for such Series will be deemed to have an issuance
date equivalent to its Conversion Date. 
If two or more Series of the Notes were issued on the same date or
have the same Conversion Date, then principal payments having the same payment
priority will be allocated among each such Series, on a pro rata
basis, based on the principal payments then due with respect to such Series.


 


If on any Payment Date
described in section (c)(II) above, there are not sufficient funds to pay,
in full, all Minimum Principal Payment Amounts owing to all Series of
Notes then Outstanding, then amounts available for the payment of Minimum
Principal Payment Amounts pursuant to the priority of payments set forth in (c)(II) above
shall be allocated among all Series of Notes for which 


 


16

















 


Minimum Principal Payment Amounts are owing
on such Payment Date on a pro rata basis, calculated based on the amount of the
Minimum Principal Payment Amounts then owing to each such Series.


 


If on any Payment Date
described in section (c)(II) above, there are not sufficient funds to pay,
in full, all Scheduled Principal Payment Amounts owing to all Series of
Notes then Outstanding, then amounts available for the payment of Scheduled
Principal Payment Amounts pursuant to the priority of payments set forth in (c)(II) above
shall be allocated among all Series of Notes for which Scheduled Principal
Payment Amounts are owing on such Payment Date on a pro rata basis, calculated
based on the amount of the Scheduled Principal Payment Amounts then owing to
each such Series.


 


(e)           If any Series has more
than one Class of Notes then Outstanding, then the Available Distribution
Amount shall be calculated without regard to the payment priorities of the
Classes of Notes within such Series. 
Once the Available Distribution Amount has been allocated to each
Series, then that portion of the Available Distribution Amount allocable to
such Series shall be paid to each Class of Noteholders of such Series in
accordance with the priority of payments set forth in the related Supplement.


 


(f)            The Issuer shall have the
right, but not the obligation, to make (or to direct the Indenture Trustee to
make) principal payments on any Series of Notes and payments of other
Outstanding Obligations from some or all of (i) amounts that are payable
or have been paid to the Issuer pursuant to this Section 302, (ii) amounts
that the Issuer receives from advances or draws under any Series of
Warehouse Notes, (iii) proceeds of the issuance of any Series of
Notes, and (iv) other funds held by the Issuer.  Without limiting the foregoing, at the
direction of the Issuer, amounts and proceeds contemplated by the preceding
sentence may be included in distributions in respect of principal payments on
the Notes of one or more Series and payments of other Outstanding
Obligations pursuant to Section 302(c).


 


Section 303.           Investment of Monies Held in
the Trust Account, the Restricted Cash Account, and Series Accounts;
Control over Eligible Investments.


 


(a)           The Indenture Trustee shall
invest any cash deposited in the Trust Account, the Restricted Cash Account,
and each Series Account in such Eligible Investments as the Issuer shall
direct in writing or by telephone and subsequently confirm in writing. Each
Eligible Investment (including reinvestment of the income and proceeds of
Eligible Investments) shall be held to its maturity and shall mature or shall
be payable on demand not later than the Business Day immediately preceding the
next succeeding Payment Date. If the Indenture Trustee has not received written
instructions from the Issuer by 2:30 p.m. (New York time) on the day such
funds are received as to the investment of funds then on deposit in any of the
aforementioned accounts, the Issuer hereby instructs the Indenture Trustee to
invest such funds in overnight investments of the type described in clause (vi) of
the definition of Eligible Investments. 
Eligible Investments shall be made in the name of the Securities
Intermediary, and subject to the terms of the Control Agreements.  Any earnings on Eligible Investments in the
Trust Account, the Restricted Cash Account, and each Series Account shall
be retained in each such account and be distributed in accordance with the
terms of this Indenture or any related Supplement. The Indenture Trustee shall
not be liable or responsible for losses on any investments made by it pursuant to
this Section 303.


 


(b)           On or prior to the Closing
Date (with respect to the Trust Account and any Series Account) or on or
prior to the Restricted Cash Effective Date (with respect to the Restricted
Cash Account), each of the Issuer and the Securities Intermediary shall enter
into control agreements (each a “Control Agreement”, collectively, the “Control
Agreements”) substantially in the form of Exhibit C hereto for each of the
Trust Account, the Restricted Cash Account and any Series Accounts.  At all times on and after the Closing Date
(or the related Closing Date or on Restricted Cash Effective Date, as
applicable), each such account shall be the subject of a Control Agreement.


 


17

















 


(c)           The Indenture Trustee,
acting in accordance with the terms of this Indenture, shall be entitled to
deliver an Entitlement Order to the Securities Intermediary at which such
accounts are maintained at any time; provided, however, that the Indenture
Trustee agrees not to invoke its right to provide an Entitlement Order (other
than an order directing the transfer of funds from the Trust Account in
accordance with Section 302(c)) from the Restricted Cash Account in
accordance with Section 306 unless an Event of Default has occurred and is
continuing. Such Control Agreements shall provide that upon receipt of the
Entitlement Order in accordance with the provisions of this Indenture, the
Indenture Trustee shall comply with such Entitlement Order without further
consent by the Issuer or any other Person.


 


(d)           Each of the Trust Account,
the Restricted Cash Account, and the Series Accounts shall be established
with the Indenture Trustee and, so long as any Outstanding Obligation remains
unpaid, shall be maintained with the Indenture Trustee so long as (A) the
short-term unsecured debt obligations of the financial institution fulfilling
the role of the Indenture Trustee are rated not less than the Required Deposit
Rating, or (B) each of the Trust Account, the Restricted Cash Account, and
the Series Accounts are maintained at the Corporate Trust Office of the
Indenture Trustee.


 


(e)           Each of the Trust Account,
the Restricted Cash Account and each Series Account shall be governed by
the laws of the State of New York, regardless of any provision in any other
agreement. Each Control Agreement shall provide for purposes of the UCC, that
New York shall be deemed to be the Securities Intermediary’s jurisdiction and
each of the Trust Account, the Restricted Cash Account and each Series Account
(as well as the Securities Entitlements related thereto) shall be governed by
the laws of the State of New York.


 


(f)            The Securities Intermediary
has not entered into, and until the termination of this Indenture will not
enter into, any agreement with any other Person relating to each of the Trust
Account, the Restricted Cash Account, each Series Account or any Financial
Assets credited thereto pursuant to which it has agreed to comply with
Entitlement Orders of such other Person and the Securities Intermediary has not
entered into, and until the termination of this Agreement will not enter into,
any agreement with the Issuer, the Seller, the Manager or the Indenture Trustee
purporting to limit or condition the obligation of the Securities Intermediary
to comply with Entitlement Orders as set forth in Section 303(c) hereof.


 


(g)           Except for the claims and
interest of the Indenture Trustee and of the Issuer hereunder in each of the
Trust Account, the Restricted Cash Account and each Series Account, to the
best of its knowledge without independent investigation, the Securities
Intermediary knows of no claim to, or interest in, any of the Trust Account,
the Restricted Cash Account, any Series Account or in any Financial Asset
credited thereto. If any other Person asserts any Lien, encumbrance or adverse
claim (including any writ, garnishment, judgment, warrant of attachment,
execution or similar process) against any of the Trust Account, the Restricted
Cash Account,  each Series Account
or in any Financial Asset credited thereto, the Securities Intermediary will
promptly notify the Indenture Trustee, the Manager, each Series Enhancer,
each Hedge Counterparty and the Issuer thereof.


 


(h)           The Indenture Trustee shall
possess a perfected security interest in all right, title and interest in and
to all funds on deposit from time to time in each of the Trust Account, the
Restricted Cash Account, each Series Account and in all Proceeds thereof.
Each of the Trust Account, the Restricted Cash Account and each Series Account
shall be in the name of the Issuer subject to a securities account control
agreement providing that such account shall be under the sole dominion and
control of the Indenture Trustee (subject to the terms and conditions thereof),
for the benefit of the Noteholders, each Hedge Counterparty and each Series Enhancer,
if any. The Indenture Trustee shall make withdrawals and payments from each of
the Trust Account, the Restricted Cash Account and the Series Accounts and



 


18

















 


apply such amounts in
accordance with the provisions of the Manager Report and, in the absence of any
Manager Report, in accordance with written instructions from the Administrative
Agent.


 


(i)            The Issuer shall not direct
the Indenture Trustee to make any investment of any funds or to sell any
investment held in any of the Trust Account, the Restricted Cash Account or any
Series Account unless the security interest of the Indenture Trustee in
such account and any funds or investments held therein shall continue to be
perfected without any further action by any Person.


 


(j)            Wells Fargo Bank, National
Association (including in its capacity as Securities Intermediary) hereby
agrees that any security interest it may have in the Trust Account, the
Restricted Cash Account and any Series Account or any Security Entitlement
credited thereto shall be subordinate to the security interest created by this
Indenture. The Financial Assets and other items deposited to the Trust Account,
the Restricted Cash Account and any Series Account will not be subject to
deduction, set-off, banker’s lien, or any other right in favor of any Person
except as created pursuant to this Indenture. 
For the sake of clarity, the fees and expenses of the Indenture Trustee
shall be payable solely pursuant to Section 302 or 806 of this Indenture
and will not be subject to deduction, set-off, bankers lien or other right of
the Indenture Trustee.


 


Section 304.           Reports to Noteholders.  The Indenture Trustee shall promptly upon the
receipt thereof, make available to each Noteholder, the Administrative Agent,
the Depositary, each Hedge Counterparty and each Series Enhancer, a copy
of all reports, financial statements and notices received by the Indenture
Trustee pursuant to the Contribution and Sale Agreement, the Indenture
(including any Supplements issued pursuant thereto), the Administration
Agreement, a Note Purchase Agreement or the Management Agreement, by posting
copies thereof on its password-protected website (www.CTSLink.com) or at such other
address as shall be specified by the Indenture Trustee from time to time in
writing to each Noteholder, the Administrative Agent, the Depository, each
Hedge Counterparty and each Series Enhancer; provided, however, the Indenture Trustee shall have no obligation
to provide such information described in this Section 304 until it has
received the requisite information from the applicable party.  The Indenture Trustee will make no
representation or warranties as to the accuracy or completeness of such documents
and will assume no responsibility therefor. 
In connection with providing access to the Indenture Trustee’s website,
the Indenture Trustee may require registration and the acceptance of a
disclaimer.  The Indenture Trustee shall
not be liable for the dissemination of information in accordance with the terms
of this Indenture.


 


Section 305.           Records.  The Indenture Trustee shall cause to be kept
and maintained customary records pertaining to the Trust Account, the
Restricted Cash Account  and each Series Account
and all receipts and disbursements therefrom. The Indenture Trustee shall
deliver monthly an accounting thereof in the form of a trust statement to the
Issuer, the Seller, the Administrative Agent and the Manager, each Series Enhancer
and each Hedge Counterparty.


 


Section 306.           Restricted Cash Account.  (a)  The Issuer shall establish on or
prior to the Restricted Cash Effective Date, and shall thereafter maintain so
long as any Outstanding Obligation remains unpaid, an Eligible Account in the
name of the Issuer with the Indenture Trustee which shall be designated as the
Restricted Cash Account, which account shall be held by the Indenture Trustee
for the benefit of the Noteholders of all Series of Notes and each Series Enhancer
pursuant to the terms of this Indenture and the related Supplements.  On the Restricted Cash Effective Date, the
Issuer will deposit (or cause to be deposited) into the Restricted Cash Account
an amount equal to the Restricted Cash Amount, and amounts thereafter shall be
deposited in the Restricted Cash Account in accordance with Section 302
hereof. The Restricted Cash Account shall only be relocated to another
financial institution in accordance with the express provisions of Section 303(d) hereof.
Any and all monies on deposit in the Restricted Cash Account shall be invested
in Eligible Investments in accordance with this Indenture and shall be
distributed in accordance with this Section 306.


 


19

















 


(b)           On each Determination Date
following the Restricted Cash Effective Date, the Indenture Trustee shall, in
accordance with the Manager Report (or, in the absence of any Manager Report,
in accordance with written instructions from the Administrative Agent),
withdraw from the Restricted Cash Account and deposit into the Series Account
for each Series an amount equal to the Deficiency Amount (determined after
giving effect to all other deposits to the Series Account for such Series (other
than funds transferred from the Restricted Cash Account)) on or prior to such
Determination Date.  Amounts transferred
to the Series Account pursuant to the provisions of this Section 306(b) may
only be used to pay amounts specified in the definition of “Permitted Payment
Date Withdrawals”.  If the amount on
deposit in the Restricted Cash Account on a Determination Date is not
sufficient to pay in full the aggregate Permitted Payment Date Withdrawals
referred to in this Section 306(b), then the amount of funds then
available in the Restricted Cash Account will be allocated among the various Series on
a pro rata basis in proportion to
the amount of their respective Permitted  Payment
Date Withdrawals.


 


(c)           On each Payment Date
following the Restricted Cash Effective Date, the Indenture Trustee shall, in
accordance with the Manager Report (or, in the absence of any Manager Report,
in accordance with written instructions from the Administrative Agent), deposit
in the Trust Account for distribution in accordance with the terms of this
Indenture the excess, if any, of (A) the amounts then on deposit in the
Restricted Cash Account (after giving effect to any withdrawals therefrom on
such Payment Date) over (B) an amount equal to the Restricted Cash Amount
for such Payment Date. On the Legal Final Maturity Date for the Series with
the latest Legal Final Maturity Date, any remaining funds in the Restricted
Cash Account shall be deposited in the Trust Account and, subject to the
limitations set forth in the related Supplement, distributed in accordance with
Section 302 of this Indenture and the related Supplement.


 


Section 307.           CUSIP Numbers.  The Issuer in issuing the Notes may use “CUSIP”
numbers (if then generally in use), and, if so, the Indenture Trustee shall use
“CUSIP” numbers in notices of redemption as a convenience to Noteholders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other identification
numbers printed on the Notes, and any such redemption shall not be affected by
any defect in or omission of such numbers. The Issuer will promptly notify the
Indenture Trustee of any change in the “CUSIP” numbers.


 


Section 308.           No Claim.  Indemnities payable to the Indenture Trustee,
the Manager, the Independent Director Provider, the Administrative Agent and
any other Person, shall be non-recourse to the Issuer and shall not constitute
a claim (as defined in Section 101(5) of the Bankruptcy Code) against
the Issuer or the Collateral in the event such amounts are not paid in
accordance with Section 302 or 806 of this Indenture.


 


Section 309.           Compliance with Withholding
Requirements. 
Notwithstanding any other provision of this Indenture, the Indenture
Trustee shall comply with all United States federal income tax withholding
requirements with respect to payments to Noteholders of interest, original
issue discount, or other amounts that the Indenture Trustee reasonably believes
are applicable under the Code. The consent of Noteholders shall not be required
for any such withholding.


 


Section 310.           Tax Treatment of Notes.  The Issuer has entered into this Indenture,
and the Notes will be issued, with the intention that, for United States
federal, state and local income, single business and franchise tax purposes,
the Notes will qualify as indebtedness. The Issuer and the Indenture Trustee,
by entering into this Indenture, and each Noteholder and beneficial owner of a
Note, by its acceptance of its Note, agree to treat the Notes as indebtedness
for United States federal, state and local income, single business and
franchise tax purposes.


 


20

















 


ARTICLE IV


 


COLLATERAL


 


Section 401.           Collateral.  (a)  The Notes and all other Outstanding
Obligations shall be obligations of the Issuer as provided in Section 203
hereof. The Indenture Trustee, on behalf of the Noteholders, each Hedge
Counterparty and each Series Enhancer, if any, shall also have the benefit
of, and the Outstanding Obligations shall be secured by and be payable from,
the Issuer’s right, title and interest in the Collateral. The income, payments
and proceeds of such Collateral shall be allocated to each such Person strictly
in accordance with the applicable payment priorities set forth in Section 302
or Section 806 hereof.


 


(b)           Notwithstanding anything
contained in this Indenture to the contrary, the Issuer expressly agrees that
it shall remain liable under each of its Contracts and Leases to observe and
perform all the conditions and obligations to be observed and performed by it
thereunder and that it shall perform all of its duties and obligations
thereunder, all in accordance with and pursuant to the terms and provisions of
each such Contract or Lease, as the case may be.


 


(c)           The Indenture Trustee hereby
acknowledges the appointment by the Issuer of the Manager to service and
administer the Collateral in accordance with the provisions of the Management
Agreement.  So long as the Management
Agreement shall not have been terminated in accordance with its terms, the
Indenture Trustee hereby agrees to provide the Manager with such documentation,
and to take all such actions with respect to the Collateral as the Manager may
reasonably request in accordance with the express provisions of the Management
Agreement; provided, however, that the Indenture Trustee shall be entitled to
receive from the Manager reasonable compensation and cost reimbursement for any
such action. Until such time as the Management Agreement has been terminated in
accordance with its terms, the Manager, on behalf of the Issuer, shall continue
to collect all Accounts and payments on the Leases of the Managed Containers in
accordance with the provisions of the Management Agreement and deposit such
amounts into the Trust Account in accordance with the provisions of the
Management Agreement. Any Proceeds received directly by the Issuer in payment
of any Account or Leases with respect to, or in payment for or in respect of,
any of the Managed Containers or on account of any of the Contracts to which
the Issuer is a party shall be promptly deposited by the Issuer in precisely
the form received (with all necessary endorsements) in the Trust Account in
accordance with the provisions of the Management Agreement, and until so
deposited shall be deemed to be held in trust by the Issuer for the Indenture
Trustee and shall continue to be collateral security for all of the obligations
secured by this Indenture and shall not constitute payment thereof until
applied as hereinafter provided. If (i) an Event of Default has occurred, (ii) any
Sale of the Collateral pursuant to Section 816 hereof shall have occurred
or (iii) a Manager Default has occurred, the Issuer shall at the request
of the Indenture Trustee, acting with the consent of or at the direction of the
Requisite Global Majority, to the extent practicable, deliver to the Indenture
Trustee (or such other Person as the Indenture Trustee may direct) originals
(or, to the extent originals cannot be delivered, copies) of all Leases and
other documents evidencing, and relating to, the sale, lease and delivery of
such Managed Containers and the Issuer shall, to the extent practicable,
deliver originals (or, to the extent originals cannot be delivered, copies) of
all other documents evidencing and relating to, the performance of any labor,
maintenance, remarketing or other service which created any Accounts,
including, without limitation, all original orders, invoices and shipping
receipts.


 


Section 402.           Pro Rata Interest.


 


(a)           Except as expressly provided
for herein or in any Supplement, the Notes of all Outstanding Series shall
be equally and ratably entitled to the benefits of this Indenture without
preference, priority or distinction, all in accordance with the terms and
provisions of this Indenture and the related Supplement. All Notes of a
particular Class issued hereunder are and are to be, to the extent 


 


21

















 


(including any exceptions)
provided in this Indenture and the related Supplement, equally and ratably
secured by this Indenture without preference, priority or distinction on
account of the actual time or times of the authentication or delivery of the
Notes so that all Notes of a particular Series and Class at any time
Outstanding (including Notes owned by the Seller and its Affiliates, other than
the Issuer) shall have the same right, Lien and preference under this Indenture
and shall all be equally and ratably secured hereby with like effect as if they
had all been executed, authenticated and delivered simultaneously on the date
hereof.


 


(b)           If the conditions specified
in Section 701 of this Indenture are met with respect to such Series of
Notes, the security interest, and all other estate and rights granted by this
Indenture with respect to such Series of Notes shall cease and become null
and void, and all of the property, rights, and interest granted as security for
the Notes of such Series shall revert to and revest in the Issuer without
any other act or formality whatsoever.


 


Section 403.           Indenture Trustee’s
Appointment as Attorney-in-Fact.


 


(a)           The Issuer hereby
irrevocably constitutes and appoints the Indenture Trustee, and any officer or
agent thereof, with full power of substitution, as its true and lawful
attorney-in-fact with full irrevocable power and authority in the place and
stead of the Issuer and in the name of the Issuer or in its own name, from time
to time, for the purpose of carrying out the terms of this Indenture, to take
any and all appropriate action and to execute and deliver any and all documents
and instruments which may be necessary or desirable to accomplish the purposes
of this Indenture; provided, however, that the Indenture Trustee has no
obligation or duty to take such action or to determine whether to perfect,
file, record or maintain any perfected, filed or recorded document or
instrument (all of which the Issuer shall prepare, deliver and instruct the
Indenture Trustee to execute) in connection with the grant or security interest
in the Collateral hereunder.


 


(b)           The Indenture Trustee shall
not exercise the power of attorney or any rights granted to the Indenture
Trustee pursuant to this Section 403 unless an Event of Default shall have
occurred and then be continuing. The Issuer hereby ratifies, to the extent
permitted by law, all actions that said attorney shall lawfully do, or cause to
be done, by virtue hereof. The power of attorney granted pursuant to this Section 403
is a power coupled with an interest and shall be irrevocable until all Series of
Notes are paid and performed in full.


 


(c)           The powers conferred on the
Indenture Trustee hereunder are solely to protect the Indenture Trustee’s
interests in the Collateral and shall not impose any duty upon it to exercise
any such powers except as set forth herein. The Indenture Trustee shall be
accountable only for amounts that it actually receives as a result of the
exercise of such powers and neither it nor any of its officers, directors,
employees, agents or representatives shall be responsible to the Issuer for any
act or failure to act, except for its own negligence or willful misconduct.


 


(d)           The Issuer also authorizes
(but does not obligate) the Indenture Trustee to (i) so long as a Manager
Default is continuing and a Manager Termination Notice has been delivered in
accordance with the terms of the Management Agreement, communicate in its own
name, or to direct any other Person, including the Manager or a replacement
Manager, to communicate with any party to any Contract or Lease relating to a
Managed Container and (ii) so long as an Event of Default is continuing,
and a Manager Termination Notice has been delivered in accordance with the
terms of the Management Agreement, execute in connection with the sale of
Collateral provided for in Article VIII hereof, any endorsements,
assignments or other instruments of conveyance or transfer with respect to the
Collateral.


 


(e)           If the Issuer fails to
perform or comply with any of its agreements contained herein and a Responsible
Officer of the Indenture Trustee shall receive notice of such failure, the 


 


22

















 


Indenture Trustee, with the
consent of the Requisite Global Majority, shall cause performance or
compliance, or acting at the direction of the Requisite Global Majority shall
perform or comply, with such agreement; provided, however, that the Indenture Trustee shall have no obligation
to so perform or comply if it has reasonable grounds to believe that payment of
its expenses and interest thereon (as set forth in the following sentence) is
not reasonably assured. The reasonable and documented expenses, including
reasonable and documented attorneys’ fees and expenses, of the Indenture
Trustee incurred in connection with such performance or compliance, shall be
payable by the Issuer to the Indenture Trustee on demand and shall constitute
additional Outstanding Obligations secured hereby and shall be paid in
accordance with the provisions of Section 302 or Section 806 hereof.


 


Section 404.           Release of Security Interest.  The Indenture Trustee, at the written
direction of the Manager, shall release from the Lien of this Indenture, any
Managed Container and the Related Assets sold or transferred pursuant to Section 606(a) hereof.
In effectuating such release, the Indenture Trustee shall be provided with and
entitled to rely on: (A) so long as no Early Amortization Event is then
continuing, a written direction of the Manager (with a copy to the
Administrative Agent and each Series Enhancer, if any) identifying each
Managed Container or other items to be released from the Lien of this Indenture
in accordance with the provisions of this Section 404 accompanied by an
Asset Base Certificate, or (B) if an Early Amortization Event is then
continuing, all of the following: (i) the items set forth in (A), (ii) a
certificate from the Manager (with a copy to the Administrative Agent and each Series Enhancer)
stating that such release is in compliance with Sections 404 and 606(a) hereof
and (iii) a written direction from the Administrative Agent and each Series Enhancer
approving such release. The Administrative Agent shall provide such direction
if the Administrative Agent has received the items referred to in (B) above
and the officers of the Administrative Agent who regularly deal with the
Manager in connection with the transactions contemplated hereby do not have
actual knowledge that such certificates are inaccurate in any significant
manner.


 


The Indenture Trustee will, promptly upon receipt of
such certificate from the Manager and at the Issuer’s expense, execute and
deliver to the Issuer, the Seller or the Manager, as appropriate, each Series Enhancer,
each Hedge Counterparty and the Administrative Agent, a non-recourse
certificate of release substantially in the form of Exhibit A hereto and
such additional documents and instruments (including, but not limited to, UCC
termination filings) as that Person may reasonably request to evidence the
termination and release from the Lien of this Indenture of such Managed
Container and the Related Assets.


 


Section 405.           Administration of Collateral.  (a) The Indenture Trustee shall as
promptly as practicable notify the Noteholders, each Series Enhancer, each
Hedge Counterparty and the Administrative Agent of any Manager Default of which
a Responsible Officer has actual knowledge. If a Manager Default shall have
occurred and then be continuing, the Indenture Trustee, at the written
direction of the Requisite Global Majority, shall deliver to the Manager (with
a copy to the Administrative Agent, each Series Enhancer, each Hedge
Counterparty and each Rating Agency) a Manager Termination Notice terminating
the Manager of its responsibilities in accordance with the terms of the
Management Agreement.  Pursuant to the Administration
Agreement, the Administrative Agent shall seek to appoint a replacement Manager
acceptable to the Requisite Global Majority. If the Administrative Agent is
unable to locate and qualify a replacement Manager acceptable to the Requisite
Global Majority within sixty (60) days after the date of delivery of the
Manager Termination Notice, then the Indenture Trustee may (and shall, upon the
direction of the Requisite Global Majority) appoint, or petition a court of
competent jurisdiction to appoint, a company acceptable to the Requisite Global
Majority, having a net worth of not less than $5,000,000 and whose regular
business includes equipment leasing or servicing, as the successor to the
Manager of all or any part of the responsibilities, duties or liabilities of
the Manager under the Management Agreement and the other Transaction Documents
to which it is a party. The Manager shall continue to fulfill its duties and
responsibilities as Manager until such time as its replacement is appointed and
has assumed such responsibilities. The replaced Manager 


 


23

















 


shall not be entitled to
receive any compensation for any period after the effective date of such
replacement, but shall be entitled to receive compensation for services
rendered through the effective date of such replacement except to the extent
that it is unable to fulfill such duties pending the appointment of a
replacement Manager. If the Manager is unable to fulfill such duties pending
the appointment of a replacement Manager, the Administrative Agent shall take
such actions, which it is reasonably capable of performing and as the Requisite
Global Majority shall direct to aid in the transition of the Manager; provided,
however, that no provisions of this Indenture or the Administration Agreement
shall require the Administrative Agent to expend or risk its own funds or
otherwise incur any financial liability in the performance of its duties
hereunder or under the Administration Agreement, or in the exercise of any of
its rights, powers or duties, if the Administrative Agent shall have reasonable
grounds for believing that timely repayment in full of such funds or adequate
security or indemnity against such risk or liability is not reasonably assured
after taking into account the reimbursement provisions set forth in Section 302
or Section 806, as applicable. All reimbursements to the Administrative
Agent shall (unless the Requisite Global Majority has otherwise agreed in
writing to indemnify the Administrative Agent) be payable on the immediately
succeeding Payment Date pursuant to the provisions of Section 302 or Section 806,
as applicable, hereof. Each Noteholder, the Indenture Trustee, each Series Enhancer
and each Hedge Counterparty shall, by accepting the benefits of this Indenture,
be deemed to have agreed that the duties of the Administrative Agent are not to
be construed as those of a replacement Manager. In connection with the
appointment of a replacement Manager, the Indenture Trustee or Administrative
Agent may, with the written consent of the Requisite Global Majority, make such
arrangements for the compensation of such replacement Manager out of
Collections as the Indenture Trustee, the Administrative Agent and such
replacement Manager shall agree; provided,
however, that no such revised
compensation shall be in excess of the Management Fees permitted the Manager
under the Management Agreement and the arrangement for reimbursement of
expenses shall be no more favorable than that set forth in the Management
Agreement unless the Requisite Global Majority shall approve such higher
amounts; provided, further, that in no event shall any of the
Indenture Trustee, any Series Enhancer, any Hedge Counterparty or the
Administrative Agent be liable to any replacement Manager for the Management
Fees or any additional amounts (including expenses and indemnifications)
payable to such replacement Manager, either pursuant to the Management
Agreement or otherwise. The Indenture Trustee and such successor shall take
such action, consistent with the Management Agreement, as shall be necessary to
effectuate any such succession including exercising the power of attorney
granted by the Manager pursuant to Section 9.4 of the Management
Agreement.


 


(b)           So long as a Manager Default
has occurred and a Manager Termination Notice has been delivered in accordance
with the terms of the Management Agreement, the Indenture Trustee may and
shall, if directed in writing by the Requisite Global Majority, after first
notifying the Issuer of its intention to do so, notify Account Debtors of the
Issuer (and the Issuer hereby agrees to provide the Indenture Trustee all
commercially reasonable information to identify and locate such Account
Debtors), parties to the Contracts of the Issuer, obligors in respect of
Instruments of the Issuer and obligors in respect of Chattel Paper of the
Issuer that the Accounts and the right, title and interest of the Issuer in and
under such Contracts, Instruments, and Chattel Paper (to the extent related to
the Managed Containers) have been pledged to Indenture Trustee and that
payments shall be made directly to the Indenture Trustee or the Trust Account;
provided that a replacement Manager appointed pursuant to this Section 405
shall unless otherwise directed by the Requisite Global Majority exercise all
of the foregoing rights, and that pending appointment of such replacement
Manager, the then current Manager shall, unless otherwise directed by the
Requisite Global Majority, be permitted to exercise such rights until the
replacement Manager assumes the responsibility of the Manager.  Upon the request of the Requisite Global
Majority, the Issuer shall, or shall direct Manager to, so notify such Account
Debtors, parties to such Contracts, obligors in respect of such Instruments and
obligors in respect of such Chattel Paper. 
So long as a Manager Default has occurred and a Manager Termination
Notice has been delivered in accordance with the terms of the Management
Agreement, the Indenture Trustee shall at the written direction of the
Requisite Global Majority communicate with such Account Debtors, parties to
such Contracts, obligors in


 


24














 


respect of such Instruments
and obligors in respect of such Chattel Paper to verify with such parties, the
existence, amount and terms of any such Accounts, Contracts, Instruments or
Chattel Paper.


 


(c)           Upon a Responsible Officer’s
obtaining actual knowledge or the actual receipt of written notice by the
Indenture Trustee that any repurchase obligations of the Seller under Section 3.03
of the Contribution and Sale Agreement have arisen, the Indenture Trustee shall
notify each Series Enhancer, each Rating Agency, each Hedge Counterparty
and the Administrative Agent of such event and shall enforce such repurchase
obligations at the written direction of the Requisite Global Majority.


 


(d)           The Indenture Trustee shall
be under no obligation to take any of the actions specified in Section 405(b) or
Section 405(c) unless the Indenture Trustee shall have security or
indemnity reasonably satisfactory to it against the costs and expenses which
may be incurred by the Indenture Trustee in taking such actions.


 


Section 406.           Quiet Enjoyment.  The security interest hereby granted to the
Indenture Trustee by the Issuer is subject to the right of any lessee to the
quiet enjoyment of the related Managed Container so long as such lessee is not
in default under the Lease therefor.


 


ARTICLE V


 


RIGHTS OF NOTEHOLDERS; ALLOCATION AND APPLICATION OF COLLECTIONS;
REQUISITE GLOBAL MAJORITY


 


Section 501.           Rights of Noteholders.  The Noteholders of each Series shall
have the right to receive, to the extent necessary to make the required payments
with respect to the Notes of such Series at the times and in the amounts
specified in the related Supplement, (i) the portion of Collections
allocable to Noteholders of such Series pursuant to this Indenture and the
related Supplement, (ii) funds on deposit in the Trust Account (subject to
the priorities set forth in Sections 302 and 806 hereof) and the Restricted
Cash Account and (iii) funds on deposit in any Series Account for
such Series, or payable with respect to any Series Enhancement for such Series.
Each Noteholder, by acceptance of its Notes, (a) acknowledges and agrees
that (except as expressly provided herein and in a Supplement entered into in
accordance with Section 1006(b) hereof) the Noteholders of a Series or
Class shall not have any interest in any Series Account or Series Enhancement
for the benefit of any other Series or Class and (b) ratifies
and confirms the terms of this Indenture and the Transaction Documents executed
in connection with such Series.


 


Section 502.           Collections and Allocations.  With respect to each Collection Period,
Collections on deposit in the Trust Account will be allocated to each Series then
Outstanding in accordance with Article III of this Indenture and the
Supplements.


 


Section 503.           Determination of Requisite
Global Majority.  A Requisite
Global Majority shall exist with respect to any action proposed to be taken
pursuant to the terms of this Indenture or any Supplement if (a) the
Control Party or Control Parties representing more than fifty percent (50%) of
the sum of the Existing Commitments of all Series of Outstanding Notes
shall approve or direct such proposed action (in making such a determination,
each Control Party shall be deemed to have voted the entire Existing Commitment
of the related Series in favor of, or in opposition to, such proposed
action, as the case may be) and (b) unless Control Parties representing
more than sixty-six and two-thirds percent (66 2/3%) of the sum of the Existing
Commitments of all Series shall have approved or directed such proposed
action (in making such a determination, each Control Party shall be deemed to
have voted the entire Existing Commitment of the related Series in favor
of, or in opposition to, such proposed action, as the case may be), each Series Enhancer
which is then a Control Party for any Series of Outstanding Notes shall
have also approved or directed such proposed action.  The Indenture Trustee shall be responsible
for 


 


25

















 


identifying the Requisite
Global Majority in accordance with the terms of this Section 503 based on
information provided by the Note Registrar.


ARTICLE VI


 


COVENANTS


 


For so long as any Outstanding Obligations have not
been paid or performed, the Issuer shall observe each of the following
covenants:


 


Section 601.           Payment of Principal and
Interest; Payment of Taxes.  (a)  The Issuer will duly and punctually
pay the principal of, and interest, on the Notes in accordance with the terms
of the Notes, this Indenture and the related Supplement.


 


(b)           The Issuer will take all
actions as are necessary to insure that all taxes, assessments and governmental
levies that are payable by the Issuer are paid when due except (i) such as
are contested in good faith and by appropriate proceedings and (ii) if the
failure to make such payment is not adverse in any material respect to the
Noteholders and does not give rise to any Liens other than Permitted
Encumbrances.


 


Section 602.           Maintenance of Office.  As of the Closing Date, the Issuer’s only “place
of business” within the meaning of Section 9-307 of the UCC is located at
its address set forth in Section 1307. The Issuer shall not establish a
new place of business or location for its chief executive office or change its
jurisdiction of formation unless (i) the Issuer shall provide each of the
Indenture Trustee, each Rating Agency, the Administrative Agent, each Hedge
Counterparty and each Series Enhancer not less than thirty (30) days’
prior written notice of its intention so to do, clearly describing such new
location and providing such other information in connection therewith as the
Indenture Trustee, the Administrative Agent, each Hedge Counterparty or each Series Enhancer
may reasonably request, (ii) not less than fifteen (15) days prior to the
effective date of such relocation, the Issuer shall have taken, at its own
cost, all action necessary so that such change of location does not impair the
security interest of the Indenture Trustee in the Collateral, or the perfection
of the sale or contribution of the Containers to the Issuer, and shall have
delivered to the Indenture Trustee, the Administrative Agent, each Hedge
Counterparty and each Series Enhancer copies of all filings required in
connection therewith and (iii) the Issuer has delivered to the Indenture
Trustee, the Administrative Agent, each Series Enhancer, each Hedge
Counterparty and each Rating Agency, one or more Opinions of Counsel
satisfactory to the Requisite Global Majority, stating that, after giving
effect to such change of location: (A) the Seller and the Issuer will not,
pursuant to applicable Insolvency Law, be substantively consolidated in the
event of any Insolvency Proceeding by, or against, the Seller, (B) under
applicable Insolvency Law, the transfers of Transferred Assets made in
accordance with the terms of the Transaction Documents will be treated as a “true
sale” in the event of any Insolvency Proceeding by, or against, the Seller and (C) either
(1) in the opinion of such counsel, all registration of charges, financing
statements, or other documents of similar import, and amendments thereto have
been executed (if applicable) and filed that are necessary to perfect the
interest of the Issuer and the Indenture Trustee in the Transferred Assets, or (2) stating
that, in the opinion of such counsel, no such action shall be necessary to
perfect such interest; provided that the opinions required in this Section 602(iii)(A) and
(B) shall not be required unless the Issuer establishes a new place of
business outside of the United States or a location for its chief executive
office outside of the United States or changes its jurisdiction of formation to
a location outside of the United States.


 


Section 603.           Corporate Existence.  The Issuer will keep in full effect its
existence, rights and franchises as a limited liability company organized under
the laws of the State of Delaware, and will obtain and preserve its
qualification in each jurisdiction in which such qualification is necessary to
protect the validity and enforceability of this Indenture, any Supplements and
the Notes except where 


 


26

















 


the failure to obtain or
preserve such qualification is not reasonably expected to result in a Material
Adverse Change.


 


Section 604.           Protection of Collateral.  The Issuer will from time to time execute (if
applicable) and file all financing statements, all amendments thereto and
continuation statements, instruments of further assurance and other
instruments, and will, upon the reasonable request of the Manager, the
Indenture Trustee, the Administrative Agent, any Hedge Counterparty or any Series Enhancer,
take such other action necessary or advisable to:


 


(a)           maintain or preserve the
Lien of this Indenture (and the priority thereof) including executing and
filing such documents as may be required under any international convention for
the perfection of interests in Managed Containers that may be adopted
subsequent to the date of this Indenture;


 


(b)           perfect, publish notice of,
and protect the validity of the security interest in the Collateral created
pursuant to this Indenture;


 


(c)           enforce any of the items of
the Collateral;


 


(d)           preserve and defend its
right, title and interest to the Collateral and the rights of the Indenture
Trustee in such Collateral against the claims of all Persons (other than the
Noteholders or any Person claiming through the Noteholders); and


 


(e)           pay any and all taxes levied
or assessed upon all or any part of the Collateral, except such as are
contested in good faith and by appropriate proceedings or where the failure to
effect such payment is not adverse in any material respect to the Noteholders.


 


In furtherance of clauses
(b) and (c) above, the Issuer hereby agrees that if at any time
subsequent to a Closing Date there is a change in Applicable Law (or a change
in the interpretation of Applicable Law as in effect on such Closing Date)
which, in the reasonable judgment of the Requisite Global Majority, may affect
the perfection of the Indenture Trustee’s security interest in the Collateral,
then the Issuer shall, within thirty (30) days after request from the Requisite
Global Majority, furnish to the Indenture Trustee, the Administrative Agent,
each Rating Agency and each Series Enhancer, an Opinion of Counsel either (i) stating
that, in the opinion of such counsel, such action has been taken with respect
to the recording, filing, recording and refiling of this Indenture, any
Supplements hereto and any other requisite documents, and with respect to the
filing of any financing statements and continuation statements, as are
necessary to maintain the Lien created by this Indenture and reciting the
details of such action, or (ii) stating that, in the opinion of such
counsel, no such action is necessary to maintain such Lien. Such Opinion of
Counsel shall also describe the recording, filing, re-recording and refiling of
this Indenture, any Supplements hereto and any other requisite documents and
the execution and filing of any financing statements and continuation
statements that, in the opinion of such counsel, are required to maintain the
lien and security interest of this Indenture.


 


Section 605.           Performance of Obligations.


 


(a)           Except as otherwise
permitted by this Indenture, the Management Agreement or the Contribution and
Sale Agreement, the Issuer will not take, or fail to take, any action, and will
use its best efforts not to permit any action to be taken by others, which
would release any Person from any of such Person’s covenants or obligations
under any agreement or instrument included in the Collateral, or which would
result in the amendment, hypothecation, subordination, termination or discharge
of, or impair the validity or effectiveness of, any such agreement or
instrument; provided that, nothing in this 


 


27

















 


Indenture shall prohibit the
Issuer, or the Manager on the Issuer’s behalf, from renegotiating, amending or
consenting to waivers to Leases in accordance with the terms of the Management
Agreement.


 


(b)           Nothing in this Indenture or
any Supplement shall be construed as requiring the consent of the Indenture
Trustee, any Series Enhancer or any Noteholder for the exercise by any
Hedge Counterparty of its rights to (i) terminate the related Hedge
Agreement in accordance with its terms in the event of any event of default or
termination event (however defined) under such Hedge Agreement, (ii) undertake
any permitted transfer under any Hedge Agreement, or (iii) reduce the
notional amount in accordance with the terms of any Hedge Agreement in the
event of a notional reduction event (however defined).


 


Section 606.           Negative Covenants.  The Issuer will not, without the prior
written consent of the Requisite Global Majority:


 


(a)           at any time sell, transfer,
exchange or otherwise dispose of any of the Collateral, except as follows:


 


(i)            in connection with a sale, conveyance or transfer
pursuant to the provisions of Section 612 or Section 816 hereof; or


 


(ii)           in connection with a substitution or repurchase of Managed
Containers as permitted or required in accordance with the terms of the
Contribution and Sale Agreement; or


 


(iii)          sales of Managed Containers (including any such sales
resulting from the sell/repair decision of the Manager) to unaffiliated third
parties that are not Sanctioned Persons, and to the extent that such sales are
on terms and conditions that would be obtained in an ordinary course,
arms-length transaction, to Affiliates regardless of the sales proceeds
realized from such sales so long as an Asset Base Deficiency is not then
continuing or would result from such sale of Managed Containers after giving
effect to the application of the proceeds of such sales; provided, however,
that (x) after giving effect to each such sale, the Issuer shall be in
compliance with Section 628 hereof (and the Issuer shall provide each
Interest Rate Hedge Provider notice of any such sale) and (y) if an Early
Amortization Event has occurred and is continuing or would result from any such
sale (after giving effect to the application of the proceeds thereof), no such
sale may be made to an Affiliate under this clause (iii) unless the net
proceeds from such sale are greater than or equal to the Adjusted Net Book
Value of the Containers being sold; or


 


(iv)          if an Asset Base Deficiency is then continuing or would
result from such sale of Managed Containers after giving effect to the
application of the proceeds of such sales, sales of Managed Containers
(including any such sales resulting from the sell/repair decision of the
Manager) regardless of the sales proceeds realized from such sales so long as (A) no
Event of Default is then continuing or would result from such sale, (B) any
sales to Affiliates made pursuant to this clause (iv) are made on
terms and conditions that would be obtained in an ordinary course, arms-length
transaction and the net proceeds from any such sale are greater than or equal
to the Adjusted Net Book Value of the Managed Containers being sold, (C) after
giving effect to each such sale, the Issuer shall be in compliance with Section 628
hereof (and the Issuer shall provide each Interest Rate Hedge Provider notice
of any such sale) and (D) the aggregate sum of the Net Book Values of all
Managed Containers that were sold pursuant to this clause (iv) during
the applicable Collection Period and the three (3) immediately
preceding Collection Periods for proceeds which are less than the Adjusted Net
Book Value of the Managed 


 


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Containers so sold does not exceed an amount
equal to the product of (x) five percent (5%) times (y) an amount
equal to a quotient (A) the numerator of which is equal to the sum of the
aggregate Net Book Value of all Managed Containers as of the last day of each
of the four (4) immediately preceding Collection Periods and (B) the
denominator of which is equal to four (4); or


 


(v)           any other sales of Managed Containers to Persons that are
not Sanctioned Persons which are not covered by the preceding clauses provided
that each such sale shall be specifically approved by (A) the Requisite
Global Majority and (B) the managers of the Issuer in accordance with the
provisions of the Issuer’s limited liability company agreement; or


 


(vi)          in connection with a Casualty Loss.


 


Notwithstanding the foregoing limitation of this Section 606(a),
sales of Managed Containers shall be permitted at such other times and in such
other amounts as the Indenture Trustee (acting at the direction of the
Requisite Global Majority) shall permit.


 


Notwithstanding anything to the contrary, during the
continuation of an Early Amortization Event, the Issuer shall not sell all, or
substantially all, of the Managed Containers without the consent of the
Requisite Global Majority, each Hedge Counterparty and each Series Enhancer
(if such Series Enhancer is then the Control Party for a Series of
Outstanding Notes or shall have made an unreimbursed payment on its Enhancement
Agreement) if an Asset Base Deficiency shall have occurred and be continuing or
would result from such proposed sale after giving effect to the application of
the proceeds of such sales.


 


(b)           claim any credit on, make
any deduction from the principal, premium, if any, or interest payable in
respect of the Notes (other than amounts properly withheld from such payments
under any Applicable Law) or assert any claim against any present or former
Noteholder by reason of the payment of any taxes levied or assessed upon any of
the Collateral; or


 


(c)           release any item from the
Collateral, except as permitted pursuant to the terms of a Transaction
Document.


 


Section 607.           Corporate
Separateness of the Issuer.


 


(a)           The Issuer shall (1) conduct
its business in its own name, (2) maintain its books and records separate
from those of any other Person, (3) not commingle its funds with any other
Person (except for any commingling of Collections which may occur prior to the
identification and segregation of such amounts in accordance with the terms of
the Management Agreement) and maintain its bank accounts separate from those of
any other Person, (4) maintain separate financial statements, showing its
assets and liabilities separate and apart from those of any other Person, (5) hold
itself out as a separate entity and (6) observe all other organizational
formalities.


 


(b)           Notwithstanding any
provision of law which otherwise empowers the Issuer, the Issuer shall not (1) hold
itself out as being liable for the debts of any other Person, (2) act
other than in its limited liability company name and through its duly
authorized officers, managers or agents, (3) enter into any transaction
described in Section 610 (except pursuant to this Indenture) other than
trade payables and expense accruals incurred in the ordinary course of its
business, or (4) engage in any other activity not contemplated by this
Indenture or other Transaction Documents.


 


29

















 


Section 608.           No Bankruptcy Petition.  The Issuer shall not (1) commence any
Insolvency Proceeding seeking to have an order for relief entered with respect
to it, or seeking reorganization, arrangement, adjustment, wind-up,
liquidation, dissolution, composition or other relief with respect to it or its
debts, (2) seek appointment of a receiver, trustee, custodian or other
similar official for it or any part of its assets, (3) make a general
assignment for the benefit of creditors, or (4) take any action in
furtherance of, or consenting or acquiescing in, any of the foregoing.


 


Section 609.           Liens.  The Issuer shall not (i) permit any Lien
(except any Permitted Encumbrance) to be created on or extend to or otherwise
arise upon or burden the Collateral or any part thereof or any interest therein
or the Proceeds thereof, or (ii) permit the Lien of this Indenture not to
constitute a valid first priority perfected security interest in the Collateral
to the extent that such Lien can be perfected pursuant to Applicable Law.


 


Section 610.           Other Debt.  The Issuer shall not contract for, create,
incur, assume or suffer to exist any Indebtedness of the Issuer other than (i) the
Notes issued pursuant to this Indenture or any Supplement, (ii) any
Management Fee, Manager Advances and all other amounts payable pursuant to the
provisions of the Management Agreement and reimbursements payable pursuant to
the terms of the Parent Guaranty, (iii) any obligation (including a
deferred purchase price note and any normal warranty) arising in connection
with a purchase or sale of Containers permitted by the Transaction Documents
(as in effect as of the date hereof and as amended, restated or otherwise modified
after the date hereof in accordance with the terms thereof), but only to the
extent of the time limit contemplated by Section 3.01(ii) of the
Contribution and Sale Agreement, (iv) any Indebtedness (including any
Hedge Agreement) that is permitted or required pursuant to the terms of any
Transaction Document, and (v) trade payables and expense accruals incurred
in the ordinary course and which are incidental to the purposes permitted
pursuant to the Issuer’s organizational documents.


 


Section 611.           Guarantees, Loans, Advances
and Other Liabilities. 
Except for investments in Eligible Investments, the Issuer will not make
any loan, advance or credit to, or guarantee (directly or indirectly or by an
instrument having the effect of assuring another’s payment or performance on
any obligation or capability of so doing, or otherwise), endorse (except for
the endorsement of checks for collection or deposit) or otherwise become
contingently liable, directly or indirectly, in connection with the
obligations, stock or dividends of, or own, purchase, repurchase or acquire (or
agree contingently to do so) any stock, obligations or securities of, or any
other interest in, or make any capital contribution to, any other Person.  However, the preceding sentence shall not
limit the terms of any Note Purchase Agreement or Enhancement Agreement or
prevent the execution, delivery and performance of any Note Purchase Agreement
or Enhancement Agreement by the Issuer.


 


Section 612.           Consolidation, Merger and
Sale of Assets.  (a) The
Issuer shall not consolidate with or merge with, or into, any other Person or
sell, convey, transfer or lease any of its assets, whether in a single
transaction or a series of transactions, to any Person except for (i) any
such sale, conveyance or transfer contemplated in this Indenture or any
Supplement or the Management Agreement and (ii) the leasing or sale of the
Managed Containers in accordance with the terms of the Management Agreement.


 


(b)           The obligations of the Issuer hereunder shall not be
assignable nor shall any Person succeed to the obligations of the Issuer
hereunder except in each case in accordance with the provisions of this
Indenture.


 


Section 613.           Other Agreements; Amendment
of Transaction Documents.  (a) 
The Issuer will not after the date of the issuance of any Notes enter into, or
become a party to, any agreements or instruments other than the Transaction
Documents and any other agreement(s) contemplated by the terms of the
Transaction Documents, including, without limitation, (i) any agreement(s) for
disposition of 


 


30

















 


the Transferred Assets
permitted by Sections 606, 804 or 816 hereof and (ii) any agreement(s) for
the sale, repurchase, lease or re-lease of a Managed Container made in accordance
with the provisions of the Contribution and Sale Agreement and the Management
Agreement.


 


(b)           The Issuer will not amend,
modify or waive any provision of any Transaction Document, or give any approval
or consent or permission provided for therein, except in accordance with the
express terms of such Transaction Document.


 


Section 614.           Charter Documents.  The Issuer will not amend or modify (a) its
certificate of formation or (b) Section 4.1, 8.3, 8.4, 16.1, 16.2,
16.3 or 16.9 of its limited liability company agreement without (i) the
prior written consent of the Requisite Global Majority and (ii) satisfaction
of the Rating Agency Condition.  Except
as otherwise provided in clause (b) above, the Issuer shall deliver
written notice to each Rating Agency of any amendment or modification to its
limited liability company agreement.


 


Section 615.           Capital Expenditures.  The Issuer will not make any expenditure (by
long term or operating lease or otherwise) for capital assets (both realty and
personalty), except for (a) acquisition of additional Managed Containers
from the Seller in accordance with the terms of the Contribution and Sale
Agreement or (b) capital improvements to the Managed Containers made in
the ordinary course of its business and in accordance with the terms of the
Management Agreement.


 


Section 616.           Permitted Activities;
Compliance with Organizational Documents.  The Issuer will not engage in any activity or
enter into any transaction except for those activities that are specified in
its organizational documents or that are contemplated by a Transaction
Document. The Issuer will observe all organizational and managerial procedures
required by its organizational documents and applicable law. The Issuer shall (i) keep
complete minutes of the meetings of the managers and/or members of the Issuer
and (ii) continuously maintain the resolutions, agreements and other
instruments underlying the transaction contemplated by the Transaction
Documents.


 


Section 617.           Investment Company Act.  The Issuer will conduct its operations in a
manner which will not subject it to registration as an “investment company”
under the Investment Company Act of 1940, as amended.


 


Section 618.           Payments of Collateral.  If the Issuer shall receive from any Person
any payments with respect to the Collateral (to the extent such Collateral has
not been released from the Lien of this Indenture), the Issuer shall receive
such payment in trust for the Indenture Trustee, as secured party hereunder,
and subject to the Indenture Trustee’s security interest and shall deposit such
payment in the Trust Account as required under this Indenture.


 


Section 619.           Notices.  The Issuer shall notify the Indenture
Trustee, each Hedge Counterparty and each Series Enhancer in writing of
any of the following promptly, but in any event within seven (7) Business
Days upon an Authorized Officer learning of the occurrence thereof, describing
the same and, if applicable, the steps being taken by the Person(s) affected
with respect thereto:


 


(a)           Default.  The occurrence of an Event of Default;


 


(b)           Litigation.  The institution of any litigation,
arbitration proceeding or Proceeding before any Governmental Authority which
reasonably will be expected to result in a Material Adverse Change;


 


(c)           Material Adverse Change.  The occurrence of a Material Adverse Change;
or


 


31

















 


(d)           Other Events.  The occurrence of an Early Amortization Event
or such other events that would, with the giving of notice or the passage of
time or both, constitute an Event of Default or an Early Amortization Event.


 


Section 620.           Books and Records.  The Issuer shall maintain complete and
accurate books and records in which full and correct entries in conformity with
GAAP shall be made of all dealings and transactions in relation to its business
and activities. In connection with each transfer of Transferred Assets to the
Issuer, the Issuer shall report, or cause to be reported, on its financial
records the transfer of the Transferred Assets as a purchase or capital
contribution (if applicable) under GAAP. The Issuer will ensure that any
consolidated financial statements of TAL and TAL International Group note that
Issuer is a bankruptcy remote special purpose subsidiary established to obtain
securitized financing.


 


Section 621.           Subsidiaries.  The Issuer shall not create any Subsidiaries.


 


Section 622.           Investments.  The Issuer shall not make or permit to exist
any Investment in any Person except for Investments in Eligible Investments
made in accordance with the terms of this Indenture.


 


Section 623.           Use of Proceeds.  (a) The Issuer shall use the proceeds of
the Notes only for (i) the purchase of Containers and Related Assets and (ii) other
general company purposes including the distribution of dividends, repayment of
debt and paying costs relating to the issuance of the Notes and any other
purposes contemplated by Section 302.


 


(b)           The Issuer shall not permit
any proceeds of the Notes to be used, either directly or indirectly, for the
purpose, whether immediate, incidental or ultimate, of “purchasing or carrying
any margin stock” within the meaning of Regulation U of the Board of Governors
of the Federal Reserve System, as amended from time to time, and shall furnish
to each Noteholder, upon its request, a statement in conformity with the
requirements of Regulation U.


 


Section 624.           Asset Base Certificate.  The Issuer shall prepare and deliver to the
Indenture Trustee on or before each Determination Date, an Asset Base
Certificate as of the end of the immediately preceding fiscal month of the
Issuer.


 


Section 625.           Financial Statements.  The Issuer shall deliver to the Indenture
Trustee the following financial statements prepared in accordance with GAAP
(subject to the limitations set forth below): 
(a) the quarterly financial statements of the Issuer within sixty
(60) days after the end of each fiscal quarter ending on or after December 31,
2009; (b) annual unaudited financial statements of the Issuer within one
hundred and twenty (120) days after the end of each fiscal year ending on or
after December 31, 2009; (c) annual audited consolidated and
unaudited consolidating financial statements of TAL International Group and its
consolidated subsidiaries together with the report of its Independent
Accountants, within (x) in the event that TAL International Group shall
not then have at least one class of securities registered under the Exchange
Act, one hundred fifty (150) days after the end of each fiscal year ending on
or after December 31, 2009, or (y) in the event that TAL
International Group shall then have at least one class of securities registered
under the Exchange Act, the earlier of (A) one hundred fifty (150) days
after the end of each fiscal year ending on or after December 31, 2009, or
(B) ten (10) days following TAL International Group’s filing of
such annual audited consolidated financial statements with the Securities and
Exchange Commission; (d) beginning with the fiscal year ending December 31,
2009, within one hundred fifty (150) days after the end of each fiscal year of
TAL International Group, a report addressed to the manager of the Issuer, to
the effect that such firm of accountants has audited the books and records of
TAL International Group, and issued its report in connection with the audit report
on the consolidated financial statements of TAL International Group and
specifying the results of the application of such agreed upon procedures, as
the Administrative Agent shall reasonably agree from time to time, 


 


32

















 


relating to the objectives
specified on Exhibit D to the Management Agreement; and (e) within
sixty (60) days after the close of the first three fiscal quarters in each
fiscal year of TAL International Group, the consolidated balance sheet of TAL
International Group and its consolidated subsidiaries as at the end of such
fiscal quarter, the related consolidated statements of income for such fiscal
quarter and cash flows for the elapsed portion of the fiscal year ended with
the last day of such fiscal quarter.  All
such financial statements shall be prepared in accordance with GAAP, subject
to, in the case of unaudited financial statements, the absence of footnotes,
and in the case of the quarterly financial statements, the absence of year-end
adjustments. In addition to the foregoing, within one hundred fifty (150) days
after the end of each fiscal year, the Issuer shall deliver to the Indenture
Trustee, each Rating Agency and each Series Enhancer an Officer’s
Certificate certifying that, as of the date of such certificate, there have
been no changes in the name or jurisdiction of formation of the Issuer.  Delivery of such reports, information and
documents to the Indenture Trustee is for informational purposes only and the
Indenture Trustee’s receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information contained
therein, including the Issuer’s compliance with any of its covenants hereunder
(as to which the Indenture Trustee is entitled to rely exclusively on Officer’s
Certificates).  In the event such
independent public accountants require the Indenture Trustee to agree to the
procedures to be performed by such firm in any of the reports required to be
prepared pursuant to this Section 625 the Issuer or the Administrative
Agent shall direct the Indenture Trustee in writing to so agree; it being
understood and agreed that the Indenture Trustee will deliver such letter of
agreement in conclusive reliance upon the direction of the Issuer or the
Administrative Agent, as the case may be, and the Indenture Trustee has not
made any independent inquiry or investigation as to, and shall have no
obligation or liability in respect of, the sufficiency, validity or correctness
of such procedures.


 


Section 626.           UNIDROIT Convention.  The Issuer shall comply with the terms and
provisions of the UNIDROIT Convention or any other internationally recognized
system for recording interests in or liens against shipping containers at the
time that such convention is adopted.


 


Section 627.           Other Information.  For so long as any of the Notes are “restricted
securities” within the meaning of Rule 144(a)(3) under the Securities
Act and the Issuer is not subject to Section 13 or 15(d) of the
Exchange Act, the Issuer will, provide or cause to be provided to any
Noteholder and any prospective purchaser thereof designated by such a
Noteholder, upon the request of such Noteholder or prospective purchaser, the
information required to be provided to such Noteholder or prospective purchaser
by Rule 144A(d)(4) under the Securities Act.


 


Section 628.           Hedging Requirement.  (a)  On the date of the initial Series 2009-1
Advance (as defined in the Series 2009-1 Supplement), the Issuer will
enter into, and maintain for so long as any Notes or other obligations under
the Transaction Documents remain unpaid, one or more Interest Rate Hedge
Agreements with an aggregate notional balance (x) equal to or exceeding
the product of (i) seventy-five percent (75%) and (ii) the  portion of the Asset Base that is
attributable to those Eligible Containers that are, at such time, subject to an
unexpired Lease (including a Finance Lease) that requires the lessee to
maintain specific containers on-hire for the duration of such Lease (the amount
described in this clause (x), the “Minimum Hedging Amount”) and (y) less
than or equal to the product of (i) one hundred five percent (105%) and (ii) the  portion of the Asset Base that is
attributable to those Eligible Containers that are contemplated in clause (x)(ii) above
(the amount described in this clause (y), the “Maximum Hedging Amount”), all of
which Interest Rate Hedge Agreements shall have a projected amortization
schedule in accordance with Exhibit F hereto.


 


(b)           If the Issuer, or the
Manager, on behalf of the Issuer, fails to comply with the Hedging Requirement,
the Requisite Global Majority shall have the right, in its sole discretion and
at the expense of the Issuer, upon thirty (30) days notice, if necessary (as
determined in the sole discretion of the Requisite Global Majority), to direct
the Indenture Trustee, to enter into, maintain or terminate (in whole or in
part), one or more Interest Rate Hedge Agreements selected by the Requisite
Global Majority (in its 


 


33

















 


sole discretion) on behalf
of the Issuer such that, after giving effect to such action, the Issuer will be
in compliance with the Hedging Requirement. In the event the Requisite Global
Majority determines to direct the Indenture Trustee to enter into, maintain or
terminate (in whole or in part) an Interest Rate Hedge Agreement on the Issuer’s
behalf, the Requisite Global Majority shall promptly send a copy of any such
agreement to the Issuer and may provide the Indenture Trustee and Manager on
behalf of the Issuer with a written direction to deposit in the Trust Account
certain amounts to reimburse the Requisite Global Majority or a third party for
the costs of such Interest Rate Hedge Agreement.


 


(c)           If at any time while the
Notes are Outstanding an Interest Rate Hedge Counterparty ceases to be an
Investment Grade Entity, the Issuer shall within sixty (60) days after it
obtains knowledge of such event, either (i) replace the non-conforming
Interest Rate Hedge Counterparty with an Eligible Interest Rate Hedge
Counterparty or (ii) require the non-conforming Interest Rate Hedge
Counterparty to deliver a letter of credit or provide alternative credit
support in order to support its obligations under the Interest Rate Hedge
Agreement, as the Issuer and such non-conforming Interest Rate Hedge
Counterparty may agree, subject to the consent of the Requisite Global Majority
and the prior written confirmation that the Rating Agency Condition has been
satisfied.


 


(d)           All payments received from
all such Interest Rate Hedge Agreements shall be deposited directly into the
Trust Account.  Any amounts delivered by
an Interest Rate Hedge Counterparty pursuant to a Credit Support Annex to the
Interest Rate Hedge Agreement shall be held in a separate, segregated trust
account subject to the terms of the Interest Rate Hedge Agreement.


 


Section 629.           Ownership of Issuer.  All of the issued and outstanding membership
interests in the Issuer shall be owned by TAL or any of its Subsidiaries.


 


Section 630.           [Intentionally
Omitted].


 


Section 631.           Tax Election of the Issuer.  The Issuer will not elect or agree to elect
to be treated as an association taxable as a corporation for United States
federal income tax or any State income or franchise tax purposes.


 


Section 632.           Rating Agency Notices.  Subject to the application of applicable law,
the Issuer shall promptly deliver a copy of any written notice concerning the
Issuer’s credit rating received by it from any Rating Agency to the Indenture
Trustee, each Hedge Counterparty and each Series Enhancer.


 


Section 633.           Compliance with Law.  The Issuer shall comply with any applicable
statute, license, rule or regulation by which it or any of its properties
may be bound if the failure to comply would reasonably be expected to result in
a Material Adverse Effect.


 


Section 634.           OFAC.  The Issuer shall not (i) in a manner
which would violate the laws of the United States, other than pursuant to a
license issued by OFAC, lease, or consent to any sublease of, any of the
Containers to any Person that is a Sanctioned Person or (ii) derive any of
its assets or operating income from investments in or transactions with any
such Sanctioned Person.  If the Issuer
obtains knowledge that a container is subleased to a Sanctioned Person or located
or used in a Sanctioned Country in a manner which would violate the laws of the
United States (other than pursuant to a license issued by OFAC), then the
Issuer shall, within ten (10) Business Days after obtaining knowledge
thereof, remove such Container from the Asset Base for so long as such
condition continues.


 


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ARTICLE VII



DISCHARGE OF INDENTURE; PREPAYMENTS


 


Section 701.                                Full Discharge.  Upon payment in full of all Outstanding
Obligations, the Indenture Trustee shall execute and deliver to the Issuer such
deeds or other instruments as shall be requisite to evidence the satisfaction
and discharge of this Indenture and the security hereby created with respect to
each Series, and to release the Issuer from its covenants contained in this
Indenture and the related Supplement with respect to each such Series.  In connection with the satisfaction and
discharge of this Indenture, the Indenture Trustee shall be provided with, and
shall be entitled to conclusively rely upon, an Opinion of Counsel stating that
all conditions precedent specified in the Indenture to such satisfaction and
discharge have been satisfied.


 


Section 702.                                Prepayment of
Notes.


 


(a)                                  Mandatory
Prepayments.  Unless
otherwise specified in a Supplement, the Issuer shall be required to prepay the
then unpaid principal balance of all, or a portion of, one or more Series of
Notes then Outstanding and all amounts due under the related Hedge Agreements
(including any termination payments) if, on any Payment Date, an Asset Base
Deficiency exists, and has not otherwise been cured by such date through the
acquisition of additional Eligible Containers or otherwise.  Such Prepayment (a “Supplemental Principal
Payment”) shall be in the amount of such Asset Base Deficiency and shall be
paid in accordance with the priority of payments set forth in Section 302
hereof. The calculations referred to herein shall be evidenced by the Asset
Base Certificate received by the Indenture Trustee on any Determination
Date.  On each Payment Date, any
Supplemental Principal Payment Amount then due and owing shall be applied first
to each Series of Warehouse Notes then Outstanding on a pro rata basis, in
proportion to the then unpaid principal balance of such Warehouse Notes, until
the principal balances of all Warehouse Notes have been paid in full, and then
to all Series of Term Notes then Outstanding on a pro rata basis, in
proportion to the then unpaid principal balance of each such Series of
Term Notes.  Notwithstanding the
foregoing, if sufficient funds are not available to allow the Issuer to prepay
the principal balance of the Warehouse Notes in an amount equal to the Asset
Base Deficiency on such Payment Date, then the amount of any Supplemental
Principal Payment Amount to be actually paid on such Payment Date shall be
allocated among all Series of Notes then Outstanding (including the Term
Notes) on a pro rata basis, in proportion to the then unpaid principal balance
of such Notes.


 


(b)                                 Voluntary
Prepayments.  So long as
no Early Amortization Event is then continuing, the Issuer may, from time to
time, make an optional Prepayment of principal of the Notes of a Series at
the times, in the amounts and subject to the conditions and limitations set
forth in the Supplement for the Series of Notes to be prepaid, and all
amounts due under the Hedge Agreements (including any termination payments).  If an Early Amortization Event is then
continuing, all optional Prepayments made in accordance with the provisions of
this Section 702(b) shall be applied in accordance with the
applicable provisions of Section 302 hereof.  The Issuer shall promptly confirm any
telephonic notice of prepayment in writing. 
Any optional Prepayment of principal made by the Issuer pursuant to this
Section 702(b) shall also include accrued interest to the date of the
prepayment on the amount being prepaid. 
Any optional Prepayment made pursuant to the provisions of this Section 702(b) shall
be accomplished by a deposit of funds directly into the Trust Account and,
unless otherwise specified in the Supplement for any Series of Notes then
Outstanding, may be applied by the Issuer to reduce the unpaid principal
balance of one or more Series of Notes then Outstanding, such Series to
be selected in the sole discretion of the Issuer.  Notice of any voluntary prepayment of a Series of
Term Notes to be made by the Issuer pursuant to the provisions of this Section 702(b) shall
be given by the Issuer to the Indenture Trustee and, if applicable, the
Noteholders of the Series of Notes to be prepaid, not later than the third
(3rd) Business Day (or such longer period of time as specified in the related
Supplement for a Series) 


 


35

















 


prior to the date of such
prepayment and not earlier than the Payment Date immediately preceding the date
of such Prepayment.


 


(c)                                  Adjustment of
Prospective Minimum Principal Payment Amounts and Scheduled Principal Payment
Amounts.  In the event that the Issuer
makes a Prepayment of less than all of the aggregate unpaid principal balance
of any Series of Term Notes in accordance with the provisions of Section 702(a) or
Section 702(b), then the Issuer shall promptly (but in any event within
five (5) Business Days after the date on which such Prepayment is made)
thereafter recalculate (subject to verification by each Series Enhancer)
the Minimum Principal Payment Amount and Scheduled Principal Payment Amount for
each future Payment Date such that, after giving effect to such adjustment, the
Minimum Principal Payment Amounts and Scheduled Principal Payment Amounts for
all subsequent Payment Dates for such Series of Term Notes shall be
reduced by an amount equal to the quotient of (i) the aggregate amount of
the Prepayment actually received by the Noteholders of such Series divided
by (ii) the number of remaining Payment Dates to and including, (A) the
Legal Final Maturity Date (with respect to the Minimum Principal Payment
Amount) or (B) the Expected Final Maturity Date (with respect to the
Scheduled Principal Payment Amount), for such Series of Notes.


 


Section 703.                                Unclaimed Funds.  In the event that any amount due to any
Noteholder remains unclaimed, the Issuer shall, at its expense, cause to be
published once, in the eastern edition of The Wall Street Journal, notice that
such money remains unclaimed. Any such unclaimed amounts shall not be invested
by the Indenture Trustee (notwithstanding the provisions of Section 303
hereof) and no additional interest shall accrue on the related Note subsequent
to the date on which such funds were first available for distribution to such
Noteholder. Any such unclaimed amounts shall be held by the Indenture Trustee
in trust until the latest of (i) two (2) years after the date of the
publication described in the second preceding sentence, (ii) the date all
other Noteholders of such Series shall have received full payment of all principal,
interest, premium, if any, and other sums payable to them on such Notes or the
Indenture Trustee shall hold (and shall have notified the Noteholders that it
holds) in trust for that purpose an amount sufficient to make full payment
thereof when due and (iii) the date the Issuer shall have fully performed
and observed all its covenants and obligations contained in this Indenture and
the related Supplement with respect to such Series of Notes.  Thereafter, any such unclaimed amounts shall
be paid to the Issuer by the Indenture Trustee on written demand; and thereupon
each of the Indenture Trustee and the Issuer shall be released from all further
liability with respect to such monies, and thereafter the Noteholders in
respect of which such monies were so paid to the Issuer shall have no rights in
respect thereof; provided, that
if such money or any portion thereof that would be paid to the Issuer had been
previously deposited by the Series Enhancer of such Series with the
Indenture Trustee for the payment of principal or interest on the Notes of such
Series, to the extent any amounts are owing to such Series Enhancer, such
amounts shall be paid promptly to such Series Enhancer.


 


ARTICLE VIII



DEFAULT PROVISIONS AND REMEDIES


 


Section 801.                                Event of Default.  “Event of Default”, wherever used herein with
respect to any Series of Notes, means any one of the following events
(whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of
any Governmental Authority):


 


(1)                                  the occurrence
of the events set forth in clause (A), clause (B) or clause (C) at
the times set forth therein;


 


36

















 


(A)                              default in (x) the
payment on any Payment Date of any interest payment then due and payable on any
Series of Notes , any scheduled payment due by the Issuer on any Interest
Rate Hedge Agreement then in effect or any Minimum Principal Payment Amount for
such Payment Date and the continuation of such default for more than three (3) Business
Days, or (y) the payment on the Legal Final Maturity Date of any Series of
Notes of the then unpaid principal balance of such Series of Notes;


 


(B)                                default in the
payment of (x) any Indenture Trustee’s Fees then due and payable or (y) a
Premium or other amounts due and owing to any Series Enhancer, and the
continuation of such default contemplated by clause (x) or clause (y) of
this clause (B) for more than five (5) Business Days after the
amounts in such clause (x) or clause (y) shall have become
due and payable in accordance with the terms of such Notes, this Indenture
and/or the related Supplement;


 


(C)                                default in the
payment of other amounts not dealt with in clauses (A) or (B) above
owing to the Noteholders of any Series and the continuation of such
default for more than thirty (30) days after the same shall have become
due and payable in accordance with the terms of such Notes, this Indenture and
the related Supplement;


 


(2)                                  default in the
observation or performance of any covenant of the Issuer set forth in Sections
608, 612 or 621 hereof which breach materially and adversely affects the
interest of any Noteholder or Series Enhancer (if such Series Enhancer
is then the Control Party for a Series of Outstanding Notes or shall have
made an unreimbursed payment on its Enhancement Agreement);


 


(3)                                  the occurrence
of the events set forth in clause (A) or (B) at the times set forth
therein:


 


(A)                              default in the
observation or performance of any covenant of the Issuer set forth in Sections
606, 607, 609, 610, 611, 613(a), 616 or 622 hereof which breach materially and
adversely affects the interest of any Noteholder or Series Enhancer (if
such Series Enhancer is then the Control Party for a Series of
Outstanding Notes or shall have made an unreimbursed payment on its Enhancement
Agreement), and, if curable, continues unremedied for fifteen (15) days after
the earlier of the date (x) on which there has been given to the Issuer,
by the Indenture Trustee, any Series Enhancer or any Noteholder, a written
notice specifying such default or breach and requiring it to be remedied and (y) any
authorized officer of the Issuer or any Authorized Officer of the Manager shall
have knowledge of such default or breach;


 


(B)                                default in any
material respect in the observation or performance of any covenant of the
Issuer set forth in Sections 619(a) or 619(d) and the continuation of
such default for three (3) Business Days;


 


(4)                                  the occurrence
of the events set forth in clause (A), (B) or (C) at the times set
forth herein:


 


(A)                              default in the
observation or performance of any covenant of the Issuer set forth in Sections
602, 614, 615 or 623(b) hereof, which breach if curable, 


 


37

















 


continues for thirty (30)
days after the earlier of the date (x) on which there has been given to
the Issuer, by the Indenture Trustee, any Series Enhancer or any
Noteholder, a written notice specifying such default or breach and requiring it
to be remedied and (y) on which any authorized officer of the Issuer or
any Authorized Officer of the Manager shall have knowledge of such default or
breach;


 


(B)                                default in any
material respect in the observation or performance of any covenant of the
Issuer set forth in Sections 613(b), 624 or 632 and, if curable, which
continues for fifteen (15) days after the earlier of the date (x) on which
there has been given to the Issuer, by the Indenture Trustee, any Series Enhancer
or any Noteholder, a written notice specifying such default or breach and
requiring it to be remedied and (y) on which any authorized officer of the
Issuer or any Authorized Officer of the Manager shall have knowledge of such
default or breach;


 


(C)                                default in any
material respect in the observation or performance of any covenant of the
Issuer to deliver financial statements and reports set forth in the first
sentence of Section 625 and the continuation of such default for fifteen
(15) days after the earlier of the date (x) on which there has been given
to the Issuer, by the Indenture Trustee, any Series Enhancer or any
Noteholder, a written notice specifying such default or breach and requiring it
to be remedied and (y) on which any authorized officer of the Issuer or
any Authorized Officer of the Manager shall have knowledge of such default or
breach; provided, however,
that (w) if the reason for such default is primarily attributable to
changes in accounting principles or interpretations or the application of the
same, (x) such changes are not related to the assets of the Issuer, and (y) no
Manager Default then exists under Sections 9.1.9 through 9.1.12 of the
Management Agreement, and (z) if the Issuer is diligently attempting to
effect such cure at the end of the thirty (30) day period, then the Issuer
shall be entitled to an additional thirty (30) day period to complete such
cure;


 


(5)                                  default in the
performance, or breach, in any material respect, of (a) any covenant of
the Issuer in this Indenture or any other Transaction Document (other than a
covenant or agreement a breach of which or default in the performance of which
is specifically dealt with elsewhere in this Section 801), which breach,
if curable, continues for thirty (30) days after the earlier of the date (x) on
which there has been given to the Issuer, by the Indenture Trustee, any Series Enhancer
or any Noteholder, a written notice specifying such default or breach and
requiring it to be remedied and (y) on which any authorized officer of the
Issuer or any Authorized Officer of the Manager shall have knowledge of such
default or breach, provided, however,
that if the Issuer is diligently attempting to effect such cure at the end of
such thirty (30) day period, the Issuer shall be entitled to an additional
thirty (30) day period in which to complete such cure; or (b) any
representation or warranty of the Issuer made in any of the Transaction
Documents or in any certificate or other writing delivered pursuant hereto or
thereto or in connection herewith with respect to or affecting any Outstanding
Notes shall prove to be inaccurate in any respect which materially and
adversely affects the interests of any Noteholder or any Series Enhancer
(if such Series Enhancer is then the Control Party for a Series of
Outstanding Notes or shall have made an unreimbursed payment on its Enhancement
Agreement) as of the time when the same shall have been made, and such
inaccuracy, if curable, 


 


38

















 


continues for thirty (30)
days after the date on which there has been given to the Issuer by the
Indenture Trustee, or to the Issuer and the Indenture Trustee by any Series Enhancer
or any Noteholders, a written notice specifying such inaccuracy and requiring it
to be remedied, provided, however,
that if such inaccuracy is capable of cure and the Issuer is diligently
attempting to effect such cure at the end of such thirty (30) day period,
the Issuer shall be entitled to an additional thirty (30) day period in which
to complete such cure;


 


(6)                                  an involuntary
case is commenced under the Bankruptcy Code against the Issuer and the petition
is not controverted within 10 days, or is not dismissed within sixty (60) days,
after commencement of the case, or a decree or order for relief by a court
having jurisdiction in respect of the Issuer is entered appointing a receiver,
liquidator, assignee, custodian, trustee, or sequestrator (or other similar
official) for the Issuer or for any substantial part of its properties, or
ordering the winding up or liquidation of its affairs, and the continuance of
any such decree or order unstayed and in effect for a period of sixty (60)
consecutive days;


 


(7)                                  the
commencement by the Issuer of a voluntary case under any applicable Insolvency
Law, or other similar law now or hereafter in effect, or the consent by the
Issuer to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or other similar official) of the
Issuer, or any substantial part of its properties, or the making by the Issuer
of any general assignment for the benefit of creditors, or the failure by the
Issuer generally to pay its debts as they become due, or the taking of
corporate action by the Issuer in furtherance of any such action;


 


(8)                                  the Aggregate
Note Principal Balance shall exceed the Asset Base and such condition continues
for thirty (30) days without being cured or waived by each Control Party;


 


(9)                                  the occurrence
of a contribution failure with respect to a Plan maintained by Issuer or an
ERISA Affiliate of the Issuer, which contribution failure is sufficient to give
rise to a lien under Section 302(f) of ERISA; or


 


(10)                            the Indenture
Trustee shall fail to have a first priority perfected security interest under
the laws of the United States in any material portion of the Collateral (other
than as a result of a Permitted Encumbrance) and such condition continues for
fifteen (15) days without being cured or waived by each Control Party unless
such failure to have a first priority perfected security interest is due to any
act or omission of the Indenture Trustee or the Noteholders;


 


(11)                            the Issuer is
required to register as an investment company under the Investment Company Act
of 1940, as amended;


 


(12)                            the rendering
against the Issuer of a final, non-appealable judgment, decree or order for the
payment of money in excess of One Million Dollars ($1,000,000), (to the extent
not paid when due or covered by a reputable and solvent insurance company, with
any portion of such judgment, decree or order not so paid or not so covered, as
applicable, to be included in the determination of the dollar amount specified
in this clause (12)) which judgment, decree or order results in a claim that
would entitle the claimholder to petition for the involuntary 


 


39

















 


bankruptcy of the Issuer
under the Bankruptcy Code, and the continuance of such judgment, decree or
order for a period of 60 consecutive days;


 


(13)                            all of the
following shall have occurred:  (A) a
Manager Default shall have occurred and be continuing, (B) the Requisite
Global Majority shall have delivered the Manager Termination Notice to the
Manager in accordance with the terms of the Management Agreement, (C) the
Indenture Trustee (at the direction of the Requisite Global Majority) shall
have directed the Issuer to appoint a replacement Manager, and (D) a
replacement Manager has not assumed the duties of the terminated Manager within
ninety (90) days measured from the date of such Manager Termination Notice; or


 


(14)                            the occurrence
of any event or condition specified as an Event of Default in a Supplement.


 


The occurrence of an Event of Default with respect to
one Series of Notes, except to the extent waived by the related Control
Party for such Series of Notes, shall constitute an Event of Default with
respect to all other Series of Notes then Outstanding unless the related
Supplement with respect to each such Series of Notes shall specifically
provide to the contrary.


 


Section 802.                                Acceleration of
Stated Maturity; Rescission and Annulment.  (a)  Upon the occurrence of an Event of
Default of the type described in paragraph (6) or (7) of Section 801,
the unpaid principal balance of, and accrued interest on, all Series of
Notes, together with all other amounts then due and owing to the Noteholders,
each Series Enhancer and each Hedge Counterparty, shall become immediately
due and payable without further action by any Person. Except as set forth in
the immediately preceding sentence, if an Event of Default under Section 801
occurs and is continuing, then and in every such case the Indenture Trustee
shall at the direction of the Requisite Global Majority declare the principal
of and accrued interest on all Notes of all Series then Outstanding to be
due and payable immediately, by a notice in writing to the Issuer and to the
Indenture Trustee given by the Requisite Global Majority, and upon any such
declaration such principal and accrued interest shall become immediately due
and payable.


 


(b)                                 At any time
after such a declaration of acceleration has been made and before a judgment or
decree for payment of the money due has been obtained by the Indenture Trustee
as hereinafter in this Article provided, the Requisite Global Majority, in
its sole discretion, by written notice to the Issuer and the Indenture Trustee,
may rescind and annul such declaration and its consequences if:


 


(i)                                     the Issuer has
paid or deposited with the Indenture Trustee a sum sufficient to pay:


 


(A)                              all of the installments
of interest and, if the Legal Final Maturity Date has occurred with respect to
any Series, principal of all Notes of such Series, in each case to the extent
such amounts were overdue prior to the date of such acceleration;


 


(B)                                to the extent
that payment of such interest is lawful, interest at the Default Rate on the
amounts set forth in clause (A) above;


 


(C)                                all unpaid
Indenture Trustee’s Fees and sums paid or advanced by the Indenture Trustee
hereunder or by the Manager and the reasonable and documented compensation,
out-of-pocket expenses, disbursements and advances 


 


40

















 


of the Indenture Trustee,
its agents and counsel incurred in connection with the enforcement of this
Indenture;


 


(D)                               all amounts due
to each Series Enhancer; and


 


(E)                                 all payments
due and payable under any Hedge Agreement, together with interest thereon in
accordance with the terms thereof; and


 


(ii)                                  all Events of
Default, other than the nonpayment of the principal of or interest on Notes
which have become due solely by such declaration of acceleration, have been
cured or waived as provided in Section 813 hereof.


 


No such rescission with
respect to any Event of Default shall affect any subsequent Event of Default or
impair any right consequent thereon, nor shall any such rescission affect any
Hedge Agreement which has been terminated in accordance with its terms.


 


Section 803.                                Collection of
Indebtedness.  The Issuer
covenants that, if an Event of Default occurs and is continuing and a
declaration of acceleration has been made under Section 802 and not
rescinded, the Issuer will, upon demand of the Indenture Trustee, pay to the
Indenture Trustee, for the benefit of the Noteholders of all Series then
Outstanding, all Hedge Counterparties and all Series Enhancers, an amount
equal to the whole amount then due and payable on all Series of Notes for
principal and interest, with interest upon the overdue principal and, to the
extent that payment of such interest shall be legally enforceable, upon overdue
installments of interest, at the Default Rate payable with respect to each such
Note and, in addition thereto, such further amount as shall be sufficient to
cover all other Outstanding Obligations, the costs and out-of-pocket expenses
of collection, including the reasonable and documented compensation, expenses,
disbursements and advances of the Indenture Trustee and the Requisite Global
Majority, their respective agents and counsel incurred in connection with the
enforcement of this Indenture.


 


Section 804.                                Remedies.  If an Event of Default occurs and is
continuing, the Indenture Trustee, by such officer or agent as it may appoint,
shall notify each Noteholder, each Hedge Counterparty, the Administrative
Agent, each Series Enhancer and the applicable Rating Agencies, if any, of
such Event of Default.  So long as an
Event of Default is continuing or at any time after a declaration of
acceleration has been made, the Indenture Trustee shall if instructed by the
Requisite Global Majority:


 


(i)                                     institute any
Proceedings, in its own name and as trustee of an express trust, for the
collection of all amounts then due and payable on the Notes of all Series under
this Indenture or the related Supplement with respect thereto, whether by
declaration or otherwise, enforce any judgment obtained, and collect from the
Collateral and any other assets of the Issuer any monies adjudged due;


 


(ii)                                  subject to the
quiet enjoyment rights of any lessee of a Managed Container, sell (including
any sale made in accordance with Section 816 hereof), hold or lease the
Collateral or any portion thereof or rights or interest therein, at one or more
public or private transactions conducted in any manner permitted by law;


 


(iii)                               institute any
Proceedings from time to time for the complete or partial foreclosure of the
Lien created by this Indenture with respect to the Collateral;


 


(iv)                              institute such
other appropriate Proceedings to protect and enforce any other rights, whether
for the specific enforcement of any covenant or agreement in this 


 


41

















 


Indenture or in aid of the exercise of any
power granted herein, or to enforce any other proper remedy;


 


(v)                                 exercise any
remedies of a secured party under the Uniform Commercial Code or any applicable
law and take any other appropriate action to protect and enforce the rights and
remedies of the Indenture Trustee or the Noteholders hereunder; and


 


(vi)                              appoint a
receiver or a manager over the Issuer or its assets.


 


Section 805.                                Indenture Trustee
May Enforce Claims Without Possession of Notes.


 


(a)                                  In all
Proceedings brought by the Indenture Trustee (and also any Proceedings
involving the interpretation of any provision of this Indenture to which the
Indenture Trustee shall be a party), the Indenture Trustee shall be held to
represent all of the Noteholders, and it shall not be necessary to make any
Noteholder a party to any such Proceedings.


 


(b)                                 All rights of
action and claims under this Indenture, the related Supplement or any of the
Notes may be prosecuted and enforced by the Indenture Trustee without the
possession of such Notes or the production thereof in any Proceeding relating
thereto, and any such Proceeding instituted by the Indenture Trustee shall be
brought in its own name as trustee of an express trust, and any recovery
whether by judgment, settlement or otherwise shall, after provision for the
payment of the reasonable compensation, expenses, and disbursements incurred
and advances made, by the Indenture Trustee, its agents and counsel, be for the
ratable benefit of the Noteholders of the Notes, subject to the subordination
of payments among Classes of a particular Series as set forth in the
related Supplement for such Series.


 


Section 806.                                Allocation of
Money Collected.  If the Notes
of all Series have been declared due and payable following an Event of
Default and such declaration and its consequences have not been rescinded or
annulled, any money collected by the Indenture Trustee pursuant to this Article or
otherwise and any other monies that may be held or thereafter received by the
Indenture Trustee as security for such Notes and the obligations secured hereby
shall be applied, to the extent permitted by law, in the following order, at
the date or dates fixed by the Indenture Trustee by wire transfer of
immediately available funds:


 


(1)                                  To the
Indenture Trustee, an amount equal to the sum of (A) all the Indenture
Trustee’s Fees then due and payable for all Series then Outstanding (provided, that such amounts shall not
exceed Seventy-Five Thousand Dollars ($75,000) per annum without the prior
approval of the Requisite Global Majority (not to be unreasonably withheld))
and (B) any amounts payable to the Indenture Trustee in accordance with
the provisions of Section 403(e) hereof;


 


(2)                                  To the Director
Services Provider in the amount of any unpaid fees (to the extent not
previously paid) owing pursuant to the Director Services Agreement (not to
exceed $25,000 per annum)


 


(3)                                  To the Manager,
an amount equal to the sum of: (i) the Management Fee then due and
payable, (ii) the amount of any Management Fee Arrearage, and (iii) any
Excess Deposit then due and payable, but in each case only to the extent not
previously withheld by the Manager in accordance with the terms of the
Transaction Documents;


 


(4)                                  To the Manager,
reimbursement for any Manager Advances;


 


42

















 


(5)                                  To the
Administrative Agent, the Administrative Agent Fees then due and payable;


 


(6)                                  To the Persons
entitled thereto:  (i) any auditing,
accounting and related fees then due and payable which are classified as an
Issuer Expense and (ii) any other Issuer Expenses then due and payable, so
long as the aggregate amount paid pursuant to this clause (6) in any
calendar year would not exceed Five Hundred Thousand Dollars ($500,000);


 


(7)                                  To each Series Enhancer,
pro rata based on the amount of Premiums then due and payable, the amount of
any Premium then due and payable pursuant to the terms of each applicable
Enhancement Agreement;


 


(8)                                  To each Hedge
Counterparty, the amount of any scheduled payments (but excluding termination
payments) then due and payable pursuant to the terms of any Hedge Agreement
then in effect.


 


(9)                                  To each Series Account
for each Series of Notes then Outstanding, an amount equal to the Priority
Payments for each such Series; provided,
that if sufficient funds do not exist to pay in full all such Priority
Payments, such amounts shall be allocated among all Series of Notes in the
same proportion as the ratio of (x) the Priority Payments of a particular Series of
Notes then Outstanding on such Payment Date to (y) the sum of the Priority
Payments for all Series of Notes then Outstanding on such Payment Date;


 


(10)                            To each of the
following on a pro rata basis: (i) to
each Hedge Counterparty, on a pro rata
basis, the amount of any unpaid payments then due and payable (including
termination payments but excluding (x) any payments made pursuant to
clause (8) above and (y) termination payments resulting from an “Event
of Default” or a “Termination Event” (other than “Illegality” and “Tax Event”)
(each as defined in the related Hedge Agreement) where the related Hedge
Counterparty is the “Defaulting Party” or sole “Affected Party” (each as
defined in the related Hedge Agreement)) pursuant to the terms of any Hedge
Agreement then in effect, and (ii) to each Series of Notes then
Outstanding, pro rata based on
unpaid principal amounts, until all Series of Notes have been paid in
full;


 


(11)                            To the
Noteholders and any Series Enhancer, interest payments on the Notes and
Default Fees not paid pursuant to clause (9) above and any Indemnity
Amounts or other amounts then due and payable;


 


(12)                            To the
Administrative Agent, any Administrative Agent Fees then due and payable, after
giving effect to the payment made pursuant to clause (5) above;


 


(13)                            To the
Indenture Trustee, any Indenture Trustee’s Fees then due and payable, after
giving effect to the payment made pursuant to clause (1) above;


 


(14)                            To the Director
Services Provider in the amount of any unpaid Indemnified Amounts (as defined
in the Director Services Agreement) owing pursuant to the Director Services
Agreement;


 


(15)                            To each Hedge
Counterparty, on a pro rata
basis, the amount of any unpaid payments then due and payable (including
termination payments resulting from 


 


43

















 


an “Event of Default” or a “Termination
Event” (other than “Illegality” and “Tax Event”), each as defined in the
related Hedge Agreement, where the related Hedge Counterparty is the “Defaulting
Party” or sole “Affected Party” (each as defined in the related Hedge
Agreement), but excluding any payments made pursuant to clause (8) or (10) above)
pursuant to the terms of any Hedge Agreement then in effect;


 


(16)                            To each of the
following on a pro rata basis: (i) to
the Issuer, the amount of any indemnity payments payable to the officers,
directors and/or managers of the Issuer required to be made by the Issuer, and (ii) to
the Manager, the amount of any officer and director indemnity payments required
to be made by the Manager;


 


(17)                            To the Issuer,
any remaining monies which may, any provision in the Transaction Documents to
the contrary notwithstanding, be used by the Issuer for any purpose, including,
without limitation, general corporate purposes, the distribution of dividends,
repayment of debt, paying fees and expenses or any other purpose in the sole
discretion of the Issuer.


 


Section 807.                                Limitation on
Suits.  Except to the extent provided
in Section 808 hereof, no Noteholder shall have the right to institute any
Proceeding, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:


 


(i)                                     such Noteholder
has previously given written notice to the Indenture Trustee of a continuing
Event of Default;


 


(ii)                                  the Requisite
Global Majority shall have made written request to the Indenture Trustee to
institute Proceedings in respect of such Event of Default in its own name as
Indenture Trustee hereunder;


 


(iii)                               such Noteholder
or Noteholders have offered to the Indenture Trustee reasonable security or
indemnity satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such request;


 


(iv)                              the Indenture
Trustee has, for thirty (30) days after its receipt by a Responsible Officer of
such notice, request and offer of security or indemnity, failed to institute
any such Proceeding; and


 


(v)                                 no direction
inconsistent with such written request has been given to the Indenture Trustee
during such thirty (30) day period by the Requisite Global Majority;


 


it being understood and
intended that no one or more Noteholders shall have any right in any manner
whatsoever by virtue of, or by availing of, any provision of this Indenture to
affect, disturb or prejudice the rights of any other Noteholder, or to obtain
or to seek to obtain priority or preference over any other Noteholder (except
to the extent provided in the related Supplement) or to enforce any right under
this Indenture, except in the manner herein provided and for the benefit of all
Noteholders.  Notwithstanding anything to
the contrary in this Section 807, if a Series Enhancer is the Control
Party for a Series of Outstanding Notes, then the Noteholders of such Series may
not institute any Proceeding with respect to this Indenture, or for the
appointment of a receiver or trustee for the Issuer, or for any other reason
hereunder without the prior written consent of such Series Enhancer.


 


44














 


Section 808.                                Unconditional
Right of Noteholders to Receive Principal, Interest and Commitment Fees.  Notwithstanding any other provision of this
Indenture, each Noteholder shall have the right, which is absolute and
unconditional, to receive payment of the principal of, interest on and
commitment fees in respect of such Note as such principal, interest and
commitment fees become due and payable in accordance with the provisions of
this Indenture and the related Supplement and to institute any Proceeding for
the enforcement of such payment, and such rights shall not be impaired without
the consent of such Noteholder.


 


Section 809.                                Restoration of
Rights and Remedies.  If the
Indenture Trustee, any Series Enhancer or any Noteholder has instituted
any Proceeding to enforce any right or remedy under this Indenture or the
related Supplement and such Proceeding has been discontinued or abandoned for
any reason, or has been determined adversely to the Indenture Trustee, such Series Enhancer
or to such Noteholder, then and in every such case, subject to any
determination in such Proceeding, the Issuer, the Indenture Trustee, such Series Enhancer
and the Noteholders shall be restored severally and respectively to their
former positions hereunder and thereafter all rights and remedies of the
Indenture Trustee, such Series Enhancer and the Noteholders shall continue
as though no such Proceeding had been instituted.


 


Section 810.                                Rights and
Remedies Cumulative.  No right or
remedy conferred upon or reserved to the Indenture Trustee, any Series Enhancer,
any Hedge Counterparty or to the Noteholders pursuant to this Indenture or any
Supplement is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.


 


Section 811.                                Delay or
Omission Not Waiver.  No delay or
omission of the Indenture Trustee, of any Series Enhancer, of any Hedge
Counterparty or of any Noteholder to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Indenture Trustee, any Hedge
Counterparty, any Series Enhancer or to the Noteholders may be exercised
from time to time, and as often as may be deemed expedient, by the Indenture
Trustee, by any Series Enhancer, by any Hedge Counterparty or by the
Noteholders, as the case may be.


 


Section 812.                                Control by Requisite
Global Majority.


 


(a)                                  Upon the
occurrence of an Event of Default, the Requisite Global Majority shall have the
right to direct the time, method and place of conducting any Proceeding for any
remedy available to the Indenture Trustee or exercising any trust or power
conferred on the Indenture Trustee, provided that (i) such direction shall
not be in conflict with any rule of law or with this Indenture, including,
without limitation, Section 804 hereof and (ii) the Indenture Trustee
may take any other action deemed proper by the Indenture Trustee which is not
inconsistent with such direction.


 


(b)                                 Notwithstanding
the grant of a security interest to secure the Outstanding Obligations owing to
the Indenture Trustee, for the benefit of the Noteholders, each Series Enhancer
and each Hedge Counterparty, all rights to direct actions or to exercise rights
or remedies under this Indenture or the UCC (including these set forth in Section 804
hereof) shall be vested solely in the Requisite Global Majority and, by
accepting the benefits of this Indenture, each Noteholder and Hedge
Counterparty acknowledges such statement; provided,
however, that nothing contained
in this paragraph shall constitute a modification of Section 808, Section 813(b) or
Section 816(d) hereof.


 


45

















 


Section 813.                                Waiver of Past
Defaults.  (a) 
The Requisite Global Majority may, on behalf of all Noteholders of all Series,
waive any past Event of Default and its consequences, except an Event of
Default:


 


(i)                                     in the payment
of (x) the principal balance of any Note on the Legal Final Maturity Date
of such Note, (y) interest on any Note of any Series on any Payment
Date, or (z) commitment fees in respect of any Note of any Series on
any Payment Date, all of which defaults can be waived solely by the affected
Noteholders and affected Series Enhancers; or


 


(ii)                                  in respect of a
covenant or provision hereof which cannot be modified or amended without the
consent of all of the Noteholders and Series Enhancers, as applicable,
affected thereby pursuant to Section 1002 of this Indenture.


 


(b)                                 Upon any such
waiver, such Event of Default shall cease to exist and shall be deemed to have
been cured and not to have occurred for every purpose of this Indenture; provided, however, that no such waiver
shall extend to (i) any subsequent or other Event of Default or impair any
right consequent thereon or (ii) affect any Hedge Agreement which has been
terminated in accordance with its terms.


 


Section 814.                                Undertaking for
Costs.  All parties to this Indenture
agree, and each Noteholder by acceptance of a Note shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Indenture Trustee for any action taken, suffered or omitted by it as the
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; provided, however, that the provisions of
this Section shall not apply to any suit instituted by the Indenture
Trustee, to any suit instituted by any Noteholder, or group of Noteholders,
holding in the aggregate more than ten percent (10%) of the aggregate principal
balance of the Notes of all Series then Outstanding, or to any suit
instituted by any Noteholder for the enforcement of the payment of the
principal of or interest on any Note on or after the Legal Final Maturity Date
of such Note.


 


Section 815.                                Waiver of Stay
or Extension Laws.  The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.


 


Section 816.                                Sale of
Collateral.


 


(a)                                  The power to
effect any sale (a “Sale”) of any portion of the Collateral pursuant to Section 804
hereof shall not be exhausted by any one or more Sales as to any portion of the
Collateral remaining unsold, but shall continue unimpaired until the entire
Collateral shall have been sold or all Outstanding Obligations shall have been
paid in full. The Indenture Trustee at the direction of the Requisite Global
Majority may from time to time postpone any Sale by public announcement made at
the time and place of such Sale.


 


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(b)                                 Upon any Sale,
whether made under the power of sale hereby given or under judgment, order or
decree in any Proceeding for the foreclosure or involving the enforcement of
this Indenture:  (i) the Indenture
Trustee, at the written direction of the Requisite Global Majority, may bid for
and purchase the property being sold, and upon compliance with the terms of
such Sale may hold, retain and possess and dispose of such property in
accordance with the terms of this Indenture; and (ii) the receipt of the
Indenture Trustee or of any officer thereof making such Sale shall be a
sufficient discharge to the purchaser or purchasers at such Sale for its or
their purchase money, and such purchaser or purchasers, and its or their
assigns or personal representatives, shall not, after paying such purchase
money and receiving such receipt of the Indenture Trustee or of such officer
therefor, be obliged to see to the application of such purchase money or be in
any way answerable for any loss, misappropriation or non-application thereof.


 


(c)                                  The Indenture
Trustee shall execute and deliver an appropriate instrument of conveyance
provided to it transferring its interest in any portion of the Collateral in
connection with a Sale thereof. In addition, the Indenture Trustee is hereby
irrevocably appointed the agent and attorney-in-fact of the Issuer to transfer
and convey its interest (subject to lessees’ rights of quiet enjoyment) in any
portion of the Collateral in connection with a Sale thereof, and to take all
action necessary to effect such Sale. No purchaser or transferee at such a Sale
shall be bound to ascertain the Indenture Trustee’s authority, inquire into the
satisfaction of any conditions precedent or see to the application of any
monies.


 


(d)                                 The Indenture Trustee
acknowledges that its right to sell, transfer or otherwise convey any Hedge
Agreement or any transaction outstanding thereunder, or to exercise foreclosure
rights with respect thereto shall be subject to compliance with the provisions
of the applicable Hedge Agreement.


 


Section 817.                                Action on Notes.  The Indenture Trustee’s right to seek and
recover judgment on the Notes or under this Indenture or any Supplement shall
not be affected by the seeking, obtaining or application of any other relief
under or with respect to this Indenture or any Supplement. Neither the Lien of
this Indenture nor any rights or remedies of the Indenture Trustee, any Series Enhancer,
any Hedge Counterparty or the Noteholders shall be impaired by the recovery of
any judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Collateral or upon any of
the assets of the Issuer.


 


ARTICLE IX



CONCERNING THE INDENTURE TRUSTEE


 


Section 901.                                Duties of the
Indenture Trustee.  The
Indenture Trustee, prior to the occurrence of an Event of Default or after the
cure or waiver of any Event of Default that may have occurred, undertakes to
perform such duties and only such duties as are specifically set forth in this
Indenture and any Supplement and no implied duties shall be inferred against
it. If an Event of Default has occurred and is continuing, the Indenture
Trustee, at the written direction of the Requisite Global Majority, shall
exercise such of the rights and powers vested in it by this Indenture and the
related Supplements, and use the same degree of care and skill in its exercise
as a prudent Person would exercise or use under the circumstances in the
conduct of such Person’s own affairs.


 


The Indenture Trustee, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Indenture Trustee which are specifically
required to be furnished pursuant to any provisions of this Indenture and any
applicable Supplement, shall determine whether they are substantially in the
form required by this Indenture and any applicable 


 


47

















 


Supplement; provided,
however, that the Indenture Trustee shall not be responsible for the
accuracy or content (including mathematical calculations) of any such
resolution, certificate, statement, opinion, report, document, order or other
instrument furnished pursuant to this Indenture and any applicable Supplement.


 


No provision of this Indenture or any Supplement shall
be construed to relieve the Indenture Trustee from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct; provided, however, that:


 


(i)                                     Prior to the
occurrence of an Event of Default and after the cure or waiver of any Event of
Default that may have occurred, the duties and obligations of the Indenture
Trustee shall be determined solely by the express provisions of this Indenture
and any Supplements. The Indenture Trustee shall not be liable except for the
performance of such duties and obligations as are specifically set forth in
this Indenture and any Supplements, and no implied covenants or obligations
shall be read into this Indenture against the Indenture Trustee and, in the
absence of bad faith on the part of the Indenture Trustee, the Indenture
Trustee may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon any certificates,
statements, reports, documents, orders, opinions or other instruments (whether
in their original or facsimile form) furnished to the Indenture Trustee and
conforming to the requirements of this Indenture and any Supplements (and is
entitled to rely on the accuracy of any mathematical calculation or other facts
stated therein);


 


(ii)                                  The Indenture
Trustee shall not be liable for an error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Indenture Trustee, unless it
shall be proved that the Indenture Trustee was negligent in ascertaining the
pertinent facts; and


 


(iii)                               The Indenture
Trustee shall not be personally liable with respect to any action taken,
suffered or omitted to be taken by it in good faith in accordance with the
direction of the Requisite Global Majority relating to the time, method and
place of conducting any proceeding for any remedy available to the Indenture
Trustee, or exercising any trust or power conferred upon the Indenture Trustee,
under this Indenture.


 


No provision of this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate security or indemnity
against such risk or liability is not reasonably assured to it.


 


Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Indenture Trustee shall be subject to the
provisions of this Section 901.


 


Section 902.                                Certain Matters
Affecting the Indenture Trustee.  Except as otherwise provided in Section 901
hereof:


 


(i)                                     The Indenture
Trustee may conclusively rely and shall be fully protected in acting or
refraining from acting upon any Opinion of Counsel, certificate of an officer
of the Issuer or the Manager, certificate of auditors or any other certificate,
statement, instrument, opinion, report, notice, request, consent, order,
appraisal, bond or other paper or document (whether in its original or
facsimile form) reasonably believed by it to be genuine and to have been signed
or presented by the proper party or parties;


 


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(ii)                                  The Indenture
Trustee may consult with counsel of its selection and any advice or opinion of
such counsel shall be full and complete authorization and protection in respect
of any action taken or suffered or omitted by it hereunder in good faith and in
accordance in reliance therewith;


 


(iii)                               The Indenture
Trustee shall be under no obligation to institute, conduct or defend any
litigation or proceeding hereunder or in relation hereto at the request, order
or direction of the Requisite Global Majority, pursuant to the provisions of
this Indenture, unless the Indenture Trustee shall have security or indemnity
reasonably satisfactory to it against the costs, expenses and liabilities which
may be incurred therein or thereby;


 


(iv)                              The Indenture
Trustee shall not be liable for any action taken, suffered or omitted by it in
good faith and reasonably believed by it to be authorized or within the
discretion or rights or powers conferred upon it by this Indenture;


 


(v)                                 The Indenture
Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report,
notice, request, consent, order, approval, bond or other paper or document,
unless requested in writing to do so by the Control Party for any Series; provided, however, that the Indenture
Trustee may require reasonable security or indemnity satisfactory to it against
any cost, expense or liability likely to be incurred in making such
investigation as a condition to so proceeding (the unsecured indemnity of each Series Enhancer
(so long as its claims paying ability is rated “AAA” or  “Aaa”, as applicable) upon such terms as may
be reasonably acceptable to the Indenture Trustee being deemed satisfactory for
such purpose). The reasonable expense of any such examination shall be paid, on
a pro rata basis, by the
Noteholders of the applicable Series requesting such examination or, if
paid by the Indenture Trustee, shall be reimbursed by such Noteholders upon
demand;


 


(vi)                              The Indenture
Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through its agents or attorneys and the
Indenture Trustee shall not be responsible for any misconduct or negligence on
the part of any agent or attorney appointed by it with due care hereunder;


 


(vii)                           The Indenture
Trustee shall not be charged with knowledge of any Default, Event of Default or
Early Amortization Event unless either a Responsible Officer of the Indenture
Trustee shall have actual knowledge thereof or written notice of such shall
have been actually received by a Responsible Officer of the Indenture Trustee;
and


 


(viii)                        The rights,
privileges, protections, immunities and benefits given to the Indenture
Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Indenture Trustee in each of its
capacities hereunder, and to each agent, custodian and other Person employed to
act on behalf of the Indenture Trustee hereunder.


 


The provisions of this Section 902 shall be
applicable to the Indenture Trustee in its capacity as the Note Registrar under
this Indenture.


 


Section 903.                                Indenture
Trustee Not Liable.  (a) 
The recitals contained herein (other than the representations and warranties
contained in Section 911 hereof), in any Supplement and in the Notes
(other than the certificate of authentication on the Notes) shall be taken as
the statements of the Issuer, and the Indenture Trustee assumes no responsibility
for their correctness. The Indenture Trustee 


 


49

















 


makes no representations as
to the validity or sufficiency of this Indenture, any Supplement, the Notes,
the Collateral or of any related document; provided
that this sentence shall not limit the representations and
warranties made by the Indenture Trustee in Section 911. The Indenture
Trustee shall not be accountable for the use or application by the Issuer of
the proceeds of any Series or Class of Notes, or for the use or
application of any funds paid to the Issuer or the Manager in respect of the
Collateral.


 


(b)                                 The Indenture
Trustee shall have no responsibility or liability for or with respect to the
existence or validity of any Collateral, the perfection of any security
interest (whether as of the date hereof or at any future time), the maintenance
of or the taking of any action to maintain such perfection, the validity of the
assignment of any portion of the Collateral to the Indenture Trustee or of any
intervening assignment, the compliance by the Seller or the Manager with any
covenant or the breach by the Seller or the Manager of any warranty or
representation made hereunder, in any Supplement or in any related document or
the accuracy of such warranty or representation, any investment of monies in
the Trust Account, the Restricted Cash Account or any Series Account or
any loss resulting therefrom (provided that such investments are made in
accordance with the provisions of Section 303 hereof), or the acts or
omissions of the Seller or the Manager taken in the name of the Indenture
Trustee.


 


(c)                                  Except as
expressly provided herein or in any Supplement, the Indenture Trustee shall not
have any obligation or liability under any Contract by reason of or arising out
of this Indenture or the granting of a security interest in such Contract
hereunder or the receipt by the Indenture Trustee of any payment relating to
any Contract pursuant hereto, nor shall the Indenture Trustee be required or
obligated in any manner to perform or fulfill any of the obligations of the
Issuer, the Seller or the Manager under or pursuant to any Contract, or to make
any payment, or to make any inquiry as to the nature or the sufficiency of any
payment received by it, or the sufficiency of any performance by any party,
under any Contract.


 


Section 904.                                Indenture
Trustee May Own Notes.  Subject to compliance with subsection (a)(4)(i) of
Rule 3a-7 under the Investment Company Act of 1940, the Indenture Trustee
in its individual or any other capacity may become the owner or pledgee of
Notes with the same rights it would have if it were not the Indenture Trustee.


 


Section 905.                                Indenture
Trustee’s Fees and Expenses.  The fees, expenses, disbursements and
advances of the Indenture Trustee shall be paid only by the Issuer in
accordance with Section 302 or 806 hereof. The Issuer shall indemnify the
Indenture Trustee (and any predecessor Indenture Trustee) and each of its
officers, directors and employees for, and hold them harmless against, any
loss, liability, damage claim or expense incurred without negligence or willful
misconduct on their part, arising out of or in connection with the acceptance
or administration of this trust, including the costs and expenses of defending
itself both individually and in its representative capacity against any claim
or liability in connection with the exercise or performance of any of its
powers or duties hereunder (together with the fees, expenses, disbursements and
advances of the Indenture Trustee, “Indenture Trustee Fees”); provided however, that the Indenture
Trustee’s Fees payable pursuant to clauses (c)(I)(1) and (c)(II)(1) in
Section 302 hereof shall not exceed Forty Thousand Dollars ($40,000) per
annum at any time Wells Fargo Bank, National Association is acting as Indenture
Trustee.


 


The obligations of the Issuer under this Section 905
to compensate the Indenture Trustee, and to indemnify and hold harmless, the
Indenture Trustee shall constitute Outstanding Obligations hereunder and shall
survive the resignation or removal of the Indenture Trustee and the
satisfaction and discharge of this Indenture.


 


When the Indenture Trustee incurs expenses or renders
services in connection with an Event of Default specified in Section 801(4) or
Section 801(5), the expenses and the compensation for the services are
intended to constitute expenses of administration under any bankruptcy law.


 


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Section 906.                                Eligibility
Requirements for the Indenture Trustee.  The Indenture Trustee hereunder shall at all
times be a national banking association or a corporation, organized and doing
business under the laws of the United States of America or any State, and
authorized under such laws to exercise corporate trust powers. In addition, the
Indenture Trustee or its parent corporation shall at all times (i) have a
combined capital and surplus of at least $50,000,000, (ii) be subject to
supervision or examination by Federal or state authority, (iii) have (A) in
the case of Wells Fargo Bank, National Association, a long-term unsecured debt
rating of “A-2” or better by Moody’s and “A” or better by S&P or (B) in
all other instances, a long-term unsecured senior debt rating of “A-2” or
better by Moody’s and a long-term unsecured senior debt rating of “A” or better
by S&P and short-term unsecured senior debt rating of “P-1” or better by
Moody’s and a short-term unsecured senior debt rating of “A-2” or better by
S&P; provided that with respect to a successor Indenture Trustee, clauses
(i), (ii) and (iii) shall not apply if, as of the date on which the
successor Indenture Trustee is appointed, such successor Indenture Trustee is
acceptable to the Requisite Global Majority and each Hedge Counterparty. The
Indenture Trustee shall at all times satisfy the requirements of subsection
(a)(4)(i) of Rule 3a-7 of the Investment Company Act of 1940.  If the Indenture Trustee publishes reports of
condition at least annually, pursuant to law or to the requirements of such
supervising or examining authority, then, for the purposes of this Section 906,
the combined capital and surplus of the Indenture Trustee shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Indenture Trustee shall cease
to be eligible in accordance with the provisions of this Section, the Indenture
Trustee shall resign promptly in the manner and with the effect specified in Section 907
hereof.


 


Section 907.                                Resignation and
Removal of the Indenture Trustee.  The Indenture Trustee may at any time resign
and be discharged from the trusts hereby created by giving written notice
thereof to the Issuer, the Manager, the Administrative Agent, each Series Enhancer
and the Noteholders. Upon receiving such notice of resignation, the Issuer, at
the direction and subject to the consent of the Requisite Global Majority,
shall promptly appoint a successor trustee by written instrument, in duplicate,
one copy of which instrument shall be delivered to the resigning Indenture
Trustee, each Hedge Counterparty, the Administrative Agent, each Series Enhancer,
and one copy to the successor Indenture Trustee. If no successor Indenture
Trustee shall have been so appointed and have accepted appointment within
thirty (30) days after the giving of such notice of resignation, the Requisite
Global Majority may appoint a successor Indenture Trustee or, if it does not do
so within thirty (30) days after the end of such thirty (30) day period, the
resigning Indenture Trustee may petition at the expense of the Issuer any court
of competent jurisdiction for the appointment of a successor Indenture Trustee,
which successor trustee shall meet the eligibility standards set forth in Section 906.


 


If at any time (i) the Indenture Trustee shall
cease to be eligible in accordance with the provisions of Section 906
hereof and shall fail to resign after written request therefor by the Issuer,
at the direction of the Requisite Global Majority, or (ii) if at any time
the Indenture Trustee shall become incapable of acting, or (iii) shall be
adjudged a bankrupt or insolvent, or a receiver of the Indenture Trustee, or of
its property shall be appointed, or any public officer shall take charge or
control of the Indenture Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, or (iv) the Indenture
Trustee shall have defaulted in the performance of its duties under this
Indenture which default materially and adversely affects the interest of any
Noteholder or Series Enhancer (if such Series Enhancer is then the
Control Party for a Series of Outstanding Notes) and, if curable,
continues unremedied for thirty (30) days after the date on which there has
been given to the Indenture Trustee by the Issuer, any Series Enhancer or
any Noteholder, a written notice specifying such default or breach and
requiring it to be remedied, then the Issuer, at the direction of the Requisite
Global Majority, shall remove the Indenture Trustee and appoint a successor
Indenture Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Indenture Trustee so removed and one copy
to the successor Indenture Trustee.


 


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Any resignation or removal of the Indenture Trustee
and appointment of a successor Indenture Trustee pursuant to any of the
provisions of this Section shall become effective upon acceptance of
appointment by the successor Indenture Trustee as provided in Section 908
hereof.


 


Section 908.                                Successor
Indenture Trustee.  Any
successor Indenture Trustee appointed as provided in Section 907 hereof
shall execute, acknowledge and deliver to the Issuer and to its predecessor
Indenture Trustee an instrument accepting such appointment hereunder, and
thereupon the resignation or removal of the predecessor Indenture Trustee shall
become effective and such successor Indenture Trustee, without any further act,
deed or conveyance, shall become fully vested with all the rights, powers,
duties and obligations of its predecessor hereunder, with like effect as if
originally named as the Indenture Trustee herein. The predecessor Indenture
Trustee shall upon payment of all charges due it, its agents and counsel
deliver to the successor Indenture Trustee all documents relating to the
Collateral, if any, delivered to it, together with any amount remaining in the
Trust Account, the Restricted Cash Account and any Series Accounts. In
addition, the predecessor Indenture Trustee and, upon request of the successor
Indenture Trustee, the Issuer shall execute and deliver such instruments and do
such other things as may reasonably be required for more fully and certainly
vesting and confirming in the successor Indenture Trustee all such rights,
powers, duties and obligations.


 


No successor Indenture Trustee shall accept
appointment as provided in this Section unless at the time of such
acceptance such successor Indenture Trustee shall be eligible under the
provisions of Section 906 hereof.


 


Upon acceptance of appointment by a successor
Indenture Trustee as provided in this Section, the Issuer shall mail notice of
the succession of such Indenture Trustee hereunder to all Noteholders at their
addresses as shown in the Note Register and to each Hedge Counterparty. If the
Issuer fails to mail such notice within ten (10) days after acceptance of
appointment by the successor Indenture Trustee, the successor Indenture Trustee
shall cause such notice to be mailed at the expense of the Issuer.


 


Section 909.                                Merger or
Consolidation of the Indenture Trustee.  Any Person into which the Indenture Trustee
may be merged or converted or with which it may be consolidated, or any Person
resulting from any merger, conversion or consolidation to which the Indenture
Trustee shall be a party, or any Person succeeding to all or substantially all
of the business of the Indenture Trustee, shall be the successor of the
Indenture Trustee hereunder, provided such Person shall be eligible under the
provisions of Section 906 hereof, without the execution or filing of any
paper or any further act on the part of any of the parties hereto, anything
herein to the contrary notwithstanding.


 


Section 910.                                Separate
Indenture Trustees, Co-Indenture Trustees and Custodians.  If the Indenture Trustee is not capable of
acting outside the United States or exercising trust powers within the United
States, it shall have the power from time to time to appoint (subject to
satisfaction of the Rating Agency Condition, or, if no Series of Notes
then has an outstanding rating, subject to the approval of the Administrative
Agent) one or more Persons or corporations to act either as co-trustees jointly
with the Indenture Trustee, or as separate trustees, or as custodians, for the
purpose of holding title to, foreclosing or otherwise taking action with
respect to any of the Collateral, when such separate trustee or co-trustee is
necessary or advisable under any applicable laws or for the purpose of
otherwise conforming to any legal requirement, restriction or condition in any
applicable jurisdiction. The separate trustees, co-trustees, or custodians so
appointed shall be trustees, co-trustees, or custodians for the benefit of all
Noteholders, each Hedge Counterparty and each Series Enhancer and shall
have such powers, rights and remedies as shall be specified in the instrument
of appointment; provided, however, that no such appointment shall,
or shall be deemed to, constitute the appointee an agent of the Indenture
Trustee. The Issuer shall join in any such appointment, but such joining shall
not be necessary for the effectiveness of such appointment.


 


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Every separate trustee, co-trustee and custodian
shall, to the extent permitted by law, be appointed and act subject to the following
provisions and conditions:


 


(i)                                     all powers,
duties, obligations and rights conferred upon the Indenture Trustee in respect
of the receipt, custody and payment of monies shall be exercised solely by the
Indenture Trustee;


 


(ii)                                  all other
rights, powers, duties and obligations conferred or imposed upon the Indenture
Trustee shall be conferred or imposed upon and exercised or performed by the
Indenture Trustee and such separate trustee, co-trustee, or custodian jointly,
except to the extent that under any law of any jurisdiction in which any
particular act or acts are to be performed the Indenture Trustee shall be
incompetent or unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations (including the holding of title to the
Collateral or any portion thereof in any such jurisdiction) shall be exercised
and performed by such separate trustee, co-trustee or custodian;


 


(iii)                               no trustee or
custodian hereunder shall be personally liable by reason of any act or omission
of any other trustee or custodian hereunder; and


 


(iv)                              the Issuer or
the Indenture Trustee may at any time accept the resignation of or remove any
separate trustee, co-trustee or custodian so appointed by it or them if such
resignation or removal does not violate the other terms of this Indenture.


 


Any notice, request or other writing given to the
Indenture Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee, co-trustee, or custodian
shall refer to this Indenture and the conditions of this Article. Each separate
trustee and co-trustee, upon its acceptance of the trusts conferred, shall be
vested with the estates or property specified in its instrument of appointment,
either jointly with the Indenture Trustee or separately, as may be provided
therein, subject to all the provisions of this Indenture, specifically
including every provision of this Indenture relating to the conduct of,
affecting the liability of, or affording protection to, the Indenture Trustee.
Every such instrument shall be furnished to the Indenture Trustee, each Hedge
Counterparty and each Series Enhancer.


 


Any separate trustee, co-trustees, or custodian may,
at any time, constitute the Indenture Trustee, its agent or attorney-in-fact,
with full power and authority, to the extent not prohibited by law, to do any
lawful act under or in respect of this Indenture on its behalf and in its name.
If any separate trustee, co-trustee, or custodian shall die, become incapable
of acting, resign or be removed, all of its estates, properties, rights,
remedies and trusts shall vest in and be exercised by the Indenture Trustee, to
the extent permitted by law, without the appointment of a new or successor
trustee or custodian.


 


No separate trustee, co-trustee or custodian hereunder
shall be required to meet the terms of eligibility as a successor Indenture
Trustee under Section 906 hereof and no notice to Noteholders of the
appointment thereof shall be required under Section 908 hereof.


 


The Indenture Trustee agrees to instruct the
co-trustees, if any, to the extent necessary to fulfill the Indenture Trustee’s
obligations hereunder.


 


Section 911.                                Representations
and Warranties.  The
Indenture Trustee hereby represents and warrants as of the Closing Date of each
Series that:


 


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(a)                                  Organization
and Good Standing.  The
Indenture Trustee is a national association duly organized, validly existing
and in good standing under the laws of the United States of America, and has
the power to own its assets and to transact the business in which it is
presently engaged;


 


(b)                                 Authorization.  The Indenture Trustee has the power,
authority and legal right to execute, deliver and perform this Indenture and
each Supplement and to authenticate the Notes, and the execution, delivery and
performance of this Indenture and each Supplement and the authentication of the
Notes has been duly authorized by the Indenture Trustee by all necessary
corporate action;


 


(c)                                  Binding
Obligations.  Each of
this Indenture and each Supplement, assuming due authorization, execution and
delivery by the Issuer, constitutes the legal, valid and binding obligations of
the Indenture Trustee, enforceable against the Indenture Trustee in accordance
with its terms, except that (i) such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other similar laws
(whether statutory, regulatory or decisional) now or hereafter in effect
relating to creditors’ rights generally and the rights of trust companies in
particular and (ii) the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to certain equitable defenses
and to the discretion of the court before which any proceeding therefor may be
brought, whether in a proceeding at law or in equity;


 


(d)                                 No Violation.  The performance by the Indenture Trustee of
its obligations under this Indenture and each Supplement will not conflict
with, result in any breach of any of the terms and provisions of, or constitute
(with or without notice, lapse of time or both) a default under, the charter
documents or bylaws of the Indenture Trustee;


 


(e)                                  No Proceedings.  There are no proceedings or investigations to
which the Indenture Trustee is a party pending, or, to the knowledge of the
Indenture Trustee without independent investigation, threatened, before any
court, regulatory body, administrative agency or other tribunal or Governmental
Authority (A) asserting the invalidity of this Indenture or the Notes, (B) seeking
to prevent the issuance of the Notes or the consummation of any of the
transactions contemplated by this Indenture or (C) seeking any
determination or ruling that would materially and adversely affect the
performance by the Indenture Trustee of its obligations under, or the validity
or enforceability of, this Indenture or the Notes; and


 


(f)                                    Approvals.  Neither the execution or delivery by the
Indenture Trustee of this Indenture nor the consummation of the transactions by
the Indenture Trustee contemplated hereby requires the consent or approval of,
the giving of notice to, the registration with or the taking of any other
action with respect to any Governmental Authority under any existing federal or
State law governing the banking or trust powers of the Indenture Trustee.


 


Section 912.                                Indenture
Trustee Offices.  The
Indenture Trustee shall maintain in the State of New York or Minneapolis,
Minnesota an office or offices or agency or agencies where Notes may be
surrendered for registration of transfer or exchange, which office currently is
located at Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479, and
shall promptly notify the Issuer, the Manager, each Hedge Counterparty and the
Noteholders of any change of such location.


 


Section 913.                                Notice of Event
of Default.  If a
Responsible Officer of the Indenture Trustee shall have actual knowledge that
an Event of Default or Early Amortization Event with respect to any Series shall
have occurred and be continuing, the Indenture Trustee shall promptly (but in
any event within five (5) Business Days) give written notice thereof to
each Noteholder, the Administrative Agent, any Rating Agency, each Hedge
Counterparty and the Series Enhancer of such Series. For all purposes of
this Indenture, in the absence of actual knowledge by a Responsible Officer of
the Indenture Trustee, the Indenture Trustee shall not be deemed to have actual
knowledge of any Event of Default or Early 


 


54

















 


Amortization Event unless
notified in writing thereof by the Issuer, the Seller, the Manager, any Series Enhancer,
the Administrative Agent or any Noteholder, and such notice references the applicable
Series of Notes generally, the Issuer, this Indenture or the applicable
Supplement.


 


Section 914.                                Notices.  The Indenture Trustee shall make reasonable
efforts to forward, to the Deal Agents, within five (5) Business Days of
receipt thereof, copies of all notices, reports and other written
communications that it delivers or receives, at the address for notices
provided in the Transaction Documents, pursuant to the terms of the Transaction
Documents.


 


55














 


ARTICLE X


 


SUPPLEMENTAL INDENTURES


 


Section 1001.                          Supplemental
Indentures Not Creating a New Series Without Consent of Noteholders.  (a)  Without the consent of any
Noteholder and based on an Officer’s Certificate of the Issuer to the effect
that such Supplement is for one of the purposes set forth in clauses (i) through
(vii) below, the Issuer and the Indenture Trustee, at any time and from
time to time, may, with the consent of each Series Enhancer if it is then
the Control Party, and each affected Hedge Counterparty (provided that the
consent of an Hedge Counterparty shall be required only if such proposed
amendment would, in the reasonable opinion of the Issuer, materially and
adversely affect the rights, duties or immunities of such Hedge Counterparty under
this Indenture, the related Hedge Agreement or otherwise), enter into one or
more Supplements to this Indenture for any of the following purposes:


 


(i)                                     to add to the
covenants of the Issuer in this Indenture for the benefit of the Noteholders of
all Series of Notes then Outstanding or of any Series Enhancer, or to
surrender any right or power conferred upon the Issuer in this Indenture;


 


(ii)                                  to cure any
ambiguity, to correct or supplement any provision in this Indenture that may be
inconsistent with any other provision in this Indenture, or to make any other
provisions with respect to matters or questions arising under this Indenture;


 


(iii)                               to correct or
amplify the description of any property at any time subject to the Lien of this
Indenture, or better to assure, convey and confirm unto the Indenture Trustee
any property subject or required to be subjected to the Lien of this Indenture,
or to subject additional property to the Lien of this Indenture;


 


(iv)                              to add to the
conditions, limitations and restrictions on the authorized amount, terms and
purposes of issue, authentication and delivery of the Notes, as herein set
forth, or additional conditions, limitations and restrictions thereafter to be
observed by the Issuer;


 


(v)                                 to convey,
transfer, assign, mortgage or pledge any additional property to or with the
Indenture Trustee;


 


(vi)                              to evidence the
succession of the Indenture Trustee pursuant to Article IX; or


 


(vii)                           to add any
additional Events of Default or Early Amortization Events.


 


Prior to the execution of
any Supplement issued pursuant to this Section 1001, the Issuer shall
provide not less than ten (10) Business Days prior written notice to the
Administrative Agent, each Rating Agency and each Hedge Counterparty setting
forth in general terms the substance of any such Supplement.


 


(b)                                 Promptly after
the execution by the Issuer and the Indenture Trustee of any Supplement
pursuant to this Section, the Indenture Trustee shall mail to the Noteholders
of all Series of Notes then Outstanding, each Rating Agency, the
Administrative Agent, each Hedge Counterparty and Series Enhancer related
to such Series, a copy of such Supplement. 
Any failure of the Indenture Trustee to mail such Supplement, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such Supplement.


 


56

















 


Section 1002.                          Supplemental
Indentures Not Creating a New Series with Consent of Noteholders.


 


(a)                                  If Section 1001
does not apply to a Supplement, then with the consent of the Requisite Global
Majority and each Hedge Counterparty (provided that, in the case of each Hedge
Counterparty, the consent of such Hedge Counterparty shall be required only if
such proposed amendments would, in the reasonable opinion of the Issuer,
materially and adversely affect the Hedge Counterparty’s rights, duties or
immunities under this Indenture, the related Hedge Agreement or otherwise), the
Issuer and the Indenture Trustee may enter into a Supplement hereto for the
purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of this Indenture or of modifying in any manner the
rights of the Noteholders under this Indenture; provided, however, that
no such Supplement shall, without the consent of the Noteholder of each Note
adversely affected thereby and the Series Enhancer for a Series if
such Series Enhancer is adversely affected thereby (but only if such Series Enhancer
is then the Control Party for such Series or shall have made an unreimbursed
payment on its Enhancement Agreement):


 


(i)                                     reduce the
principal amount of any Note, the rate of interest thereon, amend the relative
priority of any such payments pursuant to Sections 302 or 806 hereof (other
than to increase the priority thereof) or increase the amount of any applicable
dollar limitations on amounts having a higher payment priority to such payments
pursuant to Sections 302 or 806 hereof or otherwise change such payments, in
each case, if in a manner adverse to the Noteholder, or change the date on
which or the amount of which, or the place of payment where, or the coin or
currency in which, any Note or the interest thereon, or impair the right to
institute suit for the enforcement of any such payment on or after the Legal
Final Maturity Date thereof;


 


(ii)                                  reduce the
percentage of Outstanding Notes or Existing Commitments required for (a) the
consent of any Supplement to this Indenture, (b) the consent required for
any waiver of compliance with certain provisions of this Indenture or certain
Events of Default hereunder and their consequences as provided for in this
Indenture or (c) the consent required to waive any payment default on the
Notes;


 


(iii)                               modify any
provision of this Indenture or any Supplement which specifies that such
provision cannot be modified or waived without the consent of the Noteholder
affected thereby;


 


(iv)                              in a manner
adverse to such Noteholder, modify or alter the definition of the terms “Outstanding,”
“Requisite Global Majority”, “Asset Base”, “Existing Commitment”, “Initial
Commitment”, “Advance Rate”, “Aggregate Net Book Value” in this Indenture or
any of the terms used in or necessary to interpret such terms;


 


(v)                                 impair or
adversely affect the Collateral in any material respect as a whole, except as
otherwise permitted herein;


 


(vi)                              modify or alter
Section 702(a) of this Indenture; or


 


(vii)                           permit the
creation of any Lien ranking prior to or on a parity with the Lien of this
Indenture with respect to any part of the Collateral or terminate the Lien of this
Indenture on any property at any time subject hereto or deprive in any material
respect the Noteholder of the security afforded by the Lien of this Indenture,
except as otherwise permitted in this Indenture;


 


57

















 


provided, further, that no such Supplement shall, without the consent
of each Series Enhancer adversely affected thereby, (i) reduce the
amount payable to such Series Enhancer, (ii) amend the relative
priority of any such payment pursuant to Sections 302 or 806 hereof (other than
to increase the priority thereof) or increase the amount of any applicable
dollar limitations on amounts having a higher payment priority to such payments
pursuant to Sections 302 or 806 hereof or otherwise change such payments in a
manner adverse to such Series Enhancer, (iii) change the date on
which or the amount of which, or the place or payment where, or the coin or
currency in which, such amount is paid to such Series Enhancer, (iv) increase
or accelerate such Series Enhancer’s payment obligations under its
Enhancement Agreement or otherwise materially and adversely affect the rights,
interests or obligations of such Series Enhancer under this Indenture or
the other Transaction Documents, or (v) modify provisions of any
Transaction Document relating to requirements that the consent of such Series Enhancer
be obtained.


 


Prior to the execution of
any Supplement pursuant to this Section 1002, the Issuer shall provide not
less than  ten (10) Business Days
prior written notice to each Rating Agency, the Administrative Agent and each
Hedge Counterparty setting forth in general terms the substance of any such
Supplement.


 


(b)                                 Promptly after
the execution by the Issuer and the Indenture Trustee of any Supplement
pursuant to this Section, the Indenture Trustee shall mail to the Noteholders
of all Series of Notes then Outstanding, each Rating Agency, the
Administrative Agent, each Hedge Counterparty and Series Enhancer related
to such Series, a copy of such Supplement. 
Any failure of the Indenture Trustee to mail such Supplement, or any
defect therein, shall not, however, in any way impair or affect the validity of
any such Supplement.


 


Section 1003.                          Execution of
Supplemental Indentures.  In
executing, or accepting the additional trusts created by, a Supplement
permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Indenture Trustee shall be entitled to receive,
and shall be fully protected in relying upon, an Opinion of Counsel stating that
all conditions precedent specified in this Indenture for the execution of such
Supplement have been satisfied. The Indenture Trustee may, but shall not be
obligated to, enter into any such Supplement which affects the Indenture
Trustee’s own rights, duties or immunities under this Indenture or otherwise.


 


Section 1004.                          Effect of
Supplemental Indentures.  Upon
the execution of any Supplement under this Article, this Indenture shall be
modified in accordance therewith, and such Supplement shall form a part of this
Indenture for all purposes, and every Noteholder of Notes theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.


 


Section 1005.                          Reference in
Notes to Supplemental Indentures.  Notes authenticated and delivered after the
execution of any Supplement pursuant to this Article may, and shall if
required by the Issuer, bear a notation in form approved by the Indenture
Trustee as to any matter provided for in such Supplement. If the Issuer shall
so determine, new Notes so modified as to conform, in the opinion of the
Indenture Trustee, may be prepared and executed by the Issuer and authenticated
and delivered by the Indenture Trustee in exchange for Outstanding Notes.


 


Section 1006.                          Issuance of Series of
Notes.  (a)  The Issuer may from
time to time direct the Indenture Trustee in writing to execute and
authenticate one or more Series of Notes (each, a “Series”).


 


(b)                                 On or before
the Series Issuance Date relating to any Series, the parties hereto will
execute and deliver a Supplement which will specify the Principal Terms of such
Series. The terms of such Supplement may modify or amend the terms of this
Indenture solely as applied to such Series, and, with the consent of the
Requisite Global Majority, may amend this Indenture as applicable to such other
Series, in accordance with Section 1002 hereof. The obligation of the
Indenture Trustee to authenticate, 


 


58

















 


execute and deliver the
Notes of such Series and to execute and deliver the related Supplement is
subject to the satisfaction of the following conditions:


 


(i)                                     on or before
the Series Issuance Date, the Issuer shall have given the Indenture
Trustee, the Manager, the Administrative Agent, each Rating Agency (and, if
such Series is to be registered pursuant to the Securities Act, all Rating
Agencies that have rated any prior Series), each Hedge Counterparty and each Series Enhancer
notice of the Series and the Series Issuance Date;


 


(ii)                                  the Issuer
shall have delivered to the Indenture Trustee the related Supplement executed
by the Issuer;


 


(iii)                               the Issuer
shall have delivered to the Indenture Trustee any related Enhancement Agreement
executed by each of the parties thereto and each Series Enhancer under
such Enhancement Agreement shall have acknowledged in writing the terms of the
Administration Agreement;


 


(iv)                              the Rating
Agency Condition shall have been satisfied with respect to each Series of
Notes then Outstanding for which a Rating Agency has assigned a rating;


 


(v)                                 the Issuer
shall have delivered to the Indenture Trustee, each Rating Agency, each Hedge
Counterparty, each Series Enhancer (provided that unless such Series Enhancer
is then the Control Party for a Series, although the Issuer shall deliver a
copy of such Opinion of Counsel to such Series Enhancer, such Series Enhancer
shall not have any right to approve the contents thereof) and, if required, any
Noteholder, any Opinions of Counsel required by the related Supplement,
including without limitation with respect to enforceability and security
interest perfection issues;


 


(vi)                              no Early
Amortization Event or Event of Default has occurred and is then continuing (or
would result from the issuance of such additional Series) and that the issuance
of such additional Series would not result in an Early Amortization Event
or Event of Default and the Issuer shall have delivered to the Indenture
Trustee an Officer’s Certificate stating the same;


 


(vii)                           such other
conditions as shall be specified in the related Supplement; and


 


(viii)                        the Issuer
shall have delivered to the Indenture Trustee an Officer’s Certificate that all
of the conditions specified in clauses (i) through (vii) have been
satisfied.


 


Upon satisfaction of the
above conditions, the Indenture Trustee shall execute the Supplement and
authenticate, execute and deliver the Notes of such Series; provided, however, that, prior to the issuance of Notes of
any Series (other than the Series 2009-1 Notes), the Issuer shall
receive an Opinion of Counsel (a copy of which Opinion of Counsel shall be
delivered by the Issuer to the Indenture Trustee) to the effect that, for U.S.
federal income tax purposes, the issuance of the Notes of such Series will
not (x) adversely affect the tax characterization as debt of any
outstanding Notes of any Series for which an Opinion of Counsel was
rendered in connection with the original issuance of such Notes to the effect
that such Notes are treated as debt for federal tax purposes and (y) such
issuance will not cause the Issuer to be treated as an association (or publicly
traded partnership) taxable as a corporation; and provided
further that, notwithstanding any other provision of this Article,
clauses (i), (iii) and (iv) of this Section shall not apply to
the issuance of the initial Series of Notes or the related Supplement.


 


59

















 


(c)                                  Notwithstanding
any other provision of this Indenture, no Subject Notes may be issued hereunder
except in a transaction or transactions (i) that are not required to be
registered under the Securities Act and (ii) to the extent such issuance
is not required to be so registered by reason of Regulation S under the
Securities Act, that would not be required to be so registered if the interests
so offered or sold were offered and sold within the United States.  Any purported issuance of any Subject Notes
in violation of the immediately preceding sentence shall be void to the
greatest extent permitted under Applicable Law.


 


ARTICLE XI



NOTEHOLDERS LISTS


 


Section 1101.                          Issuer to
Furnish Indenture Trustee Names and Addresses of Noteholders.  Unless otherwise provided in the related
Supplement, the Issuer will furnish or cause to be furnished to the Indenture
Trustee and each Series Enhancer (i) not more than ten (10) days
after receipt of a request from the Indenture Trustee, a list, in such form as
the Indenture Trustee may reasonable require, of the names and addresses and
tax identification numbers of the Noteholders as of such date, and (ii) at
such other times as the Indenture Trustee may request in writing, within 30
days after the receipt by the Issuer of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished; provided, however,
that so long as the Indenture Trustee maintains the Note Register, no such
lists shall be required to include the names and addresses received by the
Indenture Trustee in such capacity; provided, further, that if the Indenture
Trustee is the Note Registrar, all references in this Section to the
Issuer shall be deemed to refer instead to the Indenture Trustee.


 


Section 1102.                          Preservation of
Information; Communications to Noteholders.  The Indenture Trustee shall preserve, in as
current a form as is reasonably practicable, the names and addresses of
Noteholders contained in the most recent list furnished to the Indenture
Trustee as provided in Section 1101 and the names and addresses of
Noteholders received by the Indenture Trustee in its capacity as Note
Registrar. The Indenture Trustee may destroy any list furnished to it as
provided in Section 1101 upon receipt of a new list so furnished.


 


ARTICLE XII



EARLY AMORTIZATION EVENTS


 


Section 1201.                          Early
Amortization Events.  As of any
date of determination, the existence of any one of the following events or
conditions shall constitute an Early Amortization Event:


 


(1)                                  The occurrence
of (i) an Event of Default, or (ii) a breach by the Seller of any of
its obligations under the Contribution and Sale Agreement or any other
Transaction Document to which it is a party, which breach materially and
adversely affects the interests of any Noteholder or Series Enhancer (if
such Series Enhancer is then the Control Party for a Series of
Outstanding Notes or shall have made an unreimbursed payment on its Enhancement
Agreement) and which continues, if curable, for sixty (60) days after the
occurrence of such breach;


 


(2)                                  a Manager
Default shall have occurred and then be continuing;


 


(3)                                  if on any
Payment Date an Asset Base Deficiency shall exist;


 


60

















 


(4)                                  as of any
Payment Date occurring after September 30, 2009, the Issuer EBIT to Issuer
Cash Interest Expense Ratio shall be less than 1.3 to 1.0;


 


(5)                                  as of any
Payment Date, the Weighted Average Age of the Eligible Containers shall be
greater than eight and one-half (8.5) years; and


 


(6)                                  the occurrence
of any other event or condition specified as an Early Amortization Event in a
Supplement for any Series.


 


If the Early Amortization
Event described in either of clauses (4) or (5) occurs prior to
the Conversion Date, such condition shall be deemed cured if it does not exist
on any subsequent Payment Date occurring prior to the Conversion Date.  Except as set forth in the immediately
preceding sentence, if an Early Amortization Event exists on any Payment Date,
then such Early Amortization Event shall, be deemed to continue until the
Business Day on which the Requisite Global Majority waives, in writing, such
Early Amortization Event. The Indenture Trustee shall promptly provide notice
of any such waiver to each Hedge Counterparty and the Rating Agencies.


 


Section 1202.                          Remedies.  If an Early Amortization Event shall have
occurred and then be continuing, the Indenture Trustee shall have in addition
to the rights provided in the Transaction Documents, all rights and remedies
provided under all applicable laws.


 


ARTICLE XIII



MISCELLANEOUS PROVISIONS


 


Section 1301.                          Compliance
Certificates and Opinions.  (a) 
Upon any application or request by the Issuer to the Indenture Trustee to take
any action under any provision of this Indenture or any Supplement, the Issuer
shall furnish to the Indenture Trustee a certificate stating that all
conditions precedent, if any, provided for in this Indenture and any relevant Supplement
relating to the proposed action have been complied with and, if required
pursuant to the terms of this Indenture, an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.


 


(b)                                 Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:


 


(i)                                     a statement
that each individual signing such certificate or opinion has read such covenant
or condition and the definitions herein relating thereto;


 


(ii)                                  a brief
statement as to the nature and scope of the examination or investigation upon
which the statements or opinions contained in such certificate or opinion are
based;


 


(iii)                               a statement
that, in the opinion of each such individual, he has made such examination or
investigation as is necessary to enable him to express an informed opinion as
to whether such covenant or condition has been complied with; and


 


(iv)                              a statement as
to whether, in the opinion of each such individual, such condition or covenant
has been complied with; provided that
in the case of an opinion 


 


61

















 


delivered by a law firm, such opinion may,
but need not, make such statements with regard to the individual signing such
opinion.


 


Section 1302.                          Form of
Documents Delivered to Indenture Trustee.  (a)  In any case where several matters
are required to be certified by, or covered by an opinion of, any specified
Person, it is not necessary that all such matters be certified by, or covered
by the opinion of, only one such Person, or that they be so certified or
covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.


 


(b)                                 Any certificate
or opinion may be based, insofar as it relates to legal matters, upon a
certificate or opinion of, or representations by, another Person, unless the
Person providing such certificate or opinion knows that the certificate or
opinion or representations with respect to the matters upon which such Person’s
certificate or opinion is based are erroneous.


 


(c)                                  Where any
Person is required to make, give or execute two or more applications, requests,
consents, certificates, statements, opinions or other instruments under this
Indenture, they may, but need not, be consolidated and form one instrument.


 


Section 1303.                          Acts of
Noteholders.  (a) 
Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture or any Supplement to be given or taken by
Noteholders may be (i) embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Noteholders in person
or by an agent duly appointed in writing, (ii) evidenced by the written
consent or direction of Noteholders of the specified percentage of the
principal amount of the Notes, or (iii) evidenced by a combination of such
instrument or instruments; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments, or
consent or direction, are delivered to the Indenture Trustee and, where it is
hereby expressly required, to the Issuer. Proof of execution of any such
instrument or of a writing appointing any such agent or of the execution of any
written consent or direction shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Indenture Trustee and the Issuer, if
made in the manner provided in this Section.


 


(b)                                 The fact and
date of the execution by any Person of any such instrument or writing may be
proved by the affidavit of a witness of such execution or by a certificate of a
notary public or other officer authorized by law to take acknowledgments of
deeds, certifying that the individual signing such instrument or writing
acknowledged to him the execution thereof. Where such execution is by a signer
acting in a capacity other than his individual capacity, such certificate or
affidavit shall also constitute sufficient proof of his authority. The fact and
date of the execution of any such instrument or writing, or the authority of
the Person executing the same, may also be proved in any other manner which the
Indenture Trustee deems sufficient.


 


(c)                                  The ownership
of Notes shall be proved by the Note Register.


 


(d)                                 Any request,
demand, authorization, direction, notice, consent, waiver or other Act of the
Noteholder shall bind every future Noteholder of the same Note and the
Noteholder of every Note issued upon the registration of transfer thereof or in
exchange therefor or in lieu thereof in respect of anything done, omitted or
suffered to be done by the Indenture Trustee or the Issuer in reliance thereon,
whether or not notation of such action is made upon such Note.


 


Section 1304.                          Inspection.  (a)  Upon reasonable request, the Issuer
agrees that it shall make available to any representative of the Indenture
Trustee, the Administrative Agent, any Hedge Counterparty or any Series Enhancer
and their duly authorized representatives, attorneys or accountants, 


 


62

















 


for inspection and copying
its books of account, records and reports relating to the Managed Containers
and copies of all Leases or other documents relating thereto at the times and
in accordance with the provisions of the Management Agreement. Each Noteholder,
the Administrative Agent, each Series Enhancer, each Hedge Counterparty
and the Indenture Trustee agrees that it and its Affiliates and their
respective shareholders, directors, agents, representatives, accountants and
attorneys shall keep confidential any matter of which any of them becomes aware
through such inspections or discussions (unless readily available from public
sources that did not receive such information from such Person or otherwise in
its possession from a source not having any confidentiality agreement with the
Issuer or the Manager with respect thereto), except as may be otherwise
required by regulation, law or court order or required by appropriate
governmental authorities or as necessary to preserve or exercise its rights or
security under or to enforce the Transaction Documents, provided that the
foregoing shall not limit the right of any Noteholder, any Series Enhancer
or any Hedge Counterparty, as the case may be, to make such information
available to its regulators, securities rating agencies, and to reinsurers and
credit and liquidity providers whom such party reasonably believes will respect
the confidential nature of such information and from whom such party has
requested confidential treatment of such information.  Any expense incident to the reasonable
exercise by the Indenture Trustee, the Administrative Agent, any Series Enhancer,
any Hedge Counterparty or any Noteholder of any right under this Section (except
for one annual inspection at the expense of the Issuer) shall be borne by the
Person exercising such right unless an Early Amortization Event, Manager
Default or Event of Default shall have occurred and then be continuing in which
case such expenses shall be borne by the Issuer.


 


(b)                                 The Issuer also
agrees to make available on a reasonable basis to the Indenture Trustee, Administrative
Agent, each Series Enhancer and each Hedge Counterparty a Managing Officer
for the purpose of answering reasonable questions respecting recent
developments affecting the Issuer.


 


Section 1305.                          Limitation of
Right.  Except as expressly set forth
in this Indenture, this Indenture shall be binding upon the Issuer, the
Noteholders and their respective successors and permitted assigns and shall not
inure to the benefit of any Person other than the parties hereto, the
Noteholders and the Manager as provided herein. Notwithstanding the previous
sentence, the parties hereto, the Seller and the Manager acknowledge that each
Hedge Counterparty and any Series Enhancer for a Series of Notes is
an express third party beneficiary hereof entitled to enforce its rights
hereunder as if actually a party hereto.


 


Section 1306.                          Severability.  If any provision of this Indenture is held to
be in conflict with any applicable statute or rule of law or is otherwise
held to be unenforceable for any reason whatsoever, such circumstances shall
not have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable
to any extent whatsoever.


 


The invalidity of any one or more phrases, sentences,
clauses or Sections of this Indenture shall not affect the remaining portions
of this Indenture, or any part thereof.


 


63














 


Section 1307.                          Notices.  (a)  All demands, notices, instructions,
directions and communications hereunder shall be in writing, personally
delivered, or by facsimile (with subsequent telephone confirmation of receipt
thereof), or sent by internationally recognized overnight courier service to:


 


	
  Manager:

  	
   

  	
  TAL International Container Corporation

  100 Manhattanville Road

  Purchase, New York 10577-2135

  Attn: Jeffrey M. Casucci, Vice President, Treasury and Credit

  Fax: 914-697-2526

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TAL International
  Group, Inc.

  100 Manhattanville Road

  Purchase, New York 10577-2135

  Attn: Marc A. Pearlin, General Counsel & Secretary

  Fax: 914-697-2526

  
	
   

  	
   

  	
   

  
	
  Issuer:

  	
   

  	
  TAL ADVANTAGE III LLC

  100 Manhattanville Road

  Purchase, New York 10577-2135

  Attn: Jeffrey M. Casucci

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TAL International
  Container Corporation

  
	
   

  	
   

  	
  100 Manhattanville Road

  Purchase, New York 10577-2135

  Attn: Jeffrey M. Casucci, Vice President, Treasury and Credit

  Fax: 914-697-2526

  
	
   

  	
   

  	
   

  
	
  Indenture Trustee:

  	
   

  	
  Wells Fargo Bank,
  National Association
 MAC N9311-161
 Sixth Street and Marquette Avenue
 Minneapolis, Minnesota 55479

  Attn: Corporate Trust Services - Asset-Backed Administration

  Fax: (612) 667-3464

  
	
   

  	
   

  	
   

  
	
  Administrative Agent:

  	
   

  	
  Wells
  Fargo Securities, LLC
 301 S. College Street
 One Wachovia Center

  Charlotte, North Carolina 28288
 Attn: Jerri Kallam
 Fax: (704) 374-3254
 Email: jerri.kallam@wellsfargo.com

  



 


64

















 


	
  Series Enhancer:

  	
   

  	
  at the address set
  forth in the related Enhancement Agreement

  
	
   

  	
   

  	
   

  
	
  Hedge Counterparty:

  	
   

  	
  To its address as set
  forth in the applicable Hedge Agreement

  



 


or at such other address
as shall be designated by such party in a written notice to the other parties.
Any notice required or permitted to be given to a Noteholder shall be given by
certified first class mail, postage prepaid (return receipt requested), or by
courier, or by facsimile, with subsequent telephone confirmation of receipt
thereof, in each case at the address of such Noteholder as shown in the Note
Register or to the telephone and fax number furnished by such Noteholder.
Notice shall be effective and deemed received (a) two (2) days after
being delivered to the courier service, if sent by courier, (b) upon
receipt of confirmation of transmission, if sent by fax, or (c) when
delivered, if delivered by hand. Any rights to notices conveyed to a Rating
Agency pursuant to the terms of this Indenture with respect to any Series or
Class shall terminate immediately if such Rating Agency no longer has a rating
outstanding with respect to such Series or Class.


 


Section 1308.                          Consent to
Jurisdiction.  ANY LEGAL
SUIT, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, OR ANY
TRANSACTION CONTEMPLATED HEREBY, MAY BE INSTITUTED IN ANY FEDERAL OR STATE
COURT IN THE COUNTY OF NEW YORK, STATE OF NEW YORK AND EACH PARTY HERETO HEREBY
WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF
VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND, SOLELY FOR THE PURPOSES OF
THIS INDENTURE, EACH PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.


 


Section 1309.                          Captions.  The captions or headings in this Indenture
are for convenience only and in no way define, limit or describe the scope or
intent of any provisions or sections of this Indenture.


 


Section 1310.                          Governing Law.  THE INDENTURE SHALL BE CONSTRUED BY AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTION 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.


 


Section 1311.                          No Petition.  The Indenture Trustee, on its own behalf,
hereby covenants and agrees, and each Noteholder by its acquisition of a Note
shall be deemed to covenant and agree, that it will not institute (or cause or
direct or solicit any Person to institute) against the Issuer any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy or similar law, at any time
other than on a date which is at least one (1) year and one (1) day
after the later of (a) the last date on which any Note of any Series was
Outstanding and (b) the date on which all amounts owing to the Series Enhancers
pursuant to the terms of the Indenture and the Enhancement Agreements have been
paid in full.


 


65

















 


Section 1312.                          WAIVER OF JURY
TRIAL.  EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, AS AGAINST THE OTHER PARTY HERETO, ANY RIGHTS IT MAY HAVE
TO A JURY TRIAL IN RESPECT OF ANY CIVIL ACTION OR PROCEEDING (WHETHER ARISING
IN CONTRACT OR TORT OR OTHERWISE), INCLUDING ANY COUNTERCLAIM, ARISING UNDER OR
RELATING TO THIS INDENTURE OR ANY OTHER TRANSACTION DOCUMENT, INCLUDING IN
RESPECT OF THE NEGOTIATION, ADMINISTRATION OR ENFORCEMENT HEREOF OR THEREOF.


 


Section 1313.                          Waiver of
Immunity.  To the
extent that any party hereto or any of its property is or becomes entitled at
any time to any immunity on the grounds of sovereignty or otherwise from any
legal actions, suits or proceedings, from set-off or counterclaim, from the
jurisdiction or judgment of any competent court, from service of process, from
execution of a judgment, from attachment prior to judgment, from attachment in
aid of execution, or from execution prior to judgment, or other legal process
in any jurisdiction, such party, for itself and its successors and assigns and
its property, does hereby irrevocably and unconditionally waive, and agrees not
to plead or claim, any such immunity with respect to its obligations,
liabilities or any other matter under or arising out of or in connection with
this Indenture, the other Transaction Documents or the subject matter hereof or
thereof, subject, in each case, to the provisions of the Transaction Documents
and mandatory requirements of Applicable Law.


 


Section 1314.                          Judgment Currency.  The parties hereto (A) acknowledge that
the matters contemplated by this Indenture are part of an international
financing transaction and (B) hereby agree that (i) specification and
payment of Dollars is of the essence, (ii) Dollars shall be the currency
of account in the case of all obligations under the Transaction Documents
unless otherwise expressly provided herein or therein, (iii) the payment
obligations of the parties under the Transaction Documents shall not be
discharged by an amount paid in a currency or in a place other than that
specified with respect to such obligations, whether pursuant to a judgment or
otherwise, except to the extent actually received by the Person entitled
thereto and converted into Dollars by such Person (it being understood and
agreed that, if any party hereto shall so receive an amount in a currency other
than Dollars, it shall (A) if it is not the Person entitled to receive
payment, promptly return the same (in the currency in which received) to the
Person from whom it was received or (B) if it is the Person entitled to
receive payment, either, in its sole discretion, (x) promptly return the
same (in the currency in which received) to the Person from whom it was
received or (y) subject to reasonable commercial practices, promptly cause
the conversion of the same into Dollars), (iv) to the extent that the
amount so paid on prompt conversion to Dollars under normal commercial
practices does not yield the requisite amount of Dollars, the obligee of such
payment shall have a separate cause of action against the party obligated to
make the relevant payment for the additional amount necessary to yield the
amount due and owing under the Transaction Documents, (v) if, for the
purpose of obtaining a judgment in any court with respect to any obligation
under any of the Transaction Documents, it shall be necessary to convert to any
other currency any amount in Dollars due thereunder and a change shall occur
between the rate of exchange applied in making such conversion and the rate of
exchange prevailing on the date of payment of such judgment, the obligor in
respect of such obligation will pay such additional amounts (if any) as may be
necessary to insure that the amount paid on the date of payment is the amount
in such other currency which, when converted into Dollars and transferred to
New York City, New York, in accordance with normal banking procedures, will
result in realization of the amount then due in Dollars and (vi) any
amount due under this paragraph shall be due as a separate debt and shall not
be affected by or merged into any judgment being obtained for any other sum due
under or in respect of the Transaction Documents.


 


Section 1315.                          [Reserved].


 


Section 1316.                          Consents and
Approvals.  If a
consent or approval from any Person (other than the Indenture Trustee, the
Administrative Agent, the Issuer and other than any Noteholder) is 


 


66





















 


required to be provided to
the Issuer under this Indenture or any Supplement, such consent or approval
shall be deemed to have been given if the Issuer does not receive a written
objection from such Person within ten (10) Business Days after a written
request by the Issuer for such consent or approval shall have been given.


 


Section 1317.                          Counterparts.  This Indenture may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which shall constitute one and the same
instrument.  Delivery of an executed
counterpart of this Indenture by facsimile or by electronic means shall be
equally effective as of the delivery of an originally executed counterpart.


 


67

















 


IN WITNESS WHEREOF, the Issuer and the Indenture
Trustee have caused this Indenture to be duly executed and delivered, all as of
the day and year first above written.


 


	
   

  	
  TAL ADVANTAGE III LLC,

  
	
   

  	
  By:

  	
  TAL International
  Container Corporation,

  its manager

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


TAL III
INDENTURE


 

















 


	
   

  	
  WELLS FARGO BANK, NATIONAL
  ASSOCIATION, 

  
	
   

  	
  not individually but
  solely as Indenture Trustee

  
	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


TAL III
INDENTURE


 

















 


SCHEDULE I


 


Maximum Concentrations of Lessees


 


	
  Lessee

  	
   

  	
  Concentration Limit

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Maersk

  	
   

  	
  30

  	
  %

  
	
  APL

  	
   

  	
  30

  	
  %

  
	
  COSCO

  	
   

  	
  15

  	
  %

  
	
  China
  Shipping

  	
   

  	
  15

  	
  %

  
	
  CMA
  CGM

  	
   

  	
  25

  	
  %

  
	
  Evergreen

  	
   

  	
  15

  	
  %

  
	
  Hamburg
  Sud

  	
   

  	
  15

  	
  %

  
	
  Hanjin

  	
   

  	
  20

  	
  %

  
	
  Hapag-Lloyd

  	
   

  	
  20

  	
  %

  
	
  Horizon
  Lines

  	
   

  	
  15

  	
  %

  
	
  K-Line

  	
   

  	
  20

  	
  %

  
	
  Mediterranean
  Shipping

  	
   

  	
  30

  	
  %

  
	
  Mitsui
  O.S.K.

  	
   

  	
  20

  	
  %

  
	
  NYK

  	
   

  	
  30

  	
  %

  
	
  OOCL

  	
   

  	
  30

  	
  %

  
	
  Sinotrans

  	
   

  	
  15

  	
  %

  
	
  United
  Arab Shipping

  	
   

  	
  20

  	
  %

  
	
  All
  Other Top 25

  	
   

  	
  15

  	
  %

  
	
  All
  Other Non Top 25

  	
   

  	
  7

  	
  %

  
	
  CSAV/ZIM

  	
   

  	
  0

  	
  %

  



 


Sch-I














 


EXHIBIT A


 


Form of Non-Recourse Release


 


Indenture Trustee’s Certificate

pursuant to Section 404 of the Indenture


 


Wells Fargo Bank, National
Association, as indenture trustee (the “Indenture Trustee”) pursuant to
the Indenture (as amended or supplemented from time to time as permitted
thereby, the “Indenture”), dated as of October 23, 2009 between TAL
ADVANTAGE III LLC (the “Issuer”) and the Indenture Trustee does hereby
sell, transfer, assign, deliver and otherwise convey to                             
(the “Assignee”), without recourse, representation or warranty, (except
that the Indenture Trustee has not created any liens, claims or encumbrances on
any assets identified in the attached schedule and all income and proceeds thereof other than the Lien of
the Indenture) all of the Indenture Trustee’s right, title and interest in and to all of the assets
identified in the attached schedule and all income thereon and proceeds thereof
and all security and documents relating thereto.


 


IN WITNESS WHEREOF, this
document has been duly executed and delivered this        
day of                              .


 


 


	
   

  	
  Wells Fargo Bank,
  National Association, as Indenture Trustee

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


A-1

















 


EXHIBIT B


 


INVESTMENT LETTER


 


(Transfers pursuant to Rule 144A)


 


FOR VALUE RECEIVED the
undersigned registered Noteholder (the “Seller”) hereby sell(s), assign(s) and
transfer(s) unto (please print or type name and address including postal
zip code of assignee):


 


 


 


                                                                                                                                                                      
      (The “Purchaser”), Taxpayer Identification No. 
                                     ,
[$                        of]
[Series         Asset Backed Note
bearing number                              
] (the “Note”) and all rights thereunder, hereby irrevocably constituting and
appointing                       
            attorney to
transfer the Note on the books of the Issuer with full power of substitution in
the premises.


 


1.  In connection with such transfer and in
accordance with Section 205 of the Indenture (as amended or supplemented
from time to time as permitted thereby, the “Indenture”), dated as of October 23,
2009 between TAL ADVANTAGE III LLC (the “Issuer”) and Wells Fargo Bank,
National Association (the “Indenture Trustee”), the Seller hereby certifies the
following facts to the Issuer and the Indenture Trustee:  Neither the Seller nor anyone acting on its
behalf has (a) offered, transferred, pledged, sold or otherwise disposed
of the Note, any interest in the Note or any other similar security to any
Person in any manner, (b) solicited any offer to buy or accept a transfer,
pledge or other disposition of the Note, any interest in the Note or any other
similar security from, any Person in any manner, or (c) made any general
solicitation by means of general advertising or in any other manner, or taken
any other action, in each case which would constitute a distribution of the
Note under the Securities Act of 1933,
as amended (the “1933 Act”), or which would render the disposition of the Note
a violation of Section 5 of
the 1933 Act or require registration pursuant thereto.


 


Capitalized terms used
herein but not otherwise defined shall have the meaning ascribed to such terms
in the Indenture, or if not defined therein, as defined in the Series             
Supplement, dated as of                ,
as amended or modified from time to time between the Issuer and the Indenture
Trustee.


 


2.  The Purchaser warrants and represents to, and
covenants with the Issuer and the Indenture Trustee pursuant to Section 205
of the Indenture as follows:


 


a.                                       The Purchaser understands
that the Note has not been registered under the 1933 Act or the securities laws
of any State.


 


b.                                      The Purchaser is acquiring
the Note for investment for its own account only and not for any other Person.


 


c.                                       The Purchaser is a
substantial, sophisticated institutional investor having such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of investment in the Note.


 


d.                                      The Purchaser is a “qualified
institutional buyer” as that term is defined in Rule 144A under the 1933
Act (“Rule 144A”) and has completed either of the forms of 


 


B-1

















 


certification to that effect
attached hereto as Annex 1 or Annex 2. 
The Purchaser is aware that the sale to it is being made in reliance on Rule 144A.  The Purchaser is acquiring the Note for its
own account or for the account of another qualified institutional buyer,
understands that such Note may be offered, resold, pledged or transferred only (i) to
a qualified institutional, buyer, or to an offeree or purchaser that the
Purchaser reasonably believes is a qualified institutional buyer, that
purchases for its own account or for the account of another qualified
institutional buyer to whom notice is given that the resale, pledge or transfer
is being made in reliance on Rule 144A, or (ii) pursuant to another
exemption from registration under the 1933 Act.


 


e.                                       The Purchaser is not a
Competitor.


 


3.  The Purchaser of a Term Note represents and
warrants to the Indenture Trustee that the following statement is true and
correct: the Purchaser is not acquiring the Term Note with the plan assets of a
Benefit Plan or any other plan that is subject to a law that is similar to
Title I of ERISA or Section 4975 of the Code or (ii) the acquisition,
holding and disposition of the Term Note will not give rise to a non-exempt
prohibited transaction under Section 406 of ERISA, Section 4975 of
the Code or any similar applicable law. 
The Purchaser of a Warehouse Note represents and warrants to the
Indenture Trustee that the following statement is true and correct: the
Purchaser is not acquiring the Warehouse Note with the plan assets of a Benefit
Plan Investor.


 


4.  This document may be executed in one or more
counterparts and by the different parties hereto on separate counterparts, each
of which, when so executed, shall be deemed to be an original; such
counterparts, together, shall constitute one and the same document.


 


B-2

















 


IN WITNESS WHEREOF, each of
the parties have caused this document to be executed by their duly authorized
officers as of the date set forth below.


 


	
   

  	
   

  	
   

  	
   

  
	
  Seller

  	
   

  	
  Purchaser

  
	
   

  	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
  Name: 

  	
   

  	
   

  	
  Name: 

  
	
   

  	
  Title: 

  	
   

  	
   

  	
  Title: 

  
	
   

  	
  Taxpayer Identification
  No.

  	
   

  	
   

  	
  Taxpayer Identification
  No.

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Date:

  	
   

  	
   

  	
  Date:

  	
   

  
						



 


B-3

















 


ANNEX 1 TO EXHIBIT B


 


QUALIFIED INSTITUTIONAL BUYER STATUS UNDER SEC RULE
144A


 


[For Purchasers Other Than Registered Investment
Companies]


 


The undersigned hereby
certifies as follows to the parties identified in Section 2 of the
attached Investment Letter:


 


1.                                       As indicated
below, the undersigned is the President, Chief Financial Officer, Senior Vice
President or other senior executive officer of the Purchaser.


 


2.                                       The Purchaser
is a “qualified institutional buyer” as that term is defined in Rule 144A under the Securities Act of 1933
(“Rule 144A”) because (i) the Purchaser owned and/or invested on a
discretionary basis $                       (1) in
securities (except for the excluded securities
referred to in paragraph 3 below) as of the end of the Purchaser’s most recent
fiscal year (such amount being calculated in accordance with Rule 144A)
and (ii) the Purchaser satisfies the criteria in the category marked
below.


 


o                                    Corporation.  etc.  The Purchaser
is a corporation (other than a bank, savings and loan association or similar
institution), a Massachusetts or similar business trust, a partnership, or a
charitable organization described in Section 501(c)(3) of the
Internal Revenue Code.


o                                    Bank.  The Purchaser
(a) is a national bank or banking institution organized under the laws of any State, territory or the District
of Columbia, the business of which is
substantially confined to banking and is supervised by the State or territorial
banking commission or similar official or is a foreign bank or equivalent
institution, and (b) has an audited net worth of at least $25,000,000 as
demonstrated in its latest annual financial Statements, a copy of which is
attached hereto.


o                                    Savings and Loan. 
The Purchaser (a) is a savings and loan association, building and
loan association, cooperative bank, homestead association or similar
institution, which is supervised and examined by a state or federal authority
having supervision over any such institutions, or is a foreign savings and loan
association or equivalent institution and (b) has an audited net worth of
at least $25,000,000 as demonstrated in its latest annual financial Statements,
a copy of which is attached hereto.


o                                    Broker-dealer. 
The Purchaser is a dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934.


o                                    Insurance Company. 
The Purchaser is organized as an insurance company whose primary and
predominant business activity is the writing of insurance or the reinsuring of
risks underwritten by insurance companies, and which is subject to supervision
by the insurance, commissioner or a similar official or agency of a State,
territory or the District of Columbia.


o                                    State or Local Plan. 
The Purchaser is a plan established and maintained by a State, its
political subdivisions, or any agency or instrumentality of the State or its
political subdivisions, for the benefit of its employees.


o                                    ERISA Plan.  The Purchaser
is an employee benefit plan within the meaning of Title I of the Employee
Retirement Income Security Act of 1974.


o                                    Investment Advisor. 
The Purchaser is an investment advisor registered under the Investment
Advisers Act of 1940.


 






(1)                                  Buyer must own
and/or invest on a discretionary basis at least $100,000,000 in securities
unless Buyer is a dealer registered pursuant to Section 15 of the
Securities Exchange Act of 1934, and, in that case, Buyer must own and/or
invest on a discretionary basis at least $10,000,000 in securities.


 


B-4

















 


3.                                       The term “securities”
as used herein does not include (i) securities of issuers that are
affiliated with the Purchaser, (ii) securities that are part of an unsold
allotment to or subscription by the Purchaser, if the Purchaser is a dealer, (iii) securities
issued or guaranteed by the U.S.  or any
instrumentality thereof, (iv) bank deposit notes and certificates of
deposit, (v) loan participations, (vi) repurchase agreements, (vii) securities
owned but subject to a repurchase  agreement and (viii) currency, interest rate and
commodity swaps.


 


4.                                       For purposes of
determining the aggregate amount of securities owned and/or invested on a discretionary basis by the Purchaser,
the Purchaser used the cost of such securities to the Purchaser (except as
provided in Rule 144A(a)(3)) and did not include any of the securities
referred to in the preceding paragraph. 
Further, in determining such aggregate amount, the Purchaser may have
included securities owned by subsidiaries of the Purchaser, but only if such
subsidiaries are consolidated with the Purchaser in its financial Statements
prepared in accordance with generally accepted accounting principles and if the
investments of such subsidiaries are managed under the Purchaser’s
direction.  However, such securities were
not included if the Purchaser is a majority-owned, consolidated subsidiary of
another enterprise and the Purchaser is not itself a reporting company under
the Securities Exchange Act of 1934.


 


5.                                       The Purchaser
acknowledges that it is familiar with Rule 144A and understands that the
seller to it and other parties related to the Notes are relying and will
continue to rely on the Statements made herein because one or more sales to the
Purchaser may be in reliance on Rule 144A.


 


	
  o

  Yes

  	
  o

  No

  	
   

  	
  Will
  the Purchaser be purchasing the

  Note only for Purchaser’s own account?

  



 


6.                                       If the answer
to the foregoing question is “no”, the Purchaser agrees that, in connection
with, any purchase of securities sold to the Purchaser for the account of a
third party (including any separate account) in reliance on Rule 144A, the
Purchaser will only purchase for the account of a third party that at the time
is a “qualified institutional buyer” within the meaning of Rule 144A.  In addition, the Purchaser agrees that the Purchaser
will not purchase securities for a third party unless the Purchaser has
obtained a certificate from such third party substantially identical to this
certification or taken other appropriate steps contemplated by Rule 144A
to conclude that such third party independently meets the definition of “qualified
institutional buyer” set forth in Rule 144A.


 


7.                                       The Purchaser
will notify each of the parties to which this certification is made of any
changes in the information and conclusions herein.  Until such notice is given, the Purchaser’s
purchase of the Note will constitute a reaffirmation of this certification as
of the date of such purchase.


 


	
   

  	
   

  
	
   

  	
  Print
  Name of Purchaser

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  



 


B-5

















 


ANNEX 2 TO EXHIBIT B


 


QUALIFIED
INSTITUTIONAL BUYER STATUS UNDER SEC RULE 144A


 


[For Purchasers That Are Registered Investment
Companies]


 


The undersigned hereby
certifies as follows to the parties identified in Section 2 of the attached
Investment Letter:


 


1.  As indicated below, the undersigned is the
President, Chief Financial Officer or Senior Vice President or other senior
executive officer of the Purchaser or, if the Purchaser is a “qualified
institutional buyer” as that term is defined in Rule 144A under the
Securities Act of 1933 (“Rule 144A”) because Purchaser is part of a Family
of Investment Companies (as defined below), is such an officer of the Adviser.


 


2.  The Purchaser is a “qualified institutional
buyer” as defined in SEC Rule 144A because (i) the Purchaser is an
investment company registered under the Investment Company Act of 1940, and (ii) as
marked below, the Purchaser alone, or the Purchaser’s Family of Investment
Companies, owned at least $100,000,000 in securities (other than the excluded
securities referred to below) as of the end of the Purchaser’s most recent
fiscal year.  For purposes of determining
the amount of securities owned by the Purchaser or the Purchaser’s Family of Investment Companies, the cost of such
securities was used (except as provided in Rule 144(a)(3)).


 


o                                    The Purchaser
owned $
                    
in securities (other than the excluded
securities referred to below) as of the end of the Purchaser’s most recent
fiscal year (such amount being calculated in accordance with Rule 144A).


 


o                                    The Purchaser
is part of a Family of Investment Companies which owned in the aggregate $
                      
in securities (other than the excluded securities referred to below) as of the
end of the Purchaser’s most recent fiscal year (such amount being calculated in
accordance with Rule 144A).


 


3.                                       The term “Family
of Investment Companies” as used herein means two or more registered investment
companies (or series thereof), except for a unit investment trust whose assets
consist solely of shares on one or more registered investment companies that
have the same investment adviser or investment advisers that are affiliated (by
virtue of being majority owned subsidiaries of the same parent or because one
investment adviser is a majority owned subsidiary of the other), or, in the
case of unit investment trusts, the same depositor.


 


4.                                       The term “securities”
as used herein does not include (i) securities of issuers that are
affiliated with the Purchaser or are part of the Purchaser’s Family of
Investment Companies, (ii) securities issued or guaranteed by the
U.S.  or any instrumentality thereof, (iii) bank
deposit notes and certificates of deposit, (iv) loan participations, (v) repurchase
agreements, (vi) securities owned but subject to a repurchase agreement
and (vii) currency, interest rate and commodity swaps.


 


5.                                       The Purchaser
acknowledges that it is familiar with Rule 144A
and understands that the seller to it and the other parties related to
the Note are relying and will continue to rely on the Statements made herein
because one or more sales to the Purchaser will be in reliance on Rule 144A.


 


6.                                       The undersigned
will notify the parties addressed the Purchaser Letter to which this
certification relates of any changes in the information and conclusions
herein.  Until such notice, the 


 


B-6

















 


Purchaser’s
purchase of the Note will constitute a reaffirmation of this certification by
the undersigned as of the date of such purchase.


 


 


	
   

  	
   

  
	
   

  	
  Print
  Name of Purchaser or Adviser

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  IF
  AN ADVISER:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
   

  	
  Print
  Name of Purchaser

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  



 


B-7

















 


EXHIBIT C


 


FORM OF CONTROL AGREEMENT


 


C-1














 


EXHIBIT D


 


Depreciation  Policy for Managed Containers (Not Subject to
Finance Lease)


 


Managed Containers (not
subject to a Finance Lease) shall be recorded at their Original Equipment
Cost.   All such Managed Containers
(other than refrigerated Containers) will be depreciated on a straight-line
basis  from the beginning of the month following the month in which
such Container was accepted over 12 years to a 32% residual value. 
All refrigerated Containers will be depreciated on a straight-line basis from the
beginning of  the month following the month in which such
Container was accepted  over 12 years to a 20% residual value.


 


The foregoing
notwithstanding, any portion of the Original Equipment Cost of such Managed
Container that is attributable to an improvement to such Managed Container
pursuant to clause (iii) of the definition of “Original Equipment Cost”,
shall be depreciated on a straight-line basis from the beginning
of  the month following the month in which
such  improvement was accepted   over the remaining
depreciation period of such Managed Container to the applicable residual value
mentioned above.


 


D-1

















 


EXHIBIT E


 


Form of Asset Base Certificate


 


E-1

















 


EXHIBIT F


 


Interest Rate Hedge Agreement
Policy


 


The
notional balance of any Hedge Agreements entered into with respect to Leases
other than Finance Leases shall amortize at an annual rate reasonably
consistent with the depreciation associated with the Containers then subject to
such Leases


 


The
notional balance of any Hedge Agreements entered into with respect to Finance
Leases shall amortize in a manner consistent with the remaining rental payment
on such Finance Leases.


 


F-1

















 


APPENDIX A


 


MASTER
INDEX OF DEFINED TERMS


 


App-A

















 


APPENDIX A


 


MASTER INDEX OF DEFINED
TERMS


 


Except as otherwise provided
herein, all references to any agreement defined in this Appendix A shall be
deemed to include such agreement as the same may from time to time be amended,
supplemented or otherwise modified in accordance with its terms and, where
applicable, the terms of the other Transaction Documents.  In the event of a conflict, the terms set
forth in this Appendix A shall supersede and govern.  All references to statutes (including the
UCC), rules and regulations shall be deemed to include such statutes, rules and
regulations as the same may be from time to time amended, supplemented or
otherwise modified, in each case unless otherwise specified herein. All
definitions contained or referred to herein shall be equally applicable to both
the singular and plural forms of the terms defined. All references to any Person
shall include its successors and permitted assigns. All references to “including”
are not intended to limit the generality of any description preceding such term
and for purposes hereof and of each Transaction Document the rule of ejusdem generis shall not be applicable to
limit a general statement following or referable to an enumeration of specific
matters to matters similar to those specifically mentioned.  This Appendix A shall be considered to be a
part of the Indenture, and may be amended from time to time in accordance with
the provisions thereof.


 


Accountants
Report:  This term shall have the
meaning set forth in Section 4.1.6 of the Management Agreement.


 


Account
Debtor:  Any “account debtor”, as such
term is defined in the UCC.


 


Accounts:  Any “account,” as such term is defined in the
UCC.


 


Actual Net Operating
Income:  This term shall have the
meaning set forth in Section 5.1.1 of the Management Agreement.


 


Adjusted Net Book Value:  With respect to any Managed Containers being
sold, an amount equal to (x) the sum of the respective Net Book Values of
such Managed Containers at the time of sale, minus (y) any
insurance proceeds, amounts paid by lessees or other Collections received by
the Issuer in respect of any damage to such Managed Container which was not
repaired prior to sale or in respect of any failure of the lessee to make
repairs which were not made prior to sale.


 


Administration
Agreement:  The
Administration Agreement, dated as of October 23, 2009, among the Issuer,
TAL, the Administrative Agent and the Indenture Trustee, as such agreement
shall be modified or supplemented from time to time in accordance with its
terms.


 


Administrative
Agent:  Wells Fargo Securities, LLC, a
Delaware limited liability company, and its permitted successors and assigns.


 


Administrative Agent Fee:  This term shall have the meaning given
thereto in the Administration Agreement.


 


F-B

















 


Advance Rate:  Seventy-five percent (75%).


 


Affiliate:  With respect to any Person, any other Person
directly or indirectly controlling, controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
control, when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms controlling and controlled have meanings correlative to the
foregoing.


 


Aggregate
Net Book Value:  As of any
date of determination, the sum of the Net Book Values (such Net Book Values to
be measured as of the last day of the month immediately preceding such date of
determination) of all Eligible Containers.


 


Aggregate
Note Principal Balance:  As
of any date of determination, an amount equal to the sum of the then unpaid
principal balance of all Series of Notes then Outstanding.


 


Ancillary
Fees:  All fees paid to and received
by the Manager under Lease Agreements for drop-off, pick-up or repositioning
charges, handling fees, repair payments and repair insurance fees which are
attributable to the Managed Containers.


 


Applicable
Law:  With respect to any Person or
Managed Container, all existing laws, rules, regulations (including proposed,
temporary and final income tax regulations), statutes, treaties, codes,
ordinances, permits, certificates, orders and licenses of and interpretations
by any Governmental Authority and judgments, decrees, injunctions, writs, or
orders of any court, arbitrator or other administrative, judicial, or quasi
judicial tribunal or agency of competent jurisdiction applicable to such Person
or Managed Container.


 


Asset
Base:  As of any date of
determination, an amount equal to the sum of (a) the product of (i) the
Advance Rate times (ii) the sum of (A) the Aggregate Net Book Value,
plus (B) up to the Receivables Threshold of receivables resulting from the
sale or other disposition of one or more Eligible Containers that were either
owned by the Issuer or subject to a Finance Lease for which the Issuer is the
lessor, so long as such receivables were not outstanding for more than 60
days (measured from the issue date of such receivables), plus (b) the
amount on deposit in the Restricted Cash Account, such amount to be determined
after giving effect to all withdrawals from and deposits to the Restricted Cash
Account on such date.


 


Asset Base
Certificate:  A
certificate with appropriate insertions setting forth the components of the
Asset Base, as of the last day of the month for which such certificate is
submitted, which certificate shall be substantially in the form attached as Exhibit E
to the Indenture and shall be certified by an Authorized Signatory of the
Manager.


 


Asset Base
Deficiency:  As of any
Payment Date, the condition that exists if the Aggregate Note Principal Balance
(calculated after giving effect to all payments of Minimum Principal Payment
Amounts and Scheduled Principal Payment Amounts to be paid on such Payment
Date) exceeds the Asset Base.  If such
term is used in a quantitative context, the amount of the Asset Base Deficiency
shall be equal to the amount of such excess.


 


F-C

















 


Authorized
Officer:  Any of the chief executive
officer, president, chief financial officer, treasurer, general counsel or
other senior officer of the Manager.


 


Authorized
Signatory:  Any Person
designated in a certificate of a secretary or assistant secretary of a Person
(or, in the case of a Person that is a limited liability company, any Person
designated in a certificate of a secretary or assistant secretary of the
manager of such limited liability company) or by written notice by such Person
delivered to the Indenture Trustee and the related Series Enhancer, if
any, as authorized to execute documents and instruments on behalf of such
Person.


 


Available
Distribution Amount:  This term
shall have the meaning set forth in Section 302(c) of the Indenture.


 


Bankruptcy
Code:  The Bankruptcy Reform Act of
1978, as amended.


 


Benefit Plan:  An “employee benefit plan” as defined in Section 3(3) of
ERISA that is subject to Title I of ERISA, a “plan” within the meaning of Section 4975(e)(1) of
the Code or an entity whose underlying assets include “plan assets” of any of
the foregoing by reason of an employee benefit plan’s or plan’s investment in
such entity.


 


Benefit Plan Investor:  An “employee benefit plan” as defined in Section 3(3) of
ERISA whether or not it is subject to Title I of ERISA, a “plan” within the
meaning of Section 4975(e)(1) of the Code or an entity whose
underlying assets include “plan assets” of any of the foregoing by reason of an
employee benefit plan’s or plan’s investment in such entity.


 


Book-Entry
Custodian:  The Person
appointed pursuant to the terms of the Indenture to act in accordance with that
certain agreement such Person has with the Depositary, in which the Depositary
delegates its duties to maintain the Global Notes to such Person and authorizes
such Person to perform such duties.


 


Breakage
Costs:  With respect to any Series of
Notes, this term shall have the meaning set forth in the relevant Supplement.


 


Business
Day:  Any day other than a Saturday,
a Sunday or a day on which banking institutions in New York City, London,
England, the city in which the Corporate Trust Office of the Indenture Trustee
is located, or the city in which the headquarters of the Administrative Agent
is located, are authorized or are obligated by law, executive order or
governmental decree to be closed.


 


Capital Improvements:  Any structural changes required to be made to
the Containers so as to comply with applicable governmental or industry
standards.


 


Casualty
Loss:  With respect to any Managed
Container as of any date of determination, any of the following events or
conditions:


 


(i)            total loss or destruction
thereof;


 


F-D

















 


(ii)           theft or disappearance
thereof without recovery within sixty (60) days after such theft or
disappearance becomes known to the Issuer, the Manager or any of its
Affiliates;


 


(iii)          damage rendering such
Managed Container unfit for normal use and, in the judgment of the Issuer or
the Manager, beyond repair at reasonable cost; or


 


(iv)          any condemnation, seizure,
forced sale or other taking of title to or use of such Managed Container.


 


Casualty
Proceeds:  Any payment
to, or on behalf of, the Issuer in connection with a Casualty Loss.


 


CEU: The
abbreviation used for cost equivalent unit.


 


Change
of Control:  The
occurrence of either of the following:


 


(1)           the Manager shall (A) consolidate
or merge with or into any Person, unless (i) the Manager is the surviving
entity, and (ii) at least seventy percent (70%) of the consolidated assets
of the Seller and its Consolidated Subsidiaries following such consolidation or
merger are held in connection with a Permitted Business (as defined in the
Credit Agreement), or (B) enter into or permit any purchase, sale,
assignment, transfer, conveyance or other acquisition or disposition of assets
which would result in less than seventy percent (70%) of the consolidated
assets of the Manager and its Consolidated Subsidiaries (measured after giving
effect to such transaction) to be held in connection with a Permitted Business,
or (C) cease to be a wholly-owned Subsidiary of TAL International Group;
or


 


(2)           the TAL International Group
shall (A) consolidate or merge with or into any Person, unless (i) the
TAL International Group is the surviving entity, and (ii) at least seventy
percent (70%) of the consolidated assets of the TAL International Group and its
Consolidated Subsidiaries following such consolidation or merger are held in
connection with a Permitted Business (as defined in the Credit Agreement), or (B) enter
into or permit any purchase, sale, assignment, transfer, conveyance or other
acquisition or disposition of assets which would result in less than seventy
percent (70%) of the consolidated assets of the TAL International Group and its
Consolidated Subsidiaries (measured after giving effect to such transaction) to
be held in connection with a Permitted Business.


 


Chattel
Paper:  Any lease or other chattel
paper, as such term is defined in the UCC.


 


Claim:  This term shall have the meaning set forth in
Section 14.1 of the Management Agreement.


 


Class:  All Notes having the same rights to payment
under the Indenture and any Supplement.


 


Closing
Date:  October 26,
2009.


 


Code:  The Internal Revenue Code of 1986, as
amended, or any successor statute thereto.


 


F-E

















 


Collateral:  This term shall have the meaning set forth in
the Granting Clause of the Indenture.


 


Collection
Period:  With respect to the first
Payment Date, the period commencing on the Closing Date and ending on the last
day of the next succeeding calendar month and, for any subsequent Payment Date,
the period from and including the first day of the calendar month immediately
preceding the calendar month in which such Payment Date occurs through and
including the last day of such calendar month.


 


Collections:  With respect to any Collection Period, an
amount equal to the sum of all payments of Estimated Net Operating Income
(including any adjustment payments with respect thereto) received by the Issuer
pursuant to the terms of Section 5.1.1 of the Management Agreement
actually received by, or on behalf of, the Issuer with respect to the Managed
Containers during such Collection Period, and, to the extent not included in
the foregoing, all Casualty Proceeds, Sales Proceeds and Warranty Purchase
Amounts actually received by the Issuer during such Collection Period.
Collections for any Collection Period shall include any of the foregoing
amounts which are received in any Collection Period but which are deposited in
the Trust Account (within the time required by Section 302 of the
Indenture) during the immediately succeeding Collection Period; provided, however, that with respect to any rental or other
payments received from a lessee during a particular Collection Period which
relate to a future Collection Period, such advance payments shall constitute “Collections”
in the future Collection Period to which such amounts relate and shall not
constitute “Collections” in the Collection Period in which such amounts are
received.


 


Commercial Tort Claim:  Any commercial tort claim, as such term is
defined in the UCC.


 


Commitment:  This term shall have the meaning given to
such term, if applicable, in the related Supplement.


 


Commitment
Fee:  This term shall have the
meaning given to such term, if applicable, in the related Supplement.


 


Competitor:  Any Person engaged and
competing with any of the Issuer or the Manager in the container or chassis
leasing business; provided, however,
that in no event shall any insurance company, bank, bank holding company,
savings institution or trust company, fraternal benefit society, pension,
retirement or profit sharing trust or fund, or any collateralized bond
obligation fund or similar fund (or any trustee of any such fund) or any holder
of any obligations of any such fund (solely as a result of being such a holder)
be deemed to be a Competitor unless such Person or any of its Affiliates are
directly and actively engaged in the operation of a container or chassis
leasing business.


 


Concentration Account:  The bank account to which lessees are instructed
to make payments in respect of Managed Containers.  As of the Closing Date, the Concentration
Account is account number 3553-7713 at Citibank, N.A.


 


Concentration Finance Lease:  Any Lease for a container that was purchased
directly from the manufacturer and whose initial Lease Agreement provides the
lessee the right or option to purchase the Container at the expiration of the
Lease and whose initial Lease Agreement 


 


F-F

















 


satisfies the criteria for classification as a
capital lease pursuant to GAAP, including Statement of Financial Account
Standards No. 13, as amended.


 


Concentration
Limits:  The following limitations on
the types of Containers eligible to be an Eligible Container (which limitations
shall be applied on each Transfer Date and shall be calculated so as to give
effect to the transfer under consideration), as modified from time to time with
the consent of the Requisite Global Majority:


 


(a)           Maximum
Concentration of Dry Freight Special Containers.  The sum of the Net Book Values of all
Eligible Containers that are Specialized Containers (other than refrigerated
Containers) shall not exceed twenty-five percent (25%) of the Aggregate Net
Book Value;


 


(b)           Maximum Concentration of Concentration Finance
Leases.


 


(i)            The sum of the Net Book
Values of all Eligible Containers that are subject to a Concentration Finance
Lease shall not exceed twenty percent (20%) of the Aggregate Net Book Value;


 


(ii)           The sum of the Net Book
Values of all Eligible Containers then on Lease to any single lessee (other
than MSC) that are subject to a Concentration Finance Lease shall not exceed
five percent (5%) of the Aggregate Net Book Value; and


 


(iii)          The
sum of the Net Book Values of all Eligible Containers that are subject to a
Concentration Finance Lease for which MSC is the lessee shall not exceed
fifteen percent (15%) of the Aggregate Net Book Value.


 


(c)           Maximum
Concentration of Non-Monthly Rental Payments.  The sum of the Net Book Values of all Eligible
Containers subject to Lease Agreements for which rentals are payable less
frequently than monthly shall not exceed five percent (5%) of the Aggregate Net
Book Value;


 


(d)           Maximum
Concentration of Non-U.S. Currency Rentals.  The sum of the Net Book Values of all
Eligible Containers subject to Lease Agreements for which rentals are payable
in a currency other than Dollars and which are not the subject of a Currency
Hedge Agreement shall not exceed two percent (2%) of the Aggregate Net Book
Value;


 


(e)           Maximum
Concentration of Non-Marine Cargo Users.  The sum of the Net Book Values of all
Eligible Containers subject to Lease Agreements under which the lessee is a
Person that is not a marine cargo user shall not exceed seven percent (7%) of
the Aggregate Net Book Value;


 


(f)            Maximum
Concentration of any Three Lessees.  The sum of the Net Book Values of all
Eligible Containers then on lease to any three lessees shall not exceed sixty
percent (60%) of the then Aggregate Net Book Value; provided, however, that if two
or more lessees shall engage in any transaction (whether through merger,
consolidation, stock sale, asset sale or otherwise) pursuant to which a lessee
shall become the owner of, or interest holder in, any other lessee’s leasehold
interests in one or more Containers and the effect of such transaction is to 


 


F-G

















 


cause
a breach of the foregoing threshold, then the foregoing threshold shall on the
effective date of such transaction be increased to an amount equal to the
quotient, expressed as a percentage, (x) the numerator of which shall
equal the sum of (A) the sum of the Net Book Values of all Managed
Containers on lease to such transacting lessees immediately prior to such
transaction, and (B) the sum of the Net Book Values of all Managed
Containers then on lease to the two other lessees having the most Managed
Containers then on lease with the Issuer (measured by Net Book Value) and (y) the
denominator of which shall equal the then Aggregate Net Book Value); and
provided further that, if the foregoing limitation has been increased above
sixty percent (60%) by operation of the above proviso, then any additional
Managed Containers subsequently leased to any of such three lessees shall not
be considered Eligible Containers until such time as the sum of the Net Book
Values of all Managed Containers then on lease to such three lessees does not
exceed an amount equal to sixty percent (60%) of the then Aggregate Net Book
Value;


 


(g)           Maximum
Concentration for any Single Lessee.  The sum of the Net Book Values of all
Eligible Containers then on Lease to any single lessee shall not exceed an
amount equal to (A) with respect to any of the lessees set forth in
Schedule I to the Indenture, the percentage of the Aggregate Net Book Value set
opposite the name of such lessee on such schedule, and (B) with respect to
any lessee not covered by clause (A), seven percent (7%)  of the then Aggregate Net Book Value;
provided, however, that if two or more lessees shall engage in any transaction
(whether through merger, consolidation, stock sale, asset sale or otherwise)
pursuant to which a lessee shall become the owner of, or interest holder in,
any other lessee’s leasehold interests in one or more Eligible Containers, the foregoing
threshold set forth in clauses (A) and (B) shall on the effective
date of such transaction be increased with respect to such acquiring or, in the
case of a merger, surviving lessee to equal the greater of (i) the sum of
the applicable percentage limitations for the transacting lessees as set forth
in clauses (A) and (B) above, and (ii) a quotient, expressed as
a percentage, (x) the numerator of which shall equal the sum of the Net
Book Values of all Managed Containers on Lease to such transacting lessees
immediately prior to such transaction and (y) the denominator of which
shall equal the then Aggregate Net Book Value).


 


Notwithstanding the foregoing, the foregoing
Concentration Limits shall not be applicable until the earlier to occur of (x) September 30,
2010 and (y) the first date following the date of the initial Series 2009-1
Advance on which the Issuer shall pledge additional Collateral pursuant to Section 606(a)(ii) of
the Indenture.


 


Consolidated Cash Interest
Expense. For any period, the difference of (i) the aggregate Consolidated
Interest Expense for such period, minus (ii) to the extent included in
such aggregate Consolidated Interest Expense, and to the extent incurred by TAL
International Group or any of its Consolidated Subsidiaries, (a) amortization
or write off of debt or equity issuance costs and deferred financing costs, (b) interest
expense to the extent not paid in cash attributable to dividends in respect of
all Preferred Equity of TAL International Group and its Consolidated Subsidiaries
that is not Disqualified Stock pursuant to Statement of Financial Accounting
Standards No. 150, “Accounting for Certain Financial Instruments with
Characteristics of Both Liabilities and Equity”, and


 


F-H






 


 


 


 










 


(c) any non-cash
interest expense related to (1) any interest expense that has not been
paid in cash, (2) accrued interest on Disqualified Stock to the extent not
paid, and (3) any incremental non-cash interest expense incurred by TAL
International Group or its Subsidiaries as the result of an accounting change
in accordance with GAAP that occurs after the Effective Date, plus (iii) without
duplication, cash interest payments made in such period (exclusive of any such
cash payment funded with the proceeds of an equity offering or capital
contribution) related to Consolidated Interest Expense that were deducted from
Consolidated Cash Interest Expense in a prior period.


 


Consolidated EBIT. For any
period, means the sum of Consolidated Net Income, plus the following, without
duplication, to the extent deducted in calculating such Consolidated Net
Income:


 


(1) all
income tax expense of TAL International Group and its Consolidated
Subsidiaries, all taxes incurred by TAL International Group and its
Consolidated Subsidiaries in respect of the repatriation of income from
jurisdictions outside the United States and all amounts paid by TAL
International Group and its Consolidated Subsidiaries pursuant to the terms of
any tax sharing or similar agreement;


 


(2) the
Consolidated Interest Expense of TAL International Group and its Consolidated
Subsidiaries;


 


(3) depreciation
and amortization charges of TAL International Group and its Consolidated
Subsidiaries relating to any increased depreciation or amortization charges resulting
from purchase accounting adjustments or inventory write-ups with respect to
acquisitions or the amortization or write-off of deferred debt or equity
issuance costs;


 


(4) all
other non-cash charges of TAL International Group and its Consolidated Subsidiaries
(other than depreciation expense) minus, with respect to any such non-cash
charge occurring on or after the Initial Closing Date that was previously added
in a prior period to calculate Consolidated EBIT and that represents an accrual
of or reserve for cash expenditures in any future period, any cash payments
made during such period;


 


(5) any
non-capitalized costs incurred in connection with financings, the Acquisition,
acquisitions of Containers or Chassis or dispositions (including financing and
refinancing fees and any premium or penalty paid in connection with redeeming
or retiring Indebtedness prior to the stated maturity thereof pursuant to the
agreements governing such Indebtedness);


 


(6) all
non-cash expenses attributable to Incentive Arrangements; and


 


(7) to
the extent that any portion of the Management Fee payable during such period
was accrued and not paid during such period, the aggregate amount of expenses
attributable to all payments or accruals of Management Fee during such period;


 


in
each case, for such period and as determined on a consolidated basis in
accordance with GAAP.


 


F-I

















 


Consolidated EBIT to
Consolidated Cash Interest Expense Ratio:  As of any date of determination, means the
ratio of (a) the aggregate amount of Consolidated EBIT for the period of
the most recent four consecutive fiscal quarters ending on or prior to the date
of such determination to (b) Consolidated Cash Interest Expense for such
four fiscal quarters.


 


Consolidated Funded Debt:  As of any date of determination with respect
to a Person, the total amount, without duplication, of: (1) the principal
amount outstanding under all Indebtedness of such Person and such Person’s
Consolidated Subsidiaries, (2) all Finance Lease obligations, as lessee,
of such Person and such Person’s Consolidated Subsidiaries, and (3) the
aggregate of the present values of future rental payments under any lease of
any container which such Person or any of such Person’s Consolidated
Subsidiaries is the lessee (i) that is treated by the lessee as an
operating lease rather than a capital lease in accordance with GAAP, and (ii) in
respect of which the lessor  retains or
obtains ownership of the property so leased for federal income tax purposes, in
the event, but only in the event, that the aggregate of such present values
shall be in excess of Twenty-Five Million Dollars ($25,000,000).


 


Consolidated Interest
Expense:  With respect
to any Person for any period, the aggregate of the interest expense of such
Person and its Consolidated Subsidiaries for such period, on a Consolidated
basis, as determined in accordance with GAAP, and including, without
duplication, (a) all amortization or accretion of original issue discount;
(b) the interest component of payments on Capitalized Leases paid, accrued
and/or scheduled to be paid or accrued by such Person and its Consolidated
Subsidiaries during such period; and (c) net cash costs under all Interest
Rate Hedging Agreements (including amortization of fees).


 


Consolidated Net Income. For any
period, the aggregate net income (or loss) of 
TAL International Group and its Consolidated Subsidiaries for such
period on a consolidated basis, determined in accordance with GAAP; provided, however, that there shall not be included in such
Consolidated Net Income:


 


(1) any gain (or loss)
realized upon the sale or other disposition of assets (other than Containers,
Chassis and Related Assets) of TAL International Group, any Consolidated
Subsidiary or any other Person (including pursuant to any sale-and-leaseback
arrangement) which is not sold or otherwise disposed of in the ordinary course
of business and any gain (or loss) realized upon the sale or other disposition
of any Capital Stock of any Person;


 


(2) extraordinary gains
or losses, as determined in accordance with GAAP;


 


(3) income or loss
attributable to discontinued operations (including, without limitation,
operations disposed of during such period whether or not such operations were
classified as discontinued);


 


(4) the cumulative
effect of a change in accounting principles, as determined in accordance with
GAAP;


 


(5) any adjustments,
restructuring costs, non-recurring expenses, non-recurring fees, non-operating
expenses, charges or other expenses (including bonus and retention payments and
non-cash compensation charges) (a) made or incurred in connection with the
Acquisition or the financing thereof or (b) incurred in connection with
acquisitions of Containers and/or Chassis;


 


F-J

















 


(6) Systems/Organizational
Establishment Expenses; and


 


(7) any net income (or
loss) of any Person (other than TAL 
Group) if such Person is not a Restricted Subsidiary of TAL
International Group; provided, that TAL International Group, or any of its
Consolidated Subsidiary’s, equity in the net income of any such Person for such
period shall be included in such Consolidated Net Income up to the aggregate
amount of cash actually distributed by such Person during such period to TAL
International Group or such Consolidated Subsidiary as a dividend or other
distribution, in each case for such period.


 


Consolidated Subsidiaries:  With respect to any Person, each Restricted
Subsidiary of such Person that is required to be consolidated with such Person
in accordance with GAAP.


 


Consolidated Tangible Net
Worth: As of any date of determination with respect to a Person, the excess
of: (a) the tangible assets of such Person and such Person’s Consolidated
Subsidiaries calculated in accordance with GAAP plus the aggregate amount of
Consolidated Funded Debt of the type specified in clause (3) of the
definition of Consolidated Funded Debt, over (b) all Indebtedness of such
Person and its Consolidated Subsidiaries; provided, however, that (i) in
no event shall there be included in the above calculation any intangible assets
such as patents, trademarks, trade names, copyrights, licenses, goodwill,
organizational costs, amounts relating to covenants not to compete, or any
impact from applications of FASB 133, and (ii) securities included as such
intangible assets shall be taken into account at their current market price or
cost, whichever is lower.


 


Container:  Any marine and maritime container (including
dry cargo containers, refrigerated containers (including the associated
refrigeration machine), generator sets, gps devices and Specialized Containers)
to which any Person either (i) has good title and that is held for lease
or sale or (ii) is lessor under any Finance Lease.


 


Container
Fleet:  At any time, the fleet of
Containers owned or managed by TAL.


 


Container
Identification Number:  The
unique alpha-numeric reference assigned to a Managed Container which is painted
on or affixed to such Managed Container.


 


Container Management
System:  The “TERMS 2000” equipment
tracking and billing system used by the Manager and any upgrade of, successor
to, or replacement for, such system.


 


Container
Related Agreement:  Any
agreement relating to the Managed Containers or agreements relating to the use
or management of such Managed Containers whether in existence on the Closing
Date or thereafter acquired, including, but not limited to, all Leases, the
Management Agreement, the Contribution and Sale Agreement and the Chattel Paper
to the extent it arises out of or in any way relates to the Managed Containers
now owned or hereafter acquired by the Issuer.


 


Container Representations
and Warranties:  With
respect to each Container, the representations and warranties of the Seller as
set forth in paragraphs (v) through (hh) inclusive of Section 3.01 of
the Contribution and Sale Agreement.


 


F-K

















 


Container
Revenues:  For any
Collection Period, all amounts paid to and received by the Manager which are
attributable to the Managed Containers, including but not limited to (i) per
diem rental charges (excluding any prepayments thereof), Ancillary Fees and all
charges paid in respect of the Managed Containers pursuant to Lease Agreements
(including, without duplication, payments on Finance Leases in respect of
Managed Containers) but excluding Excluded Amounts, (ii) amounts received
from the manufacturers or sellers of the Managed Containers for breach of sale
warranties relating thereto or in settlement of any claims, losses, disputes or
proceedings relating to the Managed Containers, (iii) amounts received
from any other Person in settlement of any claims, losses, disputes or
proceedings relating to the Managed Containers, including insurance proceeds
relating thereto, and (iv) any insurance premiums relating to the Managed
Containers which have been refunded by the insurer. Notwithstanding the
foregoing, Container Revenues shall not include Sales Proceeds or Casualty
Proceeds.


 


Container
Transfer Certificate:  A Container
Transfer Certificate, substantially in the form of Exhibit B to the
Contribution and Sale Agreement, executed and delivered by the Seller and the
Issuer in accordance with the terms of the Contribution and Sale Agreement.


 


Contingent Obligation:  As to any Person, means any obligation of
such Person as a result of such Person being a general partner of any other
Person, unless the underlying obligation is expressly made non-recourse as to
such general partner, and any obligation of such Person guaranteeing or
intended to guarantee any Indebtedness, leases, dividends or other obligations
(“primary obligations”) of any other Person (the “primary obligor”) in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (i) to purchase any
such primary obligation or any property constituting direct or indirect
security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of any such primary obligation or (y) to maintain
working capital or equity capital of the primary obligor or otherwise to
maintain the net worth or solvency of the primary obligor, (iii) to
purchase property, securities or services primarily for the purpose of assuring
the owner of any such primary obligation of the ability of the primary obligor
to make payment of such primary obligation or (iv) otherwise to assure or
hold harmless the holder of such primary obligation against loss in respect
thereof; provided, however, that the term Contingent Obligation
shall not include endorsements of instruments for deposit or collection in the
ordinary course of business.  The amount
of any Contingent Obligation shall be deemed to be an amount equal to the
lesser of (x) the stated or determinable amount of the primary obligation
in respect of which such Contingent Obligation is made or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such Person
in good faith and (y) the stated amount of such Contingent Obligation.


 


Contracts:  All contracts, undertakings, franchise
agreements or other agreements (other than rights evidenced by Chattel Paper,
Documents or Instruments) in or under which the Issuer may now or hereafter
have any right, title or interest, including, without limitation, the
Management Agreement, the Contribution and Sale Agreement, any Interest Rate
Hedge Agreements, any Currency Hedge Agreements and any related agreements,
security interests or UCC or other financing statements and, with respect to an
Account, any agreement relating to the terms of payment or the terms of
performance thereof.


 


F-L

















 


Contribution
and Sale Agreement:  The
Contribution and Sale Agreement, dated as of October 23, 2009, between the
Seller and the Issuer, as such agreement shall be amended, modified or
supplemented from time to time in accordance with its terms.


 


Control Agreement:  This term shall have the meaning set forth in
Section 303(b) of the Indenture.


 


Control
Party:  This term shall have the
meaning set forth in the Supplement for the related Series.


 


Conversion
Date:  The date of the occurrence of
a Conversion Event.


 


Conversion Events:  With respect to a Series of Warehouse
Notes, the occurrence or existence of any of the following events or
conditions: (i) the expiration of the stated period of time set forth in
the definition of Conversion Date in the related Supplement, unless such period
is extended in accordance with the terms of such Supplement, and (ii) the
occurrence of an Early Amortization Event under any Series of Notes then
Outstanding.


 


Corporate
Trust Office:  The
principal office of the Indenture Trustee at which at any particular time its
corporate trust business shall be administered, which office shall initially be
located at MAC N9311-161, Sixth Street and Marquette Avenue, Minneapolis,
Minnesota 55479.


 


Credit Agreement:  That certain Credit Agreement, dated as of August 15,
2007, as amended, restated, or otherwise modified in accordance with its terms,
among TAL International Container Corporation, as borrower, the lenders from
time to time party thereto and National City Bank, as administrative agent and
collateral agent thereunder.


 


Credit and Collection
Policy:  This term is defined in Section 8.1.11
of the Management Agreement.


 


Currency Hedge Agreement:  An agreement between the Issuer and the
Currency Hedge Counterparty named therein, including any schedules and confirmations
prepared and delivered in connection therewith, each in form and substance
acceptable to the Requisite Global Majority and for which the Rating Agency
Condition has been satisfied, with respect to one or more Lease(s) for
which the related lessee is obligated to make payments denominated in a
currency other than Dollars pursuant to which (i) the Issuer will receive
payments from, or make payments to, the Currency Hedge Counterparty in such
currency and (ii) recourse by the Currency Hedge Counterparty to the
Issuer is limited to actual rental payments received under such Lease.


 


Currency Hedge
Counterparty: Any Eligible Currency Hedge Counterparty or any
counterparty to a currency hedging instrument permitted to be entered into
pursuant to the Indenture.


 


Data
Custodian:  This term
shall have the meaning set forth in Section 3.10.3 of the Management
Agreement.


 


Deal Agent:  The deal agent or agents identified, if
applicable, in each Supplement.


 


F-M

















 


Default
Fee:  The incremental interest
specified in the related Supplement payable by the Issuer resulting from the
failure of the Issuer to pay in full any amount due under the Indenture on any Series of
Notes Outstanding when such amount becomes due.


 


Default Rate:  The rate of interest
specified in the related Supplement applicable to a Note then earning Default
Fee, but in no event to exceed two percent (2%) over the interest rate per
annum otherwise then applicable to such Note.


 


Deficiency Amount: With respect
to each Series, this term shall have the meaning set forth in the related
Supplement.


 


Definitive
Note:  A Note issued in definitive
form pursuant to the terms and conditions of Section 202 of the Indenture.


 


Deposit
Accounts:  Any deposit
accounts, as such term is defined in the UCC.


 


Depositary:  The Depository Trust Company until a
successor depositary shall have become such pursuant to the applicable
provisions of the Indenture and thereafter “Depositary” shall mean or include
each Person who is then a Depositary thereunder. For purposes of the Indenture,
unless otherwise specified pursuant to Section 202 of the Indenture, any
successor Depositary shall, at the time of its designation and at all times
while it serves as Depositary, be a clearing agency registered under the
Exchange Act.


 


Depositary
Participant:  A broker,
dealer, bank, other financial institution or other Person for whom from time to
time the Depositary effects book-entry transfers and pledges of securities
deposited with the Depositary.


 


Determination
Date:  The third (3rd) Business Day prior to any
Payment Date.


 


Direct
Operating Expenses:  All direct
expenses and costs, calculated on an accrual basis in accordance with GAAP,
incurred in connection with the ownership, use and/or operation of a Managed
Container, including but not limited to: (i) agency costs and expenses; (ii) depot
fees, handling, and storage costs and expenses; (iii) survey, maintenance
and repair expenses (including the actual or estimated cost of repairs to be
made pursuant to a damage protection plan); (iv) repositioning expense; (v) the
cost of inspecting, marking and remarking such Managed Container; (vi) third-party
fees for bankruptcy recovery; (vii) legal fees incurred in connection with
enforcing rights under the leases of such Managed Container or repossessing
such Managed Container; (viii) insurance expense; (ix) federal,
state, local and foreign taxes, levies, duties, charges, assessments, fees,
penalties, deductions or withholdings assessed, charged or imposed upon or
against such Managed Container, including but not limited to ad valorem, gross
receipts and/or other property taxes imposed against such Managed Container or
against the revenues generated by such Managed Container (but not including
income taxes imposed on the Manager or any of its Affiliates); (x) expenses,
liabilities, claims and costs (including without limitation reasonable
attorneys fees) incurred by the Issuer or the Manager (on behalf of the Issuer)
by any third party arising directly or indirectly (whether wholly or in part)
out of the state, condition, operation, use, storage, possession, repair,
maintenance or transportation of such Managed Container; (xi) expenses and
costs (including legal fees) of pursuing claims against manufacturers or
sellers of such Managed Container; and (xii) non-recoverable sales and value-


 


F-N

















 


added
taxes on such expenses and costs; provided, however, that in no event shall
either of the following be considered a Direct Operating Expense: (a) any
selling, general and administrative expenses of TAL International Group, the
Issuer or any of their Subsidiaries, or (b) the Management Fee.


 


Director Services
Agreement:  The
Director Services Agreement, dated as of October 23, 2009, among the
Manager, the Issuer and the Director Services Provider, and all amendments and
supplements thereto.


 


Director Services Provider:  Lord Securities Corporation and its permitted
successors and assigns.


 


Disposition Fees:  With respect to any Managed Container that (i) has
been sold to a third party, or (ii) is the subject of a Casualty Loss, an
amount equal to the product of (x) five percent (5%) and (ii) the
Sales Proceeds or Casualty Proceeds, as the case may be, realized thereon.


 


Documents:  Any documents, as such term is defined in the
UCC.


 


Dollars:  The lawful money of the United States of
America. This definition will be equally applicable to the sign $.


 


Early
Amortization Event:  The
occurrence of any of the events or conditions set forth in Section 1201 of
the Indenture.


 


Eligible
Account:  Either (a) a segregated
account with an Eligible Institution or (b) a segregated trust account
with the corporate trust department of a depository institution organized under
the laws of the United States or any of the states thereof, including the
District of Columbia (or any domestic branch of a foreign bank), and acting as
a trustee for funds deposited in such account, so long as the senior securities
of such depository institution shall have a credit rating from each Rating
Agency in one of its generic credit rating categories no lower than Aa2 or AA,
as the case may be, or (c) any account held with the Indenture Trustee.


 


Eligible Assignee: Any of the
following: (i) a Noteholder; (ii) an Affiliate of a Noteholder; (iii) any
insurance company or commercial banking institution, in each case, that is not
a Competitor; and (iv) any other Person (other than a natural person)
approved by the Issuer (such approval not to be unreasonably withheld or
delayed).


 


Eligible
Container:  Any Managed
Container which, individually or when considered with all Managed Containers
then owned by the Issuer that are included in the Asset Base, as the case may
be, shall comply with each of the following requirements:


 


(i)            No Liens. The Issuer
either (A) has good and marketable title to such Managed Container, free
and clear of all Liens other than (x) Permitted Encumbrances and (y) a
manufacturer’s or vendor’s lien for the unpaid purchase price of such Managed
Container so long as such unpaid purchase price is paid within two Business
Days following the later of the acquisition of such Managed Container by the
Issuer or the inclusion of such Managed Container in the Asset Base; or (B) is
the lessor of such Managed Container under a Finance Lease for which the filing
specified in Section 2.03(a)(iii) of the Contribution and Sale
Agreement has 


 


F-O

















 


been
made and the Issuer has good title to such Finance Lease free and clear of all
Liens other than Permitted Encumbrances; and


 


(ii)           Specifications. Such Managed
Container substantially conforms to the standard specifications used by the
Manager from time to time for that category of Managed Container and to any
applicable standards promulgated by the International Organization for
Standardization; and


 


(iii)          Container
Representations and Warranties. Such Managed Container
complies with the Container Representations and Warranties; and


 


(iv)          Casualty Losses. Such
Container shall not have suffered a Casualty Loss; and


 


(v)           Concentration
Limits. Such Container, when considered with all other Eligible Containers
owned by the Issuer, satisfies the Concentration Limits; and


 


(vi)          Rights of
Lessor Are Assignable.  The
rights of the lessor under a Lease Agreement to which a Managed Container is
subject (including the right to receive payments from end users) are
assignable; and


 


(vii)         Marketable
Title.  The Seller shall have had good
and marketable title to such Managed Container other than (x) Permitted
Encumbrances, (y) a manufacturer’s or vendor’s lien for the unpaid
purchase price of such Managed Container so long as such unpaid purchase price
is paid within two Business Days following the later of the acquisition of such
Managed Container by the Issuer or the inclusion of such Managed Container in
the Asset Base or (z) a Managed Container that is subject to a Finance
Lease under which the Seller is the lessor and the Issuer has good title to
such Finance Lease free and clear of all Liens other than Permitted
Encumbrances; and


 


(viii)        Transfer of
Title.  The Seller and the Issuer
shall have taken all necessary actions to transfer title to such Managed
Container (other than if such Managed Container is subject to a Finance Lease
for which the Issuer is the lessor) and all related Leases from the Seller to
the Issuer; and


 


(ix)           No Violation.  The contribution and conveyance of such
Managed Container does not violate any agreement of the Seller; and


 


(x)            General Terms.  The Lease for such Managed Container shall
contain terms that are not substantially different than the terms typically
included in a Lease for a Container in the Container Fleet, it being understood
that, as a matter of normal business practice, some lessees of Containers in
the Container Fleet may negotiate Leases that include terms that are more
favorable than terms in other leases;


 


(xi)           Adverse
Selection.  Such
Managed Container was not subject to any adverse selection procedures other than
as contemplated by the Transaction Documents by either the Seller or the
Manager, whichever may be applicable, in choosing Containers to be transferred
to the Issuer;


 


F-P

















 


(xii)          Original
Equipment Cost.  The
Original Equipment Cost of such Container shall be no greater than the cost of
such Container that is recorded on the Seller’s books at the time of sale to
the Issuer;


 


(xiii)         Lessee
Insolvency.  As of the
related Transfer Date, the Managed Container is not then under lease to a
lessee which, to the best knowledge of Manager, is the subject of an insolvency
proceeding; and


 


(xiv)        OFAC Compliance.  Such Container is then not on lease to a
Sanctioned Person, or to the actual knowledge of the Issuer or the Manager, is
not subleased to a Sanctioned Person or located, operated or used in a
Sanctioned Country unless it is used by the government of the United States or
one of its allies or pursuant to a license granted by OFAC.


 


Eligible
Currency Hedge Counterparty:  Any of the following:


 


(A) any bank which has
both (x) a long-term unsecured debt rating of at least “A-” or better from
S&P (so long as any Outstanding Notes are rated by S&P) and “A3” or
better from Moody’s (so long as any Outstanding Notes are rated by Moody’s) and
(y) a short-term unsecured debt rating of “A-1” or better from S&P (so
long as any Outstanding Notes are rated by S&P) and “P-1” or better from
Moody’s (so long as any Outstanding Notes are rated by Moody’s); or


 


(B) any bank or other
financial institution (i) which is otherwise acceptable to the Requisite
Global Majority and each Series Enhancer which is a Control Party and (ii) for
which the Rating Agency Condition (if applicable) has been satisfied.


 


Eligible Hedge Counterparty:  Any Eligible Interest Rate Hedge Counterparty
or Eligible Currency Hedge Counterparty, as applicable.


 


Eligible
Institution:  Any one or
more of the following institutions: (i) the corporate trust department of
the Indenture Trustee; provided the Indenture Trustee maintains a long-term
unsecured senior debt rating of at least “A-” or better from S&P or “A3” or
better from Moody’s, or (ii) a depositary institution organized under the
laws of the United States of America or any one of the states thereof or the
District of Columbia (or any domestic branch of a foreign bank), (a) which
has both (x) a long-term unsecured senior debt rating of not less than “AA”
by S&P and “Aa2” by Moody’s, and (y) a short-term unsecured senior
debt rating rated in the highest rating category by each Rating Agency and (b) whose
deposits are insured by the Federal Deposit Insurance Corporation.


 


Eligible Interest Rate Hedge Counterparty:  Any of the following:


 


(A) any bank which has
both (x) a long-term unsecured debt rating of at least “A-” or better from
S&P (so long as any Outstanding Notes are rated by S&P) and “A3” or
better from Moody’s (so long as any Outstanding Notes are rated by Moody’s) and
(y) a short-term unsecured debt rating of “A-1” or better from S&P (so
long as any Outstanding Notes are rated by S&P) and “P-1” or better from
Moody’s (so long as any Outstanding Notes are rated by Moody’s); or


 


F-Q

















 


(B) any bank or other
financial institution (i) which is otherwise acceptable to the Requisite
Global Majority and each Series Enhancer which is a Control Party and (ii) for
which the Rating Agency Condition (if applicable) has been satisfied.


 


Eligible
Investments:  One or more
of the following:


 


(i)            direct obligations of, and
obligations fully guaranteed as to the full and timely payment by, the United
States of America;


 


(ii)           demand deposits, time
deposits or certificates of deposit of any depository institution or trust
company incorporated under the laws of the United States of America or any
State thereof and subject to supervision and examination by Federal or State
banking or depository institution authorities; provided, however, that at the
time of the investment or contractual commitment to invest therein, the
commercial paper or other short-term unsecured debt obligations (other than
such obligations the rating of which is based on the credit of a Person other
than such depository institution or trust company) thereof shall be rated “A-1+”
by S&P and “Prime 1” by Moody’s;


 


(iii)          commercial paper that, at
the time of the investment or contractual commitment to invest therein, is
rated “A-1+” by S&P and “Prime 1” by Moody’s;


 


(iv)          bankers’ acceptances issued
by any depository institution or trust company referred to in clause (ii) above;


 


(v)           repurchase obligations with
respect to any security pursuant to a written agreement that is a direct
obligation of, or fully guaranteed as to the full and timely payment by, the
United States of America or any agency or instrumentality thereof the
obligations of which are backed by the full faith and credit of the United
States of America, in either case entered into with (x) a depository
institution or trust company (acting as principal) described in clause (ii) or
(y) a depository institution or trust company the deposits of which are
insured by the Federal Deposit Insurance Corporation and whose commercial paper
or other short-term unsecured debt obligations are rated “A-1+” by S&P and “Prime
1” by Moody’s and long-term unsecured debt obligations are rated “AAA” by
S&P and “Aaa” by Moody’s; and


 


(vi)          money market mutual funds
registered under the Investment Company Act of 1940, as amended (including
funds for which an Affiliate of the Indenture Trustee is acting as investment
advisor), having a rating, at the time of such investment, from each of the
Rating Agencies in the highest investment category granted thereby.


 


Enhancement
Agreement:  With
respect to any Series of Notes, any agreement, instrument or document
governing the terms of any Series Enhancement or pursuant to which any Series Enhancement
is issued for the benefit of such Series of Notes.


 


Entitlement
Order:  This term shall have the
meaning set forth in the UCC.


 


Equipment:  This term shall have the meaning set forth in
the UCC.


 


ERISA:  The Employee Retirement Income Security Act
of 1974, as amended.


 


F-R






 


 


 


 










 


ERISA
Affiliate:  With
respect to any Person, any other Person with respect to which it is a member of
a controlled group of corporations or a controlled group of trades or
businesses, as described in Section 414(b) or (c) of the Code.


 


Estimated Net Operating
Income:  This term shall have the
meaning set forth in Section 5.1.1 of the Management Agreement.


 


Eurodollar
Reserve Percentage:  As of any
date of determination, the reserve percentage applicable on such day under
regulations issued from time to time by the Federal Reserve Board (or any
successor) for determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve requirement)
for any Noteholder (or any of its participants) with respect to liabilities or
assets consisting of or including Eurocurrency Liabilities (as defined in
Regulation D of the Federal Reserve Board, as in effect from time to time) and
having a term equal to the Interest Accrual Period.


 


Event of
Default:  This term has the meaning set
forth in Section 801 of the Indenture.


 


Excess
Deposit:  This term
has the meaning set forth in Section 5.1.1 of the Management Agreement.


 


Exchange
Act:  The Securities Exchange Act of
1934, as amended.


 


Excluded
Amounts:  Any payments received from the
lessee under a Lease in connection with any taxes, fees or other charges
imposed by any Governmental Authority, or indemnity payments for the benefit of
the originator of such Lease in its individual capacity made pursuant to such
Lease.


 


Existing
Commitment:  With
respect to any Series, either or both of the following: (A) before the
Conversion Date for any Series of Warehouse Notes, with respect to each Series of
Notes Outstanding the aggregate Initial Commitment with respect to such Series of
Notes, consisting of one or more classes, expressed as a dollar amount, as set
forth in the related Supplement and subject to reduction from time to time in
accordance with the related Supplement, and/or (B) after the Conversion
Date for any Series of Warehouse Notes, with respect to each Series of
Notes Outstanding the then unpaid principal balance of the Notes of such
Series.  For the avoidance of doubt, the
Existing Commitment for any Series of Notes that does not provide for
additional fundings by the Noteholders after its Issuance Date shall at all
times equal its then unpaid principal balance.


 


Expected
Final Maturity Date:  If
applicable to any Series, the date on which the principal balance of the
Outstanding Notes of such Series is expected to be paid in full. The
Expected Final Maturity Date for a Series shall be set forth in the
related Supplement.


 


FASB 133:  Statement of Financial Accounting Standards No. 133
— “Accounting for Derivative Instruments and Hedging Activities” issued by the
Financial Accounting Standards Board.


 


Fair Market Value: With respect
to any asset (including a Container), shall mean the price at which a willing
buyer, not an Affiliate of the seller, and a willing seller who does not 


 


F-S

















 


have
to sell, would agree to purchase and sell such asset, which amount shall be
determined in good faith by the board of directors or other governing body or,
pursuant to a specific delegation of authority by such board of directors or
governing body, a designated senior executive officer of the Issuer, the
Manager or the Seller.


 


Federal
Reserve Bank:  One of the
twelve regional banks operated by the Federal Reserve System established by the
Federal Reserve Act of 1913 to regulate the U. S. monetary and banking system.


 


Federal
Reserve Board:  The Board
of Governors of the Federal Reserve System or any successor thereto.


 


Finance
Lease:  Any Lease for a container that
is classified as a “financing lease” pursuant to GAAP, including Statement of
Financial Accounting Standards No. 13, as amended.


 


Funding Notice:  With respect to each Series of Notes,
this term, if applicable, shall have the meaning given to such term in the Note
Purchase Agreement for such Series of Notes.


 


Financial
Assets:  This term shall have the
meaning set forth in the UCC.


 


General
Intangibles:  Any “general
intangibles”, as such term is defined in the UCC.


 


Generally
Accepted Accounting Principles or GAAP: 
Those generally accepted accounting principles and practices which are
recognized as such by the American Institute of Certified Public Accountants
acting through its Accounting Principles Board or by the Financial Accounting
Standards Board or through other appropriate boards or committees thereof consistently
applied as to the party in question.


 


Global
Notes:  Collectively, the Rule 144A
Global Notes, the Temporary Regulation S Global Notes and the Permanent
Regulation S Global Notes.


 


Governmental
Authority:  Any of the
following:  (a) any federal, state,
county, municipal or foreign government, or political subdivision thereof, (b) any
governmental or quasi-governmental agency, authority, board, bureau,
commission, department, instrumentality or public body, (c) any court or
administrative tribunal or (d) with respect to any Person, any arbitration
tribunal to whose jurisdiction that Person has consented.


 


Grant:  To
grant, bargain, sell, convey, assign, transfer, mortgage, pledge, create and
perfect a security interest in and right of set-off against, deposit, set over
and confirm.


 


Hedge Agreement:  Any Interest Rate Hedge Agreement or Currency
Hedge Agreement, as applicable.


 


Hedge Counterparty:  Any Interest Rate Hedge Counterparty or
Currency Hedge Counterparty, as applicable.


 


Hedging
Requirement:  This term
shall have the meaning set forth in Section 628(a) of the Indenture.


 


F-T

















 


Holder:  This term shall have the same meaning as
Noteholder.


 


Incentive Arrangements. With respect
to any Person, any (a) earn-out agreements, (b) stock appreciation
rights, (c) “phantom” stock
plans, (d) employment agreements, (e) non-competition agreements and (f) incentive
and bonus plans entered into by such Person for the benefit of, and in order to
retain, executives, officers or employees of Persons or businesses.


 


Increased
Costs:  Any fee, expense or increased
cost actually charged to or incurred by an Indemnified Party for which such
Indemnified Party is entitled to compensation pursuant to the provisions of the
related Supplement.


 


Indebtedness:  With respect to any Person without
duplication, means (i) all indebtedness (including principal, interest,
fees and charges) of such Person for borrowed money, (ii) all obligations
of such Person in respect of letters of credit, bankers’ acceptances, and bank
guaranties issued for the account of such Person, (iii) all indebtedness
of the types described in clause (i), (ii), (iv), (v) or (vi) of this
definition secured by any Lien on any property owned by such Person, whether or
not such indebtedness has been assumed by such Person (provided that, if
the Person has not assumed or otherwise become liable in respect of such
indebtedness, such indebtedness shall be deemed to be in an amount equal to the
lesser of (A) the outstanding amount of such Indebtedness and (B) the
fair market value of the property to which such Lien relates as determined in
good faith by such Person), (iv) the aggregate amount of all capitalized
lease obligations of such Person, (v) all Contingent Obligations of such
Person and (vi) all obligations of such Person issued or assumed as the
deferred purchase price of property or services, all conditional sale
obligations and all obligations under any title retention agreement (but
excluding trade accounts payable and other accrued liabilities arising in the
ordinary course of business that are either (x) not overdue by 90 days or
more or (y) being contested in good faith by appropriate proceedings
promptly instituted and diligently conducted).


 


Indemnified
Party:  This term shall have the
meaning set forth, if applicable, in the related Supplement.


 


Indemnity
Amounts:  Indemnity payments to the
Holders of the Notes (or their related creditor liquidity providers), or any Series Enhancer
or any Interest Rate Hedge Counterparty or any Currency Hedge Counterparty for
increased costs, funding costs, breakage costs, taxes, other taxes, expenses or
other indemnity payment, including, without limitation, the amounts payable
pursuant to the provisions of the related Supplement.


 


Indenture:  The Indenture, dated as of October 23,
2009, between the Issuer and the Indenture Trustee, as amended, modified or
supplemented from time to time in accordance with its terms.


 


Indenture
Trustee:  The Person performing the duties
of the Indenture Trustee under the Indenture, initially, Wells Fargo Bank,
National Association and any successors and assigns thereof.


 


Indenture
Trustee’s Fees:  This term
shall have the meaning set forth in Section 905 of the Indenture.


 


F-U

















 


Independent:  A natural person who at the date of his
appointment as a manager, director or officer possesses the following
qualifications: (a) has prior experience as an independent director or
manager for a corporation or a limited liability company, the corporate
instruments of which require the unanimous consent of all independent directors
thereof before such corporation or limited liability company could consent to
the institution of proceedings against it or could file a petition seeking
relief under any applicable bankruptcy or insolvency law; and (b) has at
least three years of employment experience with one or more entities that
provide, in the ordinary course of their respective businesses, advisory,
management or placement services to issuers of securitization or structured
finance instruments, agreements or securities; provided
always that such individual at the date of such individual’s appointment as
such manager, director or officer, or at any time in the preceding five years,
or during such person’s tenure shall not be: 
(i) an employee, director, shareholder, manager, partner or officer
of TAL or an affiliate thereof (other than such person’s service as an
independent director or manager of TAL or an affiliate thereof); (ii) a
customer or supplier of TAL or an affiliate thereof; (iii) a beneficial
owner at the time of such individual’s appointment as an independent manager,
or at any time thereafter while serving as an independent manager, of more than
2% of the voting securities of TAL or an affiliate thereof; (iv) affiliated
with a significant customer, supplier or creditor of TAL or an affiliate
thereof; (v) a party to any significant personal service contracts with
TAL or an affiliate thereof; or (f) a member of the immediate family of a
person described in (i) or (ii) above.


 


Independent
Accountants:  Ernst &
Young LLP or other independent certified public accountants of internationally
recognized standing selected by the Issuer and acceptable to the Administrative
Agent and the Requisite Global Majority.


 


Independent
Director:  A director
or manager of the Issuer who is Independent.


 


Initial
Commitment:  This term
shall have the meaning given to such term, if applicable, in the related Supplement.


 


Insolvency
Law:  The Bankruptcy Code or similar
applicable law in any other applicable jurisdiction.


 


Insolvency
Proceeding:  Any
Proceeding under any applicable Insolvency Law.


 


Instruments:  Any instrument, as such term is defined in
the UCC, including, without limitation, all notes, certificated securities, and
other evidences of indebtedness, other than instruments that constitute, or are
a part of a group of writings that constitute, Chattel Paper.


 


Insurance
Agreement:  This term
shall have the meaning given to such term, if applicable, in the related
Supplement.


 


Intercreditor
Agreement:  That certain
Intercreditor Agreement, dated as of April 12, 2006, as amended, modified
or supplemented from time to time in accordance with its terms, among TAL
International Container Corporation, TAL Advantage I LLC, U.S. Bank, National
Association, Fortis Capital Corp., Wells Fargo Bank, National Association, as
indenture trustee, and various other parties from time to time party thereto.


 


F-V

















 


Interest
Accrual Period:  With respect to each Payment
Date, the period commencing on and including the immediately preceding Payment
Date (or in the case of the initial Payment Date with respect to a Series, commencing
on and including the Issuance Date for such Series) and ending on and including
the day before the current Payment Date.


 


Interest
Rate Hedge Agreement:  An ISDA
interest rate swap or cap agreement, collar or other hedging instrument between
the Issuer and the Interest Rate Hedge Counterparty named therein, each in form
and substance reasonably acceptable to the Requisite Global Majority, that
complies with the guidelines set forth in Section 628 of the Indenture and
pursuant to which (i) the Issuer will receive payments from, or make
payments to, the Interest Rate Hedge Counterparty based on LIBOR and (ii) recourse
by the Interest Rate Hedge Counterparty to the Issuer is limited to
distributions in accordance with the priority of payments set forth in Section 302
and Section 806 of the Indenture, as applicable.


 


Interest
Rate Hedge Counterparty:  Any
Eligible Interest Rate Hedge Counterparty or any counterparty to a cap, collar
or other hedging instrument permitted to be entered into pursuant to the
Indenture.


 


Investment
Grade Entity:  Any bank
which has both (x) a long-term unsecured debt rating of at least “BBB-” or
better from S&P (so long as any Outstanding Notes are rated by S&P) and
“Baa3” or better from Moody’s (so long as any Outstanding Notes are rated by
Moody’s) and (y) a short-term unsecured debt rating of “A-2” or better
from S&P (so long as any Outstanding Notes are rated by S&P) and “P-2”
or better from Moody’s (so long as any Outstanding Notes are rated by Moody’s).


 


Inventory:  Any inventory, as such term is defined in the
UCC.


 


Investment:  When used in connection with any Person, any
investment by or of that Person, whether by means of purchase or other
acquisition of securities of any other Person or by means of loan, advance, capital
contribution, guaranty or other debt or equity participation or interest in any
other Person, including any partnership and joint venture interests of such
Person in any other Person. The amount of any Investment shall be the original
principal or capital amount thereof less all returns of principal or equity
thereon (and without adjustment by reason of the financial condition of such
other Person) and shall, if made by the transfer or exchange of property other
than cash, be deemed to have been made in an original principal or capital
amount equal to the fair market value of such property; provided, however, that
the term “Investment” shall not include (i) any prepaid expenses,
negotiable instruments held for collection and lease, utility and workers’ compensation,
performance and other similar deposits made in the ordinary course of business,
(ii) receivables owing to the Issuer, if created or acquired in the
ordinary course of its business and payable or dischargeable in accordance with
customary trade terms of the Issuer, or (iii) any investments (including
debt obligations) received by the Issuer in connection with the bankruptcy or
reorganization of lessees, suppliers, trade creditors, licensees, licensors and
customers and in good faith settlement of delinquent obligations of, and other
disputes with, lessees, suppliers, trade creditors, licensees, licensors and
customers arising in the ordinary course of business.


 


Investment
Letter:  A letter substantially in the
form of Exhibit B to the Indenture.


 


F-W

















 


Investment
Property:  This term
shall have the meaning set forth in the UCC.


 


ISDA:  International Swaps and Derivatives
Association, Inc., and any successor thereto.


 


Issuance Date:  With respect to any Series, the date on which
the Notes of such Series are to be originally issued in accordance with
the Indenture and the related Supplement.


 


Issuer:  TAL Advantage III LLC, a limited liability
company organized under the laws of Delaware, and its permitted successors and
assigns.


 


Issuer Cash Interest
Expense:  With respect to the Issuer for
any period, an amount equal to the difference of (1) the Issuer Interest
Expense for such period minus (2) to the extent included in clause (1), (i) amortization
or write off of debt issuance or deferred financing costs, (ii) any
non-cash interest expense related to any interest expense that has not been
paid in cash, and (iii) any incremental non-cash interest expense incurred
as the result of an accounting change that occurs after August 15, 2007,
plus (3) without duplication of amounts included in clause (1), cash
interest payments made in such period that were deducted from Issuer Cash
Interest Expense in a prior period.


 


Issuer EBIT.  For any period, means the sum of Issuer Net
Income, plus the following, without duplication, to the extent deducted in
calculating such Issuer Net Income:


 


(1) all income tax
expense in respect of any net income generated by the Issuer;


 


(2) Issuer Interest
Expense;


 


(3) depreciation and
amortization charges of the Issuer relating to any increased depreciation or
amortization charges resulting from purchase accounting adjustments or
inventory write-ups with respect to acquisitions or the amortization or
write-off of deferred debt or equity issuance costs;


 


(4) all other non-cash
charges of the Issuer (other than depreciation expense) minus, with respect to
any such non-cash charge occurring on or after July 1, 2009 that was
previously added in a prior period to calculate Issuer EBIT and that represents
an accrual of or reserve for cash expenditures in any future period, any cash
payments made during such period;


 


(5) any non-capitalized
costs incurred in connection with financings, the acquisition of Containers or
dispositions (including financing and refinancing fees and any premium or
penalty paid in connection with redeeming or retiring Indebtedness prior to the
stated maturity thereof pursuant to the agreements governing such
Indebtedness);


 


(6) all non-cash
expenses attributable to Incentive Arrangements;


 


(7) to the extent that
any portion of the Management Fee payable during such period was accrued and
not paid during such period, the aggregate amount of


 


F-X

















 


expenses attributable to all
payments or accruals of Management Fee during such period; and


 


(8) any indemnity
payments made (regardless of to whom such payments are made) pursuant to the
Indenture;


 


in
each case, for such period and as determined in accordance with GAAP.


 


Issuer EBIT to Issuer Cash
Interest Expense Ratio:  As
of the last day of the fiscal quarter preceding such date of determination
commencing with the fiscal quarter ending September 30, 2009 the ratio of (a) the
aggregate amount of Issuer EBIT for the period of the most recent four
consecutive fiscal quarters of the Issuer ending on or prior to the date of
such determination, to (b) Issuer Cash Interest Expense for such four
fiscal quarters; provided, however, that for each Determination Date occurring
prior to the Determination Date in October 2010, such ratio shall be
calculated based on the number of fiscal quarters that have elapsed since September 30,
2009.


 


Issuer
Expenses:  For any
Collection Period, direct out-of-pocket expenses that are necessary or
advisable, in the opinion of the managers of the Issuer, to maintain the
corporate existence of the Issuer, including: administration expenses;
accounting and audit expenses of the Issuer; premiums for liability, casualty,
fidelity, directors’ and officers’ and other insurance; legal fees and
expenses; other professional fees; franchise taxes and other similar taxes (but
excluding income taxes); and surveillance and other fees assessed by the Rating
Agencies.


 


Issuer Interest Expense: With respect to
the Issuer for any period, the aggregate of the interest expense of the Issuer
for such period, as determined in accordance with GAAP, and including, without
duplication, (a) all amortization or accretion of original issue discount;
(b) net cash costs under all Hedge Agreements; and (c) amortization
of fees under all Hedge Agreements.


 


Issuer Net Income:  For any period, the aggregate net income (or
loss) of the Issuer for such period, determined in accordance with GAAP; provided, however, that there shall not be included in such
Issuer Net Income:


 


(1)           any gain (or loss) realized upon the sale or other
disposition of assets (other than Containers) of the Issuer (including pursuant
to any sale-and-leaseback arrangement) which is not sold or otherwise disposed
of in the ordinary course of business;


 


(2)           extraordinary gains or losses, as determined in
accordance with GAAP;


 


(3)           income or loss attributable to discontinued
operations (including, without limitation, operations disposed of during such
period whether or not such operations were classified as discontinued);


 


(4)           the cumulative effect of a change in accounting
principles, as determined in accordance with GAAP;


 


F-Y

















 


(5)           any adjustments, restructuring costs, non-recurring
expenses, non-recurring fees, non-operating expenses, charges or other expenses
(including bonus and retention payments and non-cash compensation charges)
incurred in connection with acquisitions of Containers; and


 


(6)           Systems/Organizational Establishment Expenses;


in
each case, for such period.


 


Last
Lessee Damage Payment:  The last payments received from a lessee in
respect of damages to or repair of a Managed Container that is designated for
sale.


 


Lease or Lease Agreement:  Each and every item of Chattel Paper,
installment sales agreement, equipment lease or rental agreement (including
progress payment authorizations) to which a Container is subject from time to
time and including any Lease entered into from time to time by TAL pursuant to
which TAL leases one or more Containers from its Container Fleet. The term
Lease includes (a) all payments to be made by the lessee thereunder, (b) all
rights of the lessor thereunder, (c) any and all amendments, renewals or
extensions thereof and (d) guaranties, or other credit support or
Supporting Obligation provided by, or on behalf of, the lessee with respect
thereof.


 


Legal Final Maturity Date: With respect to any
Series, this term shall have the meaning set forth in the related Supplement.


 


Letter-of-Credit
Rights:  This term shall have the
meaning set forth in the UCC.


 


Leverage Ratio: For any
Person, on a consolidated basis, as of a date of determination, the ratio of (a) Consolidated
Funded Debt to (b) Consolidated Tangible Net Worth.


 


LIBOR:  An interest rate per annum equal to the
average per annum rate of interest determined by the Indenture Trustee (and
notified to each of the Issuer, the Manager and the Administrative Agent) on
the basis of the offered rates for deposits in dollars for an amount equal to
the requested advance of funds and for a term equal to the applicable Interest
Accrual Period, and commencing on the first day of such Interest Accrual
Period, appearing on the Reuters Screen LIBOR 01 Page) as of 11:00 A.M.
(London time) on the Business Day which is the LIBOR Determination Date. If the
Reuters Screen LIBOR 01 Page is not available, then LIBOR shall be the
rate determined by the Administrative Agent (such determination, absent
manifest error, to be conclusive and binding on all parties hereto and their
assignees) as of the LIBOR Determination Date as the rate at which deposits in
immediately available funds in U.S. dollars are being, have been, or would be
offered or quoted by the Administrative Agent to major banks in the applicable
interbank market for Eurodollar deposits at or about 11:00 A.M. (New York
City time) on the Business Day which is the LIBOR Determination Date
immediately preceding the date of such determination for delivery for a term
equal to such Interest Accrual Period.


 


LIBOR  Determination Date:  The date that is the second (2nd) Business Day in London, England prior to the first day of any
Interest Accrual Period.


 


F-Z

















 


Lien:  Any security interest, lien, charge, pledge,
equity or encumbrance of any kind.


 


List of
Containers:  A printed
list of the Containers transferred by the Seller to the Issuer and hereby
certified by an Authorized Signatory, which includes a true and complete list
of all Containers to be conveyed on any Transfer Date. The List of Containers
will include the following information for each such Container: (i) its
Container Identification Numbers and (ii) the type of Container.
Supplements to the List of Containers will be attached to the Container
Transfer Certificate and will contain only unit Container Identification
Numbers for each Container.


 


Majority
of Holders:  With
respect to a Series means, unless otherwise provided in the Supplement
related to such Series, Holders of such Class evidencing more than fifty
percent (50%) of the then outstanding principal balance of such Series of
Notes; or (ii) if such Series includes multiple Classes, the Persons
specified in such Supplement.


 


Managed
Containers:  All
Containers owned by the Issuer at any time.


 


Management
Agreement:  The
Management Agreement, dated as of October 23, 2009 entered into by and
between TAL and the Issuer, as such agreement shall be amended, supplemented or
modified from time to time in accordance with its terms.


 


Management
Fee:  For any Payment Date, an
amount equal to the sum of (i) the product of (x) twelve percent
(12%)  and (y) the Net Operating Income
for the preceding Collection Period (other than Container Revenues on Finance
Leases), (ii) the product of (x) five percent (5%) and (y) Container
Revenues on Finance Leases for the preceding Collection Period and (iii) the
sum of all Disposition Fees for the preceding Collection Period.


 


Management
Fee Arrearage:  For any
Payment Date, an amount equal to all unpaid Management Fees from all prior
Collection Periods.


 


Manager:  The Person performing the duties of the
Manager under the Management Agreement; initially, TAL including its Affiliates
listed on Exhibit B of the Management Agreement.


 


Manager
Advance:  This term shall have the
meaning set forth in Section 4.2 of the Management Agreement.


 


Manager
Default:  The occurrence of any of the
events or conditions set forth in Section 9.1 of the Management Agreement.


 


Manager
Report:  This term is defined in Section 4.1.2
of the Management Agreement.


 


Manager
Termination Notice:  This term
is defined in Section 9.2 of the Management Agreement.


 


Managing
Officer:  Any representative of the
Manager involved in, or responsible for, the management of the day-to-day
operations of the Issuer and the administration and servicing of the Containers
and the other Collateral whose name appears on a list of managing officers 


 


F-AA

















 


furnished
to the Issuer, each Series Enhancer, if any, and the Indenture Trustee by
the Manager, as such list may from time to time be amended.


 


Material
Adverse Change:  Any set of
circumstances or events which (a) pertains to the Issuer, the Seller or
the Manager and has any material adverse effect whatsoever upon the validity or
enforceability of any Transaction Document or the security for any of the
related Notes or the ability of the Indenture Trustee or any Series Enhancer
(if such Series Enhancer is then the Control Party for a Series of
Outstanding Notes or shall have made an unreimbursed payment on its Enhancement
Agreement) to enforce any of its legal rights or remedies pursuant to the
Transaction Documents or (b) materially impairs the ability of either the
Issuer, the Seller or the Manager to fulfill its obligations under the
Transaction Documents.


 


Minimum
Principal Payment Amount:  Except as set forth in an applicable
Supplement for any Series of Outstanding Notes for any Payment Date, the
excess, if any, of (x) the then aggregate unpaid principal balance of such
Series over (y) the Minimum Targeted Principal Balance for such Series for
such Payment Date.


 


Minimum
Targeted Principal Balance:  This term shall have the
meaning set forth, if applicable, in the related Supplement.


 


Moody’s:  Moody’s Investors Service, Inc., and any
successor thereto.


 


MSC:  MSC Mediterranean Shipping Company, S.A. and its Affiliates.


 


Net Book
Value:  As of any date of
determination, with respect to any Managed Container that is not subject to a
Finance Lease, the Original Equipment Cost less accumulated depreciation based
on (i) straight-line depreciation over twelve (12) years with a remaining
residual value per the schedule set forth on Exhibit D to the Indenture or
(ii) any other depreciation method used by the Manager which is more
conservative (i.e., which provides for greater annual depreciation or a lower
remaining residual value), and with respect to any Eligible Container subject
to a Finance Lease, one hundred percent (100%) of the net book value of such
Finance Lease, as determined in accordance with GAAP.


 


Net Operating Income:  For any Collection Period, an amount equal to
the excess (if any) of (i) the Container Revenues actually received during
such Collection Period, over (ii) the Direct Operating Expenses accrued
during such Collection Period.


 


Note Owners:  With respect to a Global Note, the Person who
is the owner of such Global Note, as reflected on the books of (i) the
Depositary (a direct participant) or (ii) a Person maintaining an account
with the Depositary (an indirect participant).


 


Note
Purchase Agreement:  Any
underwriting agreement or other purchase agreement for the Notes of any Class or
Series as each such agreement may be amended, modified or supplemented
from time to time in accordance with its terms.


 


Note
Register:  This term
shall have the meaning set forth in Section 205 of the Indenture.


 


F-BB






 


 










 


Note
Registrar:  This term
shall have the meaning set forth in Section 205 of the Indenture.


 


Noteholder:  The Person in whose name a Note is registered
in the Note Register.


 


Notes:  Any one of the promissory notes or other
securities executed by the Issuer and authenticated by or on behalf of the
Indenture Trustee, substantially in the form attached to the related
Supplement.


 


OFAC:  The Office of Foreign Assets Control of the
United States Department of the Treasury.


 


Officer’s
Certificate:  A certificate
signed by a duly authorized officer of the Person who is required to sign such
certificate.


 


Opinion of
Counsel:  A written opinion of counsel,
who, unless otherwise specified, may be counsel employed by the Issuer, the
Seller or the Manager, in each case reasonably acceptable to the Person or
Persons to whom such Opinion of Counsel is to be delivered. The counsel
rendering such opinion may rely (i) as to factual matters on a certificate
of a Person whose duties relate to the matters being certified, and (ii) insofar
as the opinion relates to local law matters, upon opinions of local counsel.


 


Original Equipment Cost:  With respect to any Container, an amount
equal to the sum of (i) the greater of (A) the vendor’s or
manufacturer’s invoice price of such Container and (B) with respect to
those Containers owned by TAL, TOL and TOCC immediately prior to the Closing
Date that were acquired by TAL, TOL, or TOCC prior to November 4, 2004
through an asset purchase or other acquisition, the purchase price allocated to
a Container by TAL, TOL, or TOCC, as applicable in the acquisition of such
Container, plus (ii) reasonable and customary inspection, transport and
initial positioning costs necessary to put such Container in service not to
exceed three percent (3%) of the amount described in clause (i) above,
plus (iii) the cost of any Capital Improvements made to such Container,
by, or on behalf of, the Issuer which expenditures are capitalized in
accordance with GAAP, provided however,
that the aggregate amount of Capital Improvements that may be included in the
calculation of the Aggregate Net Book Value as of any date of determination may
not exceed an amount equal to five percent (5%) of the Aggregate Net Book
Value, plus (iv) reasonable acquisition fees and other fees not to exceed
two and one half percent (2.5%) of the amount described in clause (i) above.


 


Outstanding:  When used with reference to the Notes and as
of any particular date, any Note theretofore or thereupon being authenticated
and delivered except:


 


(i)            any Note cancelled by the Indenture Trustee or proven to
the satisfaction of the Indenture Trustee to have been duly cancelled by the
Issuer at or before said date;


 


(ii)           any Note, or portion thereof, called for payment or
redemption for which monies equal to the principal amount or redemption price
thereof, as the case may be, with interest to the date of maturity or
redemption, shall have theretofore been deposited with the Indenture Trustee
(whether upon or prior to maturity or the redemption date of such Note);


 


F-CC

















 


(iii)          any Note in lieu of or in substitution for which another
Note shall subsequently have been authenticated and delivered; and


 


(iv)          for purposes of determining which Notes are entitled to
vote with respect to a particular matter, any Note held by the Issuer, the
Seller or any Affiliate of either the Issuer or the Seller, except that, in
determining whether the Indenture Trustee shall be protected in relying upon
any such request, demand, authorization, direction, notice, consent, or waiver,
only Notes that a Responsible Officer of the Indenture Trustee actually has
notice are so owned shall be so disregarded;


 


provided,
however, that notwithstanding the foregoing, any Note on
which any portion of principal or interest has been paid by any Series Enhancer
pursuant to any Enhancement Agreement shall be considered to be Outstanding
until such Series Enhancer has been reimbursed in full therefor in
accordance with the terms of the related Insurance Agreement.


 


Outstanding
Obligations:  As of any
date of determination an amount equal to the sum of (i) the then
outstanding principal balance of, and accrued interest payable on, all notes
issued under the Indenture or any supplement thereto or any note purchase
agreement, (ii) all other amounts owing to holders of Outstanding notes or
to any person under the Indenture or any supplement thereof, including without
limitation any amounts owed by the Issuer to any Series Enhancer, (iii) amounts
owing by the Issuer under any Interest Rate Hedge Agreement, (iv) amounts
owing by the Issuer under any Currency Hedge Agreement and (v) any other
amounts owing to any Series Enhancer under any Transaction Document.


 


Owner:  This term has the same meaning as Issuer.


 


Ownership
Interests:  An
ownership interest in a Global Note.


 


Payment
Date:  The 20th day of each month (or, if such 20th day is not a Business Day, the next succeeding
Business Day), commencing on January 20, 2010.


 


Permanent
Regulation S Global Notes:  The permanent book-entry notes in fully
registered form without coupons that are exchangeable for Temporary Regulation
S Global Notes after the expiration of the 40-day distribution compliance
period and which will be registered with the Depositary.


 


Permitted Business: The marine
container leasing business and any business that is the same as or similar,
reasonably related, complementary, ancillary or incidental to the marine
container leasing business, including, but not limited to, the leasing of
chassis.  The container logistics
business, the container purchase and resale business, and the static storage
business, all as currently engaged in by TAL International Group, TAL or their
respective Subsidiaries on the Closing Date are also deemed to be a Permitted
Business.  For the avoidance of doubt,
all activities contemplated by the Transaction Documents shall be deemed to be
a “Permitted Business” hereunder.


 


Permitted
Encumbrance:  Any of the
following:


 


F-DD

















 


(i)            Liens for taxes, assessments or governmental charges or
levies not yet delinquent or Liens for taxes, assessments or governmental
charges or levies being contested in good faith and by appropriate proceedings
for which adequate cash reserves have been established in accordance with GAAP;


 


(ii)           Liens in respect of property or assets of the Issuer or
any of its Subsidiaries imposed by law which have not arisen to secure
Indebtedness for borrowed money, such as carriers’, seamen’s, stevedores’,
wharfinger’s, depot operators’, transporters’, warehousemens’, mechanics’,
landlord’s, suppliers’, repairmen’s or other like Liens, and relating to
amounts not yet due or which shall not have been overdue for a period of more
than thirty (30) days or which are being contested in good faith by appropriate
proceedings for which adequate cash reserves have been established in
accordance with GAAP;


 


(iii)          Liens created pursuant to the terms of the Indenture and
the other Transaction Documents;


 


(iv)          Liens arising from judgments, decrees or attachments in
respect of which the Issuer shall in good faith be prosecuting an appeal or
proceedings for review and in respect of which there shall have been secured a
subsisting stay of execution pending such appeal or proceedings (including in
connection with the deposit of cash or other property in connection with the
issuance of stay and appeal bonds);


 


(v)           licenses, sublicenses, leases or subleases (including
Leases) granted by, or on behalf of, the Issuer to third Persons in the
ordinary course of business;


 


(vi)          Liens arising from or related to precautionary UCC or like
personal property security financing statements regarding operating leases (if
any) entered into by the Issuer as lessor in the ordinary course of business;


 


(vii)         Liens in favor of customs or revenue authorities arising as
a matter of law to secure payment of customs duties not past due in connection
with the importation of goods;


 


(viii)        Liens arising solely by virtue of any
statutory or common law provision relating to bankers’ liens, rights of set off
or similar rights and remedies as to deposit accounts or other funds maintained
with a creditor depository institution; and


 


(ix)           Liens of any lessee under any Finance Lease;


provided, however, that any
proceedings of the type described in clauses (i), (iv) or (vii) above
would not reasonably be expected to subject any Series Enhancer, the
Indenture Trustee, any Hedge Counterparty or the Noteholders to any civil or
criminal penalty or liability or involve any risk of loss, sale or forfeiture
of any portion of the Collateral that would result in an Asset Base Deficiency.


 


Permitted Payment Date Withdrawals:  For any Payment Date, one of the following:


 


(1)           for any Payment Date other than the Legal Final Maturity
Date, the aggregate amount of the interest and any arrearages thereof payable
on such Payment Date; or


 


F-EE

















 


(2)           for (i) the Legal Final Maturity Date or (ii) any
date on which an Event of Default has occurred and is then continuing and any
Outstanding Notes have been accelerated in accordance with the provisions of
the Indenture, an amount equal to the sum of (x) the aggregate amount of
the interest and arrearages thereof payable on such Payment Date and (y) the
then Aggregate Note Principal Balance.


 


Person:  An individual, a partnership, a limited
liability company, a corporation, a joint venture, an unincorporated
association, a joint-stock company, a trust, or other entity or a Governmental
Authority.


 


Plan:  An “employee pension benefit plan”, as such
term is defined in Section 3(2) of ERISA which is subject to Title IV
of ERISA.


 


Predecessor
Container:  This term
shall have the meaning set forth in Section 3.04 of the Contribution and
Sale Agreement.


 


Premium:  The fee or premium payable to any Series Enhancer
for guaranteeing the Notes of any Series, as such amount is set forth in the
Enhancement Agreement.


 


Prepayment:  Any mandatory or optional prepayment of
principal of the Notes prior to the Expected Final Maturity Date of such Series of
Notes made in accordance with the terms of the Indenture.


 


Prime Rate:  The rate announced by Wachovia Bank, N.A.,
from time to time, as its “prime rate” or “base rate” in the United States,
such rate to change as and when such designated rate changes. The Prime Rate is
not necessarily the lowest rate of interest charged by Wachovia Bank, N.A. in
connection with extensions of credit to debtors.


 


Principal
Terms:  With respect to any Series, (i) the
name or designation of such Series; (ii) the initial principal amount of
the Notes to be issued for such Series (or method for calculating such
amount); (iii) the interest rate to be paid with respect to each Class of
Notes for such Series (or method for the determination thereof); (iv) the
Payment Date and the date or dates from which interest shall accrue and on
which principal is scheduled to be paid; (v) the designation of any Series Accounts
and the terms governing the operation of any such Series Accounts; (vi) the
terms of any form of Series Enhancement with respect thereto; (vii) the
Expected Final Maturity Date (if any) and the Legal Final Maturity Date for the
Series; (viii) the number of Classes of Notes of the Series and, if
the Series consists of more than one Class, the rights and priorities of
each such Class; (ix) the priority of such Series with respect to any
other Series; (x) the Control Party with respect to such Series and
the Rating Agencies, if any, for such Series; (xi) those items constituting
Priority Payments; (xii) the designation of such Series as either a Term
Note or a Warehouse Note; and (xiii) any other terms of such Series.


 


Priority
Payments:  For each Series of
Notes then Outstanding on any Payment Date, all amounts to be paid from the
related Series Account on such Payment Date which represent payments of (i) interest
(but not Default Fees or any other interest expressly excluded pursuant to the
terms of the Supplement for such Series) on such Series of Notes, (ii) commitment
fees payable to the Holders of such Series of Notes and (iii) if any
of the amounts set forth in clauses (i) or (ii) are paid by a Series Enhancer,
then any reimbursement obligations of the Issuer to such 


 


F-FF

















 


Series Enhancer
in respect of such payments, including interest thereon, shall be a Priority
Payment for such Series and paid to such Series Enhancer to the
extent that such payment would not cause a shortfall in other Priority Payments
for the Noteholders of such Series.


 


Proceeding:  Any suit in equity, action at law, or other
judicial or administrative proceeding.


 


Proceeds:  “Proceeds”, as such term is defined in the
UCC.


 


Prospective
Owner:  This term shall have the
meaning set forth in Section 205(j) of the Indenture.


 


Rating
Agency or Rating Agencies:  With respect to any outstanding Series or
Class, each statistical rating agency (if any) selected by the Issuer with the
approval of any Series Enhancer for such Series to rate such Series or
Class and that has an outstanding rating with respect to such Series or
Class. Each such Rating Agency shall be identified in the related Supplement.


 


Rating
Agency Condition:  With
respect to any action to be taken or proposed to be taken, each Rating Agency
having notified the Issuer, or the Manager, in writing that such action will
not result in a reduction or withdrawal of its then-current rating of any Series of
Notes then Outstanding including any underlying rating in respect of such Series of
Notes issued to a Series Enhancer without giving effect to the related Series Enhancement.


 


Receivables
Threshold:  As of any
date of determination, means the lesser of (i) $5.5 million and (ii) 0.55%
of the Aggregate Net Book Value as of such date of determination.


 


Record
Date:  With respect to any Payment
Date, unless otherwise specified in a Supplement, the last Business Day of the
Interest Accrual Period ending on the day preceding such Payment Date.


 


Regulation S Global Notes: Collectively, the Permanent
Regulation S Global Notes and the Temporary Regulation S Global Notes.


 


Reimbursement Amount:  All amounts owed by the
Issuer to a Series Enhancer under the related Enhancement Agreement and
the other Transaction Documents.


 


Related
Assets:  With respect to any
Transferred Container, all of the following: 
(i) all Casualty Proceeds, Sales Proceeds and Container Revenues
accrued as of the related Transfer Date, (ii) all right, title and
interest in and to, but none of the obligations under, any agreement with the
manufacturer of such Container or any third party with respect to such
Container, and all amendments, additions and supplements made with respect to
such Container, (iii) all right, title and interest in and to any Lease
Agreement to which such Container is subject (to the extent, but only to the
extent) that Lease Agreement relates to such Container), including, without
limitation, the Seller’s interest under all amendments, additions and
supplements thereto, (iv) all other security interests or liens and
property subject thereto from time to time purporting to secure payment of a
Lease Agreement (to the extent, but only to the extent, attributable to such
Container), (v) all letters of credit, guarantees, Supporting Obligations
and other agreements or arrangements of whatever character from time to time
supporting or securing payment of any 


 


F-GG

















 


Lease
Agreement (to the extent, but only to the extent, attributable to such
Container), (vi) any insurance proceeds received with respect to such
Container, (vii) all books and records relating to such Container, (viii) all
payments, proceeds and income of the foregoing or related thereto; (ix) any
agreement with the manufacturer of such Container, and all amendments,
additions and supplements made with respect to such Container, to the extent,
but only to the extent, relating to such Container; and (x) all rights
under UCC financing statements or documents of similar import evidencing a security
interest in favor of the Seller with respect to such Container (including any
such financing statement filed pursuant to Section 2.03(a)(iii) of
the Contribution and Sale Agreement).


 


Required
Deposit Rating:  With regard
to an institution, the short-term unsecured senior debt rating of such
institution is in the highest category by each Rating Agency, or if no Series is
rated, by each of S&P and Moody’s.


 


Requisite
Global Majority:  As of any
date of determination, the determination of whether a Requisite Global Majority
exists with respect to a particular course of action shall be determined in
accordance with Section 503 of the Indenture.


 


Responsible
Officer:  When used with respect to the
Indenture Trustee, any officer assigned to the Corporate Trust Office (or any
successor thereto), including any Vice President, Assistant Vice President,
Trust Officer, any Assistant Secretary, any trust officer or any other officer
of the Indenture Trustee customarily performing functions similar to those performed
by any of the above designated officers and having direct responsibility for
the administration of the Indenture.


 


Restricted
Cash Account:  This term
shall have the meaning set forth in Section 306 of the Indenture.


 


Restricted
Cash Amount:  As of any
Payment Date, the amount required to be deposited or maintained in the
Restricted Cash Account, which shall be equal to the product of (a) on the
Closing Date, zero (0); on the first Payment Date, one (1); on the second
Payment Date, two (2); and thereafter, three (3), (b) one-twelfth (1/12), (c) the
weighted average (based on unpaid principal balance) of the annual rates of
interest payable by the Issuer on all Notes then Outstanding (or, to the extent
that an Interest Rate Hedge Agreement is in effect with respect to all, or a
portion of, such principal balances, the interest rate payable by the Issuer on
such Interest Rate Hedge Agreement) and (d) the then Aggregate Note
Principal Balance calculated after giving effect to all principal payments
actually paid on such date.


 


Restricted Subsidiary:  With respect to any Person, any Subsidiary of
such Person that is not an Unrestricted Subsidiary (as defined in the Credit
Agreement) of such Person.


 


Rule 144A:  Rule 144A under the Securities Act, as
such rule may be amended from time to time.


 


Rule 144A
Global Notes: The permanent book-entry notes in fully registered
form without coupons that represent the Notes sold in reliance on Rule 144A
and which will be registered with the Depositary.


 


F-HH

















 


S&P:  Standard & Poor’s Ratings Group, a
division of The McGraw-Hill Companies, Inc., and any successor thereto.


 


Sale:  This term shall have the meaning set forth in
Section 816 of the Indenture.


 


Sales
Proceeds:  With
respect to any Managed Container that (i) has been sold to a third party,
or (ii) is the subject of a Casualty Loss, an amount equal to the excess
of (a) the gross proceeds of the sale or other disposition (including any
Last Lessee Damage Payment) of a Managed Container or Casualty Proceeds, if
any, received by the Manager in respect of a Managed Container, over (b) commissions,
administrative fees, handling charges, taxes, reserves or other similar amounts
paid, or to be paid, to Persons other than the Manager in connection with the
sale or other disposition as determined in the sole discretion of the Manager;
provided, however, that to the extent that any such commission, administrative
fees, handling charges or other similar amount is to be paid to an Affiliate of
the Manager, the amount of such fee or other charge shall not exceed the amount
that would have otherwise been payable to an independent third party in an
arms-length transaction.


 


Sanctioned Country:  A country subject to a sanctions program
identified on the list maintained by OFAC and available at
http://www.treas.gov/offices/enforcement/ofac/programs, or as otherwise
published from time to time.


 


Sanctioned Person:  Any of the following currently or in the
future: (i) a person named on the list of Specially Designated Nationals
or Blocked Persons maintained by OFAC available at
http://www.treas.gov/offices/eotffc/ofac/sdn/index.html, or (ii) (A) an
agency of the government of a Sanctioned Country, (B) an organization
controlled by a Sanctioned Country, or (C) a person resident in a
Sanctioned Country, to the extent the agency, organization, or person is
subject to a sanctions program administered by OFAC.


 


Scheduled
Principal Payment Amount: Except as set
forth in an applicable Supplement, for any Payment Date for any Series, the
excess, if any, of (x) the then unpaid principal balance of such Series of
Outstanding Notes (after giving effect to any payment of the Minimum Principal
Payment Amount for such Series on such Payment Date) over (y) the
Scheduled Targeted Principal Balance for such Series for such Payment
Date.


 


Scheduled
Targeted Principal Balance:
This term shall have the meaning set forth, if applicable, in the
related Supplement.


 


Securities
Act:  The Securities Act of 1933, as
amended from time to time.


 


Security
Entitlements:  This term
shall have the meaning set forth in the UCC.


 


Securities
Intermediary:  The Person
then acting as “securities intermediary” (as defined in Section 8-102(a)(14)
of the UCC) for any of the Trust Account, the Restricted Cash Account, the
Temporary Loss Account and any Series Accounts; initially, U. S. Bank
National Association.


 


Seller:  TAL, and its successors and permitted
assigns.


 


F-II

















 


Series:  Any series of Notes established pursuant to a
Supplement.


 


Series Account:  Any deposit, trust, escrow or similar account
maintained for the benefit of the Noteholders and any related Series Enhancer
of any Series or Class, if any, as specified in the related Supplement.


 


Series 2009-1
Supplement:  The Series 2009-1
Supplement, dated October 23, 2009, issued pursuant to, and incorporating
the terms of, the Indenture.


 


Series Enhancement:  The rights and benefits provided to the
Noteholders of any Series or Class pursuant to any letter of credit,
surety bond, financial guaranty, insurance policy, insurance agreement or other
similar arrangement.  The subordination
of any Class to another Class shall be deemed not to be Series Enhancement.


 


Series Enhancer:  A Person then providing any Series Enhancement.


 


Series Issuance
Date:  With respect to any Series,
the date on which the Notes of such Series are to be originally issued in
accordance with Section 1006 of the Indenture and the related Supplement.


 


Servicing Standard:  This term shall have the meaning set forth in
Section 3.1 of the Management Agreement.


 


Specialized Containers:  All refrigerated containers, tank containers,
special purposes containers, open top containers, flat rack containers, bulk
containers, high cube containers (other than 40’ high cube dry containers),
cellular palletwide containers and all other types of containers other than
standard dry cargo containers.


 


State:  Any state of the United States of America
and, in addition, the District of Columbia.


 


Subject Note:  This term shall have the meaning set forth in
Section 205(l) of the Indenture.


 


Subservicer: This term
shall have the meaning set forth in Section 2.2 of the Management
Agreement.


 


Subservicing Agreement: This term shall
have the meaning set forth in Section 2.2 of the Management Agreement.


 


Subsidiary:  A subsidiary of a Person means any
corporation, association, partnership, limited liability company, joint venture
or other business entity of which more than fifty percent (50.0%) of the voting
stock or other equity interests (in the case of Persons other than
corporations) is owned or controlled directly or indirectly by such Person, or
one or more of the Subsidiaries of such Person, or a combination thereof.


 


Substitute
Container:  This term
is defined in Section 3.04 of the Contribution and Sale Agreement.


 


F-JJ

















 


Supplement:  Any supplement to the Indenture executed in
accordance with Article X of the Indenture.


 


Supplemental Principal
Payment:  This term shall have the
meaning set forth in Section 702(a) of the Indenture.


 


Supplemental
Principal Payment Amount:  On
any Payment Date, the excess, if any, of (i) the Aggregate Note Principal
Balance (calculated after giving effect to any payment of the Minimum Principal
Payment Amount and the Scheduled Principal Payment Amount for all Series of
Notes then Outstanding on such Payment Date), over (ii) the Asset Base on
such Payment Date.


 


Supporting
Obligation:  This term
shall have the meaning set forth in the UCC.


 


Systems/Organizational
Establishment Expenses. The aggregate of all expenditures (whether
paid in cash or accrued as liabilities) by the Issuer in establishing,
implementing, integrating or replacing financial, information technology and
other similar systems of the Issuer.


 


TAL:  TAL International Container Corporation, a
Delaware corporation.


 


TAL International Group:  TAL International Group, Inc., a
Delaware corporation.


 


TOCC:  Trans Ocean Container Corporation, a
corporation organized under the laws of the State of Delaware, and its
successors and permitted assigns.


 


TOL:  Trans Ocean Ltd., a corporation organized
under the laws of the State of Delaware, and its successors and permitted
assigns.


 


Tape:  This term shall have the meaning set forth in Section 3.10.3
of the Management Agreement.


 


Taxes:  This term shall have the meaning set forth in
the related Supplement.


 


Temporary
Regulation S Global Notes: The temporary book-entry
notes in fully registered form without coupons that represent the Notes sold in
offshore transactions within the meaning of and in compliance with Regulation S
under the Securities Act and which will be registered with the Depositary.


 


Term:  This term shall have the meaning set forth in
Section 6.1.1 of the Management Agreement.


 


Term Note:  Any Note that pays principal and interest on
each Payment Date from and after its date of issuance.


 


Transaction
Documents:  Any and all
of the Indenture, each Supplement, each Enhancement Agreement, each Insurance
Agreement, the Notes, the Management Agreement, the Contribution and Sale
Agreement,  the Director Services
Agreement, each Note Purchase Agreement, the Administration Agreement, the
Interest Rate Hedge Agreements (upon execution 


 


F-KK

















 


thereof),
the Currency Hedge Agreements (upon execution thereof), all other transaction
documents and any and all other agreements, documents and instruments executed
and delivered by or on behalf of support of Issuer with respect to the issuance
and sale of the Notes, as any of the foregoing may from time to time be
amended, modified, supplemented or renewed.


 


Transfer
Date:  The date on which a Container
is contributed or sold by the Seller to the Issuer pursuant to the terms of the
Contribution and Sale Agreement.


 


Transferee:  This term shall have the
meaning set forth in Section 205(1) of the Indenture.


 


Transferred
Assets:  Transferred Containers and
Related Assets collectively.


 


Transferred
Container:  A Container
transferred by the Seller to the Issuer.


 


Transferred
Note: 
This term shall have the meaning set forth in Section 205(1) of
the Indenture.


 


Trust
Account:  The account or accounts
established pursuant to Section 302 of the Indenture.


 


UCC:  The Uniform Commercial Code as in effect in
the State of New York.  In the event
that, by reason of mandatory provisions of law, any or all of the attachment,
perfection or priority of Indenture Trustee’s security interest in any
Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the State of New York, the term UCC shall mean the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of
the provisions relating to such attachment, perfection of priority and for
purposes of definitions related to such provisions.


 


UNIDROIT Convention:  Any convention promulgated by the
International Institute for the Unification of Private Law specifically dealing
with interests in shipping containers.


 


Warehouse Notes:  Any Series of the Notes which contain
(or the related Supplement for which contains or the related Note Purchase
Agreement for which contains) provisions whereby (x) the Issuer may
request additional fundings from the related Noteholders from time to time and (y) the
unpaid principal balances of such Notes are not scheduled to amortize for some
specified period of time.  If the
Conversion Date of a Series of Warehouse Notes has occurred, such Series shall
no longer be considered an Outstanding Series of Warehouse Notes but shall
instead be considered an Outstanding Series of Term Notes.


 


Warranty
Purchase Amount:  With
respect to any Managed Container, an amount equal to the excess of (i) the
Net Book Value of such Managed Container on the date which the Issuer acquired
such Container from the Seller pursuant to the Contribution and Sale Agreement,
less (ii) the aggregate amount of Net Operating Income received by the
Issuer with respect to such Managed Container since the date on which the
Issuer acquired such Managed Container.


 


Weighted
Average Age:  For any
date of determination, an amount that shall be determined to the following
equation:


 


F-LL

















 




	
   

  	
  WAA
  =

  	
   

  	
   (Un x AAn x EUn)

  	
   

  
	
   

  	
   

  	
   (Un x EUn)

  	
   

  






 


where:


 


	
   

  	
  WAA

  	
  =

  	
  Weighted Average Age

  
	
   

  	
  N

  	
  =

  	
  Type
  of unit (which shall be determined by reference to the list below)

  
	
   

  	
  Un

  	
  =

  	
  Number
  of Managed Container units of type n

  
	
   

  	
  AAn

  	
  =

  	
  Average
  age in years of Managed Container units of type n (as determined from the
  date of the initial sale of such Managed Container units by the manufacturer
  thereof)

  
	
   

  	
  EUn

  	
  =

  	
  “EU
  Factor” for Managed Container units of type n (which shall be determined by
  reference to the chart below)

  



 


For
the purpose of the foregoing equation, the variable “n” shall be one of the
following unit types:  (i) 20DC; (ii) 40DC;
(iii) 40HC; (iv) 45MC; (v) 20RF; (vi) 40HR; (vii) 40RF;
(viii) GENS; (ix) 20FR; (x) 40FR; (xi) 20OT; and (xii) 40OT.


 


The
foregoing equation is intended to calculate the Weighted Average Age of the
Managed Containers. The calculation considers the year of manufacture for each
unit, and by type of unit.  In addition,
the calculation treats each unit type by their EU Factor, as determined by the
EU chart listed below.


 


For
the purpose of the foregoing equation, the variable “EUn” with respect
to a particular unit type “n” shall be equal to the value set forth in the
chart below under the heading “EU Factor” opposite the appropriate unit type “n”:


 


	
   

  	
  Unit
  Type

  	
   

  	
  EU Factor

  	
   

  	
   

  
	
   

  	
  20DC

  	
   

  	
  1.00

  	
   

  	
   

  
	
   

  	
  40DC

  	
   

  	
  1.60

  	
   

  	
   

  
	
   

  	
  40HC

  	
   

  	
  1.68

  	
   

  	
   

  
	
   

  	
  45MC

  	
   

  	
  2.02

  	
   

  	
   

  
	
   

  	
  20RF

  	
   

  	
  8.00

  	
   

  	
   

  
	
   

  	
  40HR

  	
   

  	
  10.00

  	
   

  	
   

  
	
   

  	
  40RF

  	
   

  	
  10.00

  	
   

  	
   

  
	
   

  	
  GENS

  	
   

  	
  5.00

  	
   

  	
   

  
	
   

  	
  20FR

  	
   

  	
  1.90

  	
   

  	
   

  
	
   

  	
  40FR

  	
   

  	
  3.00

  	
   

  	
   

  
	
   

  	
  20OT

  	
   

  	
  1.30

  	
   

  	
   

  
	
   

  	
  40OT

  	
   

  	
  2.20

  	
   

  	
   

  



 


F-MM