EXHIBIT
4.32


 




 





TAL ADVANTAGE III LLC


Issuer


 


and


 


WELLS FARGO BANK, NATIONAL ASSOCIATION


Indenture Trustee


 






 


SERIES 2009-1 SUPPLEMENT


 


Dated as of October 23, 2009


 


to


 


INDENTURE


 


Dated as of October 23, 2009


 






 


SERIES 2009-1 FLOATING RATE SECURED NOTES




 





 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE I

  	
   

  	
  DEFINITIONS

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 101.

  	
   

  	
  Definitions

  	
   

  	
  1

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  	
   

  	
  CREATION OF THE
  SERIES 2009-1 NOTES; MODIFICATION OF INDENTURE

  	
   

  	
  6

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 201.

  	
   

  	
  Designation and
  Principal Terms

  	
   

  	
  6

  
	
  Section 202.

  	
   

  	
  Authentication
  and Delivery

  	
   

  	
  8

  
	
  Section 203.

  	
   

  	
  Interest and
  Other Payments on the Series 2009-1 Notes

  	
   

  	
  8

  
	
  Section 204.

  	
   

  	
  Principal
  Payments on the Series 2009-1 Notes; Scheduled Amortization of
  Series 2009-1 Notes

  	
   

  	
  9

  
	
  Section 205.

  	
   

  	
  Amounts and
  Terms of Series 2009-1 Noteholder Commitments

  	
   

  	
  10

  
	
  Section 206.

  	
   

  	
  Taxes

  	
   

  	
  11

  
	
  Section 207.

  	
   

  	
  Increased Costs

  	
   

  	
  14

  
	
  Section 208.

  	
   

  	
  Capital
  Requirements

  	
   

  	
  16

  
	
  Section 209.

  	
   

  	
  Replacement of
  Series 2009-1 Noteholder

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  	
   

  	
  SERIES 2009-1
  SERIES ACCOUNT AND ALLOCATION AND APPLICATION OF AMOUNTS THEREIN

  	
   

  	
  17

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 301.

  	
   

  	
  Series 2009-1
  Series Account

  	
   

  	
  17

  
	
  Section 302.

  	
   

  	
  Distributions
  from Series 2009-1 Series Account

  	
   

  	
  18

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  	
   

  	
  ADDITIONAL
  COVENANTS; ADDITIONAL EVENTS OF DEFAULT

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 401.

  	
   

  	
  Increase in the
  Aggregate Series 2009-1 Note Existing Commitment

  	
   

  	
  20

  
	
  Section 402.

  	
   

  	
  Issuance of
  Additional Series of Notes

  	
   

  	
  20

  
	
  Section 403.

  	
   

  	
  Use of Proceeds

  	
   

  	
  20

  
	
  Section 404.

  	
   

  	
  Consent of the
  Majority of Holders

  	
   

  	
  20

  
	
  Section 405.

  	
   

  	
  United States
  Federal Income Tax Election

  	
   

  	
  20

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  	
   

  	
  CONDITIONS OF
  CLOSING AND FUTURE LENDING

  	
   

  	
  21

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 501.

  	
   

  	
  Conditions to
  Closing

  	
   

  	
  21

  
	
  Section 502.

  	
   

  	
  Advances on
  Series 2009-1 Notes

  	
   

  	
  22

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  	
   

  	
  REPRESENTATIONS
  AND WARRANTIES

  	
   

  	
  23

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 601.

  	
   

  	
  Existence

  	
   

  	
  23

  
	
  Section 602.

  	
   

  	
  Authorization

  	
   

  	
  23

  
	
  Section 603.

  	
   

  	
  No Conflict; Legal Compliance

  	
   

  	
  23

  
	
  Section 604.

  	
   

  	
  Validity and Binding Effect

  	
   

  	
  23

  



 


i

















 


TABLE OF CONTENTS


 


(continued)


 


	
   

  	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 605.

  	
   

  	
  Material Adverse
  Change

  	
   

  	
  24

  
	
  Section 606.

  	
   

  	
  Place of
  Business

  	
   

  	
  24

  
	
  Section 607.

  	
   

  	
  No Agreement or
  Contracts

  	
   

  	
  24

  
	
  Section 608.

  	
   

  	
  Consents and
  Approvals

  	
   

  	
  24

  
	
  Section 609.

  	
   

  	
  Margin
  Regulations

  	
   

  	
  24

  
	
  Section 610.

  	
   

  	
  Taxes

  	
   

  	
  24

  
	
  Section 611.

  	
   

  	
  Other
  Regulations

  	
   

  	
  25

  
	
  Section 612.

  	
   

  	
  Solvency and
  Separateness

  	
   

  	
  25

  
	
  Section 613.

  	
   

  	
  No Default

  	
   

  	
  26

  
	
  Section 614.

  	
   

  	
  Litigation and
  Contingent Liabilities

  	
   

  	
  26

  
	
  Section 615.

  	
   

  	
  Title; Liens

  	
   

  	
  26

  
	
  Section 616.

  	
   

  	
  Subsidiaries

  	
   

  	
  26

  
	
  Section 617.

  	
   

  	
  No Partnership

  	
   

  	
  26

  
	
  Section 618.

  	
   

  	
  Pension and
  Welfare Plans

  	
   

  	
  26

  
	
  Section 619.

  	
   

  	
  Ownership of the
  Issuer

  	
   

  	
  26

  
	
  Section 620.

  	
   

  	
  Security
  Interest Representations.

  	
   

  	
  26

  
	
  Section 621.

  	
   

  	
  Tax Election of
  the Issuer

  	
   

  	
  28

  
	
  Section 622.

  	
   

  	
  Survival of
  Representations and Warranties

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  	
  MISCELLANEOUS
  PROVISIONS

  	
   

  	
  28

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Section 701.

  	
   

  	
  Ratification of
  Indenture

  	
   

  	
  28

  
	
  Section 702.

  	
   

  	
  Counterparts

  	
   

  	
  28

  
	
  Section 703.

  	
   

  	
  Governing Law

  	
   

  	
  28

  
	
  Section 704.

  	
   

  	
  Amendments and
  Modifications.

  	
   

  	
  28

  
	
  Section 705.

  	
   

  	
  Consent to
  Jurisdiction

  	
   

  	
  29

  
	
  Section 706.

  	
   

  	
  Waiver of Jury Trial

  	
   

  	
  29

  
	
  EXHIBITS

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT
  A

  	
  Form of
  Series 2009-1 Note

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULES

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SCHEDULE
  1

  	
  Percentage of Minimum
  Targeted Principal Balance Series 2009-1 Notes

  	
   

  	
   

  
	
  SCHEDULE 2

  	
  Commitments

  	
   

  	
   

  
						



 


ii

















 


This SERIES 2009-1
SUPPLEMENT, dated as of October 23, 2009 (as amended, modified or
supplemented from time to time in accordance with the terms hereof, this “Supplement”),
is 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
indenture trustee (the “Indenture Trustee”).


 


Each party agrees as follows for the benefit of the other party and the
Series 2009-1 Noteholders:


 


ARTICLE I


 


Definitions


 


Section 101.           Definitions.  (a)  Whenever used in this Supplement,
the following words and phrases shall have the following meanings, and the
definitions of such terms are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such terms.


 


“Additional Series 2009-1 Noteholder” shall have the meaning set forth in Section 205(d).


 


“Adjusted Eurodollar Rate”  means, for any Interest Accrual
Period, an interest rate per annum equal to the quotient, expressed as a
percentage and rounded upwards (if necessary) to the nearest 1/1000 of 1%,
obtained by dividing (i) LIBOR on the second Business Day immediately
preceding the first day of such Interest Accrual Period by (ii) the
decimal equivalent of 100% minus the Eurodollar Reserve Percentage on the
second Business Day immediately preceding the first day of such Interest
Accrual Period.


 


“Aggregate Series 2009-1 Principal Balance” means, as of
any date of determination, an amount equal to the sum of the Series 2009-1
Principal Balances of all Series 2009-1 Notes then Outstanding.


 


“Applicable Funding Basis” means, for any
day during any Interest Accrual Period, one of the following:


 


(i)                    if no Eurodollar Disruption Event is then
continuing, the Adjusted Eurodollar Rate; or


 


(ii)                   if a Eurodollar Disruption Event is then
continuing, the Base Rate.


 


“Applicable Margin” means, for any Interest
Accrual Period, one of the following amounts:


 


(i)            prior
to the Conversion Date, four and one quarter of one percent (4.25%); or


 

















 


(ii)           on
or after the Conversion Date, five and three quarters of one percent (5.75%).


 


The amount of the
Applicable Margin shall be increased from time to time in accordance with the
provisions of Section 205(d).


 


“Availability” means, as of any date of
determination for any Series 2009-1 Noteholder, the lesser of:


 


(A) the excess, if any,
of (x) the Series 2009-1 Note Existing Commitment of such Series 2009-1
Noteholder on such date of determination over (y) the then Series 2009-1
Principal Balance of the Series 2009-1 Note owned by such Series 2009-1
Noteholder on such date of determination; and


 


(B) such Series 2009-1
Noteholder’s Percentage of an amount equal to the excess of (x) the Asset
Base, over (y) the then Aggregate Note Principal Balance (calculated
without giving effect to the requested Series 2009-1 Advance).


 


“Base Rate” means on any date, a
fluctuating rate of interest per annum equal to the higher of (a) the
Prime Rate and (b) the Federal Funds Rate plus 0.50% per annum.


 


“Benefit
Plan Investor”  means 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.


 


“Breakage Costs” means, with respect to an
Interest Accrual Period, any reasonable loss, cost or expense incurred by a Series 2009-1
Noteholder, including, without limitation, any loss (including loss of
anticipated profits, net of anticipated profits in the reemployment of such
funds), cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Series 2009-1 Noteholder to
fund or maintain a Series 2009-1 Advance, as the case may be, during such
Interest Accrual Period.


 


“Closing Date” means October 26, 2009.


 


“Commitment Fee” shall have the meaning set
forth in Section 205(c) hereof.


 


“Commitment Fee Percentage” means one half
of one percent (0.50%) per annum.


 


“Control Party” means, with respect to the Series 2009-1
Notes, the Majority of Holders of the Series 2009-1 Notes.


 


“Conversion Date” means, with respect to the Series 2009-1
Notes, the earlier to occur of (i) the date on which an Early Amortization
Event occurs under any Series of Notes issued pursuant to the Indenture,
and (ii) the Scheduled Commitment Expiration Date.


 


2

















 


“Default Fee”
means, for any Payment Date on which interest on overdue amounts is payable in
accordance with the provisions of Section 203(b) hereof, the amount
of interest payable on such Payment Date pursuant to the provisions of Section 203(b).


 


“Default Rate” means, for any date of
determination, an interest rate per annum equal to the sum of (i) the
interest rate then otherwise in effect, plus (ii) two percent (2%).


 


“Deficiency Amount”
means (a) for each Payment Date other than the Series 2009-1 Legal
Final Maturity Date, any shortfall in the aggregate amount available in the Series 2009-1
Series Account for the Series 2009-1 Notes or any other amounts
available under the Indenture or this Supplement to pay the Series 2009-1
Interest Payment for such Payment Date, and (b) on the Series 2009-1
Legal Final Maturity Date, any shortfall in the aggregate amount available in
the Series 2009-1 Series Account or any other amounts available under
the Indenture or this Supplement to pay the then Aggregate Series 2009-1
Principal Balance, accrued but unpaid interest thereon and all other amounts
owing to the Series 2009-1 Noteholders pursuant to the terms of the Series 2009-1
Transaction Documents.


 


“Dollars” and the sign “$” means lawful money of the United States
of America.


 


“Early Amortization Event” shall have the meaning set
forth in Appendix A to the Indenture.


 


“Eurodollar Disruption
Event” means as of any date of
determination, the existence of any of the following events or conditions: (a) a
reasonable determination by a Series 2009-1 Noteholder that it would be
contrary to law, or to the directive of any central bank or other governmental
authority (whether or not having the force of law), to obtain Dollars in the
London interbank market to make, fund or maintain its investment in any Series 2009-1
Note, or (b) the inability of a Series 2009-1 Noteholder (due to no
fault of its own) to obtain Dollars in the London interbank market to make,
fund or maintain its investment in any Series 2009-1 Note, (c) a
determination by a Series 2009-1 Noteholder, (or any of its assignees or
participants) or the related Deal Agent that the rate at which deposits of
Dollars are being offered to such lender in the London interbank market does
not accurately reflect the cost to such Series 2009-1 Noteholder (or any
of its assignees or participants) of making, funding or maintaining any Series 2009-1
Advance for such Interest Accrual Period, or (d) any Series 2009-1
Noteholder (or any of its assignees or participants) shall have notified the
Deal Agent of the inability, for any reason, of such Series 2009-1
Noteholder (or any of its assignees or participants) to determine the Adjusted
Eurodollar Rate.


 


“Federal Funds Rate” means as of any date of
determination, a fluctuating interest rate per annum equal to the weighted
average of the federal funds rates and confirmed in Federal Reserve Board
Statistical Release H.15 (519) or any successor or substitute publication
selected by the Indenture Trustee (or, if such day is not a Business Day, for
the next preceding Business Day), or, if, for any reason, such rate is not
available on any day, the rate determined, in the sole opinion of the Indenture
Trustee, to be the rate at which federal funds are being offered for sale in
the national federal funds market at 9:00 a.m. (New York City time on such
day).


 


“Indemnified Party” has the meaning given
thereto in Section 206.


 


3

















 


“Indenture” means the Indenture, dated
as of October 23, 2009 between the Issuer and the Indenture Trustee, as
the same may be amended, amended and restated or otherwise modified from time
to time.


 


“Interest Accrual Period” means with respect to each Series 2009-1 Advance, the period
commencing on and including the immediately preceding Payment Date and ending
on the last day immediately preceding the next Payment Date.  In the case of a Series 2009-1 Advance
made on a date other than the first day of an Interest Accrual Period, the
initial Interest Accrual Period for such Series 2009-1 Advance shall begin
on the day of such Series 2009-1 Advance and shall end on the Payment Date
in the following month.  When switching
from Adjusted Eurodollar Rate to Base Rate funding, the first Interest Accrual
Period with respect to such Base Rate funding shall begin on the date of such
switch and shall end on a date selected by the Issuer in its discretion.


 


“Majority of Holders” means, with respect to the Series 2009-1
Notes, either (A) if there are fewer than three Series 2009-1
Noteholders, one or more Series 2009-1 Noteholders holding Notes
constituting one hundred percent (100%) of the then Aggregate Series 2009-1
Principal Balance, or (B) at all times not covered by clause (A), one or
more Series 2009-1 Noteholders holding Notes constituting more than fifty
percent (50%) of the then Aggregate Series 2009-1 Principal Balance.


 


“Minimum Principal Payment Amount” means, for the
Series 2009-1  Notes on any Payment
Date, one of the following:


 


(1)           for any Payment Date
prior to the Conversion Date, zero; or


 


(2)           for any Payment Date
following Conversion Date, the excess, if any, of (x) the Aggregate Series 2009-1
Principal Balance, over (y) the Minimum Targeted Principal Balance for the
Series 2009-1 Notes for such Payment Date.


 


“Minimum Targeted Principal Balance” means for the Series 2009-1
Notes for each Payment Date, an amount equal to the product of (x) the
Aggregate Series 2009-1 Principal Balance on the Conversion Date and (y) the
percentage set forth opposite such Payment Date (based on the number of Payment
Dates elapsed from the Closing Date) on Schedule 1 hereto under the column
titled “Percentage (Minimum Targeted Principal Balance)”.


 


“Other Taxes” shall have the meaning set forth in Section 206(b).


 


“Payment Date” shall have the meaning set
forth in Section 201.


 


“Percentage” means, with respect to any Series 2009-1
Noteholder as of any date of determination, a fraction (expressed as a
percentage), the numerator of which is such Series 2009-1 Noteholder’s Series 2009-1
Note Existing Commitment and the denominator of which is equal to the sum of
the Series 2009-1 Note Existing Commitments of all Series 2009-1
Noteholders.


 


“Plan” means any employee pension
benefit plan, as defined in Section 3(2) of ERISA, that is subject to
Title IV of ERISA and that is established or maintained by the Issuer.


 


4

















 


“Prime Rate” means the rate announced
by Wachovia Bank, National Association, 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 Citibank, N.A. in connection with extensions of credit to
debtors.


 


“Scheduled Commitment Expiration Date” shall have the meaning set forth in the Series 2009-1 Note Purchase
Agreement.


 


“Series 2009-1” means the Series of
Notes the terms of which are specified in this Supplement.


 


“Series 2009-1 Advance” means an
advance of funds made by one or more of the Series 2009-1 Noteholders
pursuant to the provisions of Section 205(b) of this Supplement.


 


“Series 2009-1 Expected Final Maturity Date” means the
Payment Date occurring the fourth (4th) anniversary of the Conversion Date.


 


“Series 2009-1 Interest Payment” means for each Payment Date,
an amount equal to the sum for each Series 2009-1 Advance outstanding for
each day during the Interest Accrual Period ending on the preceding day of  the product of (i) the principal amount of such Series 2009-1
Advance, (ii) an amount equal to the sum of (x) the Applicable
Funding Basis for such Series 2009-1 Advance and (y) the Applicable
Margin, and (iii) 1/360, in the case of the Adjusted Eurodollar Rate, or
1/365 or 1/366, as applicable, in the case of the Base Rate.


 


“Series 2009-1  Legal Final Maturity Date” means the
Payment Date occurring on the fourth (4th) anniversary of the Conversion Date.


 


“Series 2009-1 Note Existing Commitment” means, with
respect to any Series 2009-1 Noteholder, the purchase limit or commitment
set forth in the Series 2009-1 Note Purchase Agreement, as such commitment
may be (i) increased in accordance with the terms of the Series 2009-1
Note Purchase Agreement or (ii) reduced from time to time at the request
of the Issuer, in each case in accordance with the terms of the Series 2009-1
Note Purchase Agreement.


 


“Series 2009-1 Note Initial Commitment” means, with
respect to any Series 2009-1 Noteholder, the amount set forth opposite the
name of such Series 2009-1 Noteholder on Schedule 2 hereto (as such
Schedule 2 shall be deemed to be amended by a properly executed Related Group
Addition Notice (as such term is defined in the Series 2009-1 Note
Purchase Agreement), Assignment and Acceptance (as such term is defined in the Series 2009-1
Note Purchase Agreement)) or Increase Letter (as such term is defined in the Series 2009-1
Note Purchase Agreement).


 


“Series 2009-1 Note Purchase Agreement” means the Note
Purchase Agreement, dated as of October 23, 2009, among the Issuer, the
initial Series 2009-1 Noteholder and various financial institutions from
time to time, as such agreement may be amended or restated from time to time.


 


5

















 


“Series 2009-1 Noteholder” shall mean the
Person in whose name a Series 2009-1 Note is registered in the Note
Register.


 


“Series 2009-1 Notes” shall mean any
one of the notes, substantially in the form of Exhibit A to this
Supplement, issued pursuant to the terms of this Supplement, and replacements
therefor issued pursuant to the terms of the Indenture.


 


“Series 2009-1 Principal Balance” means, with
respect to any Series 2009-1 Note as of any date of determination, an
amount equal to the excess, if any, of (x) the sum of all Series 2009-1
Advances made by such Series 2009-1 Noteholder on or subsequent to the
Closing Date, over (y) the cumulative amount of all principal payments
(including Prepayments) actually paid to such Series 2009-1 Noteholder
subsequent to the Closing Date.


 


“Series 2009-1 Series Account” means a Series Account
for Series 2009-1 established by the Issuer in the name of the Issuer with
the Indenture Trustee into which funds are deposited from the Trust Account
pursuant to Section 302 of the Indenture.


 


“Series 2009-1 Transaction
Documents” means this Supplement, the Series 2009-1
Notes, the Series 2009-1 Note Purchase Agreement, all other Transaction
Documents, any Hedge Agreements, and any and all other agreements, documents
and instruments executed and delivered by or on behalf or in support of the
Issuer with respect to the issuance and sale of the Series 2009-1 Notes,
as any of the foregoing may from time to time be amended, modified,
supplemented or renewed.


 


“Series 2009-1 Unused Commitment” means, with
respect to any Series 2009-1 Noteholder as of any date of determination,
the excess, if any, of (i) the Series 2009-1 Note Existing Commitment
then in effect for such Series 2009-1 Noteholder over (ii) the Series 2009-1
Principal Balance of the Series 2009-1 Note owned by such Series 2009-1
Noteholder as of such date of determination, such principal balance to be
measured after giving effect to all Series 2009-1 Advances made and all
principal payments to be received by such Series 2009-1 Noteholder on such
date of determination.


 


(b)           All other
capitalized terms used herein and not otherwise defined shall have the meaning
set forth in Appendix A to the Indenture, as such Appendix A may be amended,
supplemented or otherwise modified from time to time in accordance with the
provisions of the Indenture.  The rules of
usage set forth in such Appendix A shall apply to this supplement.


 


“WBNA” means Wachovia Bank, N.A.


 


ARTICLE II


 


Creation
of the Series 2009-1 Notes; Modification of Indenture


 


Section 201.           Designation
and Principal Terms.(a) (a)  There
is hereby created a Series of Notes to be issued in one Class pursuant
to the Indenture and this Supplement to be known respectively as “TAL Advantage
III LLC Series 2009-1 Floating Rate Secured Notes”.  The Series 2009-1 Notes will initially
be issued in the initial aggregate maximum principal


 


6

















 


balance of up to Seventy-Five Million Dollars ($75,000,000).  The Series 2009-1 Notes will not have
priority over any Series, except to the extent set forth in the Indenture or in
the Supplement for such other Series. 
The Series 2009-1 Notes are designated as a Series of
Warehouse Notes.


 


(b)           The Payment
Date with respect to the Series 2009-1 Notes shall be the twentieth (20th) day of each month,
commencing January 20, 2010 or, if such day is not a Business Day, the
immediately following Business Day (each a “Payment Date”).


 


(c)           Payments
of principal and interest on the Series 2009-1 Notes shall be payable from
funds on deposit in the Series 2009-1 Series Account or otherwise at
the times and in the amounts set forth in Article III of the Indenture and
Article III hereof.


 


(d)           The
Series 2009-1 Interest Payment and the Commitment Fee shall constitute “Priority
Payments” for Series 2009-1 as such term is defined in the Indenture.


 


(e)           All
of the Early Amortization Events set forth in Article XII of the Indenture
are applicable to Series 2009-1. 
All of the Events of Default set forth in Section 801 of the
Indenture are applicable to Series 2009-1.


 


(f)            The
“Initial Commitment” for Series 2009-1, as such term is referred to in the
Indenture, shall mean the Series 2009-1 Note Initial Commitment.


 


(g)           The
“Commitment” for Series 2009-1, as such term is referred to in the
Indenture, shall mean the Series 2009-1 Note Existing Commitment.


 


(h)           In
the event that any term or provision contained herein shall conflict with or be
inconsistent with any term or provision contained in the Indenture, the terms
and provisions of this Supplement shall govern.


 


(i)            The “Expected
Final Maturity Date” for Series 2009-1, as such term is referred to in the
Indenture, shall mean the Series 2009-1 Expected Final Maturity Date.


 


(j)            The “Legal
Final Maturity Date” for Series 2009-1, as such term is referred to in the
Indenture, shall mean the Series 2009-1 Legal Final Maturity Date.


 


(k)           For purposes of
the Indenture, only the Series 2009-1 Interest Payment and the Commitment
Fee shall be a Priority Payment.  For
purposes of Section 801(1)(A) of the Indenture, the Series 2009-1
Interest Payment will be due and payable on each Payment Date.


 


(l)            The Series 2009-1
Notes have not been rated by a Rating Agency as of the Closing Date.
Accordingly, any provision of the Series 2009-1 Transaction Documents
requiring notification of, or providing notices to, the Rating Agencies shall
not be applicable to Series 2009-1 Notes until such time (if any) a Rating
Agency has assigned a rating to the Series 2009-1 Notes.


 


7














 


Section 202.           Authentication and Delivery.


 


(a)           Execution
and Delivery.  On the Closing Date,
the Issuer shall sign, and shall direct the Indenture Trustee in writing
pursuant to Section 201 of the Indenture to duly authenticate, and the
Indenture Trustee, upon receiving such direction, (i) shall authenticate
(by manual or facsimile signature), subject to compliance with the conditions
precedent set forth in Section 501 hereof and the Series 2009-1 Note
Purchase Agreement, the Series 2009-1 Notes in accordance with such
written directions, and (ii) subject to compliance with the conditions
precedent set forth in Section 501 hereof and the Series 2009-1 Note
Purchase Agreement, shall deliver such Series 2009-1 Notes to the
Noteholders in accordance with such written directions.


 


(b)           Definitive
Notes.  In accordance with Section 202
of the Indenture, the Series 2009-1 Notes shall be represented by one or
more Definitive Notes.


 


(c)           Original
or Facsimile Signatures.  The Series 2009-1
Notes shall be executed by manual or facsimile signature on behalf of the
Issuer by any authorized officer or manager of the Issuer and shall be
substantially in the form of Exhibit A hereto.


 


(d)           Minimum
Denominations.  The Series 2009-1
Notes shall be issued in minimum denominations of $100,000 and in integral
multiples of $100,000 in excess thereof.


 


(e)           Restrictions on
Transfer of Series 2009-1 Notes.  Notwithstanding the provisions of Section 205
of the Indenture (except for Section 205(l) thereof), each Series 2009-1
Noteholder may sell, transfer or assign its Series 2009-1 Note(s) provided
that (i) such Series 2009-1 Noteholder must obtain the Issuer’s prior
written consent authorizing such Series 2009-1 Noteholder to contact a
proposed purchaser, transferee or assignee (unless such proposed purchaser,
transferee or assignee is an Eligible Assignee), which consent shall not be
unreasonably withheld or delayed; (ii) unless such proposed purchaser,
transferee or assignee is an Eligible Assignee, such Series 2009-1
Noteholder must obtain the Issuer’s prior written consent to consummate such
sale, transfer or assignment; (iii) the Issuer receives a fully executed
Investment Letter from such Series 2009-1 Noteholder and the applicable
purchaser, transferee or assignee; (iv) such sale, transfer or assignment
will not result in any increased costs to the Issuer without its written
consent; and (v) such sale, transfer or assignment is not to a
Competitor.  The provisions of this Section 205(e) may
be modified in a written agreement between the Issuer and the Indenture
Trustee.


 


Section 203.           Interest and Other Payments on the Series 2009-1
Notes.


 


(a)           Interest
on Series 2009-1 Notes. 
Interest will be owing on the Series 2009-1 Notes in an amount
equal to the Series 2009-1 Interest Payment, which shall be payable on
each Payment Date from amounts on deposit in the Series 2009-1 Series Account
in accordance with Section 302 hereof including the priority of payments
set forth therein.


 


(b)           Interest
on Overdue Amounts.  If the Issuer
shall default in the payment of (i) the unpaid principal balance of any Series 2009-1
Notes on the Series 2009-1 Legal Final Maturity Date, (ii) the Series 2009-1
Payment on any Series 2009-1 Note when due, or (iii) following the
acceleration of the Series 2009-1 Notes in accordance with the terms of
the Indenture or any other amount owing under the Indenture not covered in
clauses (i) and (ii) which is not paid when due, the Issuer shall,
from time to time, pay interest on such unpaid 


 


8

















 


amounts, to the extent permitted by Applicable Law, to, but not
including, the date of actual payment (after as well as before judgment), at a
rate per annum equal to the Default Rate, for the period during which such
principal, interest or other amount shall be unpaid from the due date of such
payment to but not including the date of actual payment thereof.  All Default Fees shall be payable at the
times and subject to the priorities set forth in Section 302 hereof.


 


(c)           Maximum
Interest Rate.  In no event shall the
interest charged with respect to a Series 2009-1 Note exceed the maximum
amount permitted by Applicable Law.  If
at any time the interest rate charged with respect to the Series 2009-1
Notes exceeds the maximum rate permitted by Applicable Law, the rate of
interest to accrue pursuant to this Supplement and such Series 2009-1 Note
shall be limited to the maximum rate permitted by Applicable Law.


 


Section 204.           Principal Payments on the Series 2009-1
Notes; Scheduled Amortization of Series 2009-1 Notes.


 


(a)           The
principal balance of the Series 2009-1 Notes shall be payable on each
Payment Date from amounts on deposit in the Series 2009-1 Series Account
in an amount equal to (i) so long as no Early Amortization Event is continuing,
the Minimum Principal Payment Amount and the allocable portion of the
Supplemental Principal Payment Amount (if any) for such Series 2009-1 Note
for such Payment Date, to the extent that funds are available for such purpose
in accordance with the provisions of part I of Section 302 hereof, or (ii) if
an Early Amortization Event is then continuing, the Minimum Principal Payment
Amount and then unpaid Series 2009-1 Principal Balance of such Series 2009-1
Note shall be payable in full to the extent that funds are available for such
purposes in accordance with the provisions of part (II) of Section 302
hereof.  Payment of the Supplemental
Principal Payment Amount on each Payment Date is subordinated to payment in
full on such Payment Date of the Minimum Principal Payment Amount for the Series 2009-1
Notes.  The unpaid principal amount of
each Series 2009-1 Note, together with all unpaid interest (including all
Default Fees), fees (including all Commitment Fees), expenses, costs and other
amounts payable by the Issuer to the Series 2009-1 Noteholders and the
Indenture Trustee pursuant to the terms of the Indenture and this Supplement,
shall be due and payable in full on the earlier to occur of (x) the date
on which an Event of Default shall occur and the Series 2009-1 Notes have
been accelerated in accordance with Section 802 of the Indenture and (y) the
Series 2009-1 Legal Final Maturity Date.


 


(b)           The
Issuer may, on any Payment Date and upon four (4) Business Days’ prior
notice to the Series 2009-1 Noteholders in accordance with the terms of Section 8.2
of the Series 2009-1 Note Purchase Agreement, voluntarily prepay all, or
any part, of the Series 2009-1 Principal Balance by making a wire transfer
to the Series 2009-1 Noteholders; provided,
however, that the Issuer may not
make such repayment from funds in the Trust Account, the Series 2009-1 Series Account
or the Restricted Cash Account except to the extent that funds in any such
account would otherwise be payable to the Issuer or available to prepay the Aggregate
Series 2009-1 Principal Balance in accordance with the terms of this
Supplement or the Indenture; provided, further,
that any such prepayment shall be in a minimum amount of the lesser of (x) Two
Hundred Fifty Thousand Dollars ($250,000) and (y) the then Aggregate Series 2009-1
Principal Balance.  In the
event of any Prepayment of the Notes in accordance with this Section 204(b) or
any other provision of the Indenture, the Issuer shall pay, if such Prepayment
is 


 


9

















 


made on a date other than a Payment Date, any Breakage Costs incurred
by the Series 2009-1 Noteholders in connection with such prepayment.


 


(c)           Any Prepayment
of less than the entire Aggregate Series 2009-1 Principal Balance made in
accordance with the provisions of Section 204(a) or 204(b) hereof
on or after the Conversion Date shall be applied as set forth in Section 702(c) of
the Indenture to the same extent as if the Series 2009-1 Notes were a Series of
Term Notes.


 


Section 205.           Amounts and Terms of Series 2009-1
Noteholder Commitments.


 


(a)           Commitments.  Subject to the terms and conditions of this
Supplement and the Series 2009-1 Note Purchase Agreement, each Series 2009-1
Noteholder shall make its Percentage of the Series 2009-1 Note Initial
Commitment available to the Issuer on the Closing Date.


 


(b)           Advances.  Prior to the Conversion Date, each Series 2009-1
Note shall be a revolving note with a maximum principal amount equal to the Series 2009-1
Note Existing Commitment then in effect for the related Series 2009-1
Noteholder.  The Administrative Agent and
each Series 2009-1 Noteholder shall maintain a record of all Series 2009-1
Advances and repayments made on the Series 2009-1 Notes and absent
manifest error such records shall be conclusive.  Each request for a Series 2009-1 Advance
shall be submitted in writing to the Administrative Agent by not later than
1:00 p.m. (New York City time) on the third (3rd) Business Day prior to the date of the requested
advance and shall be irrevocable when given. 
Such notice shall include a calculation of the aggregate Series 2009-1
Advance to be funded by the Series 2009-1 Noteholders.  The Administrative Agent shall promptly
forward any such Funding Notice, with the attached Asset Base Certificate, to
each Series 2009-1 Noteholder or its designee.  On any Business Day requested by the Issuer,
and presuming that the Issuer shall have satisfied all applicable conditions
precedent set forth in Article V hereof, the Series 2009-1
Noteholders shall, subject to the terms and conditions of this Supplement and
the Series 2009-1 Note Purchase Agreement, deposit into the account
designated by the Issuer by wire transfer of same day funds not later than 1:00 p.m.
(New York City time) an amount equal to its Percentage of the requested Series 2009-1
Advance; provided, however, that each Series 2009-1
Advance by each Series 2009-1 Noteholder shall be for: (I) a minimum
amount of the lesser of (x) its then unused Series 2009-1 Note
Existing Commitment and (y) such Series 2009-1 Noteholder’s
Percentage of one million Dollars ($1,000,000) or an integral multiple of
One Hundred Thousand Dollars ($100,000) in excess thereof; and (II) a
maximum amount of the Availability of such Series 2009-1 Noteholder on
such Business Day.  In the event that any
Series 2009-1 Noteholder fails to make a Series 2009-1 Advance in
accordance with its Series 2009-1 Note Existing Commitment, the other Series 2009-1
Noteholder(s) may but shall not be obligated to fund the Percentage of the
defaulted Series 2009-1 Noteholder(s).


 


Each request for a Series 2009-1 Advance shall constitute a
reaffirmation by the Issuer that (1) no Event of Default or Early
Amortization Event has occurred and is continuing, (2) all of the
conditions precedent set forth in Article V hereof have been satisfied and
(3) except for any divergences previously disclosed in writing to the
Indenture Trustee and consented to in writing by the Administrative Agent, the
representations and warranties made by the Issuer to the Holders of Series 2009-1
Notes contained in the Series 2009-1 Transaction Documents are true, 


 


10

















 


correct and complete in all material respects
to the same extent as though made on and as of the date of the request, except
to the extent such representations and warranties specifically relate to an
earlier date, in which event they shall be true, correct and complete in all
material respects as of such earlier date.


 


If (i) any Series 2009-1 Advance requested by the Issuer is
not, for any reason whatsoever related to a default or nonperformance by the
Issuer, made or effectuated on the date specified therefor or (ii) any
optional prepayment of the Series 2009-1 Notes is not made when specified
in the notice delivered pursuant to Section 204(b) hereof, then, in
either such case, the Issuer shall indemnify each Series 2009-1 Noteholder
against any Breakage Costs relating thereto.


 


(c)           Commitment
Fee.  On each Payment Date, the
Issuer shall pay a commitment fee (the “Commitment Fee”) to each Series 2009-1
Noteholder in an amount equal to the sum for each day during the immediately
preceding Collection Period of the product of (x) the applicable
Commitment Fee Percentage on such day, (y) a fraction (expressed as
percentage) the numerator of which is one and the denominator of which is equal
to 360 and (z) the Series 2009-1 Unused Commitment of such Series 2009-1
Noteholder on such day.  Such Commitment
Fee shall be payable from amounts then on deposit in the Series 2009-1 Series Account,
or amounts otherwise available for such purpose, in accordance with Section 302
hereof.


 


(d)           Optional
Increase in Series 2009-1 Note Existing Commitments.  The Issuer may, by means of a letter
delivered to Administrative Agent and the Indenture Trustee (with a copy to
each Interest Rate Hedge Counterparty) on not more than five (5) occasions
prior to the Conversion Date, request that the aggregate Series 2009-1
Note Existing Commitments be increased by an aggregate amount not to exceed
Seventy Million Dollars ($70,000,000), by (a) increasing the commitment of
one or more then existing Series 2009-1 Noteholders that have agreed to
such increase and/or (b) by issuing additional Series 2009-1 Notes to
adding one or more commercial banks, finance companies or other Persons
acceptable to the Issuer (each an “Additional Series 2009-1 Noteholder”)
with a Series 2009-1 Note Existing Commitment in an amount agreed to by
any such Additional Series 2009-1 Noteholder.  Any such increase in the aggregate Series 2009-1
Note Existing Commitment made in accordance with this Section 205(d) shall
be effective three Business Days after the date on which Issuer has delivered
to the Administrative Agent and the Indenture Trustee the Increase Letter (as
such term is defined in the Series 2009-1 Note Purchase Agreement) (in the
case of an increase in the Commitments of an existing Series 2009-1
Noteholder) or Related Group Additional Notice (as such term is defined in the Series 2009-1
Note Purchase Agreement) (in the case of the addition of an Additional  Series 2009-1 Noteholders).  If the Issuer pays or agrees to pay to any Series 2009-1
Noteholder or Additional Series 2009-1 Noteholder, any increased
Commitment Fee and/or Applicable Margin, then the terms of this Supplement
shall automatically be amended with the effect that the amount of such
increased Commitment Fee and/or Applicable Margin shall be payable on a
prospective basis  to all then existing Series 2009-1
Noteholders.


 


Section 206.           Taxes.


 


(a)           Subject to
clause (g) below, in addition to payments of principal and interest on the
Series  2009-1 Notes when due, the Issuer shall pay, but only in
accordance with 


 


11

















 


the priorities for distributions set forth in Section 302 hereof,
each Series 2009-1 Noteholder (an “Indemnified Party”) any and all present
or future taxes, fees, duties, levies, imposts, or charges, or any other
similar deduction or withholding, whatsoever imposed by any Governmental
Authority, and all liabilities with respect thereto, excluding (i) franchise
taxes, (ii) such taxes as are imposed on or measured by or determined (in
whole or in part) by reference to each Indemnified Party’s net income by the
jurisdiction under the laws of which such Indemnified Party, as the case may be
(regardless of whether such tax is denominated as an “income tax” under
applicable local law), is organized or maintains an office or any political
subdivision thereof, (iii) any other taxes, fees, duties, levies, imports,
or charges, whether payable directly by the Series 2009-1 Noteholder or by
deduction or withholding from any payment made in respect of a Series 2009-1
Note, on account of a connection, whether present or former, between the Series 2009-1
Noteholder and the relevant taxing jurisdiction and (iv) withholding taxes
imposed on any payment in respect of a Series 2009-1 Note other than on
account of a change in law or regulation occurring after the Person in respect
of which such tax is imposed acquired a beneficial interest in a Series 2009-1
Note (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities being hereinafter referred to as “Taxes”).


 


(b)           In addition
subject to clause (g) below, the Issuer shall pay, but only in accordance
with the priorities for distribution set forth in Section 302 hereof, any
present or future stamp or documentary taxes or any other similar excise or
property taxes, charges or similar levies which arise from any payment made
hereunder or from the execution, delivery or registration of, or otherwise with
respect to, this Supplement or any other Series 2009-1 Transaction
Document (hereinafter referred to as “Other Taxes”).


 


(c)           Subject to
clause (g) below, if any Taxes or Other Taxes are directly asserted or
imposed against any Indemnified Party, the Issuer shall indemnify and hold
harmless such Indemnified Party, but only in accordance with the priorities for
distribution set forth in Section 302 hereof, for the full amount of the
Taxes or Other Taxes (including any Taxes or Other Taxes asserted or imposed by
any jurisdiction on amounts payable under this Section 206) paid by the
Indemnified Party and any liability (including penalties, interest, additions
to tax and expenses) arising therefrom or with respect thereto, whether or not
such Taxes or Other Taxes were correctly or legally asserted or imposed. If the
Issuer fails to pay any Taxes or Other Taxes when due to the appropriate taxing
authority or fails to remit to the Indemnified Party the required receipts or
other required documentary evidence, the Issuer shall indemnify the Indemnified
Party for any incremental Taxes or Other Taxes, interest or penalties that may
become payable by the Indemnified Party as a result of any such failure.
Payment under this indemnification shall be made in accordance with the payment
priorities set forth in Section 302 hereof after the Indemnified Party
makes written demand therefor.  Each
Indemnified Party shall give prompt notice to the Issuer of any assertion of
Taxes or Other Taxes so that the Issuer may, at its option, contest such
assertion.


 


(d)           Within thirty
(30) days after the date of any payment by the Issuer of Taxes or Other Taxes,
the Issuer shall furnish to the affected Indemnified Party the original (or a
certified copy) of a receipt evidencing payment thereof, or other evidence of
payment thereof satisfactory to such Indemnified Party.


 


12

















 


(e)           Taxes, Other
Taxes and other indemnification payments owing pursuant to the provisions of
this Section 206 shall not constitute a “claim” (as defined in Section 101(5) of
the Bankruptcy Code) against the Issuer in the event there are insufficient
funds available to make such payments in accordance with the payment priority
set forth in Section 302 hereof.


 


(f)            If an
Indemnified Party is not a “United States person” as defined in section
7701(a)(30) of the Internal Revenue Code of 1986, as amended, such Indemnified
Party shall deliver to the Issuer, with a copy to the Administrative Agent and
the Manager, within 15 days after the Closing Date, or, if such Indemnified
Party becomes an Indemnified Party after the Closing Date, the date on which
such Indemnified Party becomes an Indemnified Party hereunder:  (i) two (or such other number as may
from time to time be prescribed by Applicable Laws) duly completed copies of (A) IRS
Form W-8BEN claiming eligibility of the Indemnified Party for benefits of
an income tax treaty to which the United States is a party or (B) IRS Form W-8ECI
(or any successor forms or other certificates or statements that may be
required from time to time by the relevant United States taxing authorities or
Applicable Laws) or (ii) in the case of an Indemnified Party that is not
legally entitled to deliver either form listed in clause (f)(i), (A) a
certificate of a duly authorized officer of such Indemnified Party to the
effect that such Indemnified Party is not (x) a “bank” within the meaning
of Section 881(c)(3)(A) of the Code, (y) a “10 percent
shareholder” of the Issuer within the meaning of Section 881(c)(3)(B) of
the Code, or (z) a controlled foreign corporation receiving interest from
a related person  within the meaning of Section 881(c)(3)(C) of
the Code (such certificate, an “Exemption Certificate”) and (B) two duly
completed copies of IRS Form W-8BEN or applicable successor form
certifying the foreign status of such Indemnified Party, as appropriate, to
permit the Issuer to make payments hereunder for the account of such
Indemnified Party, without deduction or withholding of United States federal
income or similar Taxes.  Each other
Indemnified Party agrees to deliver to the Issuer, with a copy to the
Administrative Agent and the Manager, within 15 days after the Closing Date,
or, if such Indemnified Party becomes an Indemnified Party after the Closing
Date, the date on which such Indemnified Party becomes an Indemnified Party
hereunder, one or more accurate and complete original signed copies (as the
Issuer, Administrative Agent or Manager may reasonably request) of IRS Form W-9
or successor applicable form (if required by law), as the case may be,
providing the employer identification number for such Indemnified Party.  Additionally, upon the obsolescence of, or
after the occurrence of any event requiring a change in, any form or
certificate previously delivered by an Indemnified Party pursuant to this Section 206(f),
such Indemnified Party shall deliver such forms, amended or successor forms,
certificates or statements as may be required under Applicable Laws to permit
the Issuer to make payments hereunder for the account of such Indemnified
Party, without deduction or withholding of United States federal income or
similar Taxes.


 


(g)           The Issuer
shall not be obligated to pay any additional amounts to any Indemnified Party
pursuant to clause (a), or to indemnify any Indemnified Party pursuant to
clause (c), in respect of United States federal withholding taxes to the extent
imposed as a result of (i) the failure of such Indemnified Party to
deliver to the Issuer any form and/or Exemption Certificate pursuant to clause
(f), (ii) such form not establishing a complete exemption from U.S.
federal withholding tax or the information or certifications made therein by
the Indemnified Party being untrue or inaccurate on the date delivered in any
material respect, or (iii) the Indemnified Party designating a successor
office at which it maintains the Series 2009-1 Notes 


 


13

















 


which has the effect of causing such Indemnified Party to become
obligated for tax payments in excess of those in effect immediately prior to
such designation; provided, however, that the Issuer shall be obligated to pay
additional amounts to any such Indemnified Party pursuant to clause (a), and to
indemnify any such Indemnified Party pursuant to clause (c), in respect of
United States federal withholding taxes if (i) any such failure to deliver
a form and/or Exemption Certificate or the failure of such form to establish a
complete exemption from U.S. federal withholding tax or inaccuracy or untruth
contained therein resulted from a change in any applicable law or regulation
occurring after the date the Person in respect of which such tax is imposed
acquired a beneficial interest in a Series 2009-1 Note, which change
rendered such Indemnified Party no longer legally entitled to deliver any such
form or otherwise ineligible for a complete exemption from U.S. federal
withholding tax, or rendered the information or certifications made in such
form untrue or inaccurate in a material respect or (ii) the redesignation
of the Indemnified Party’s office for maintenance of the Series 2009-1
Notes was made at the request of the Issuer.


 


(h)           Any Indemnified
Party that becomes entitled to the payment of additional amounts pursuant to Section 206(a) shall
use reasonable efforts (consistent with applicable law) to file any document
reasonably requested by the Issuer or to transfer its interest in the Series 2009-1
Note to an Affiliate in another jurisdiction if the making of such a filing or
transfer to an Affiliate, as the case may be, would avoid the need for or
reduce the amount of any payment of such additional amounts that may thereafter
accrue and would not, in the good faith determination of such Indemnified
Party, be disadvantageous to it.


 


(i)            If an
Indemnified Party receives any refund or is entitled to a Tax credit with
respect to Taxes for which the Issuer has paid any additional amounts pursuant
to Section 206(a) or Section 206(b) or made an indemnity
payment pursuant to Section 206(c), then such Indemnified Party shall
promptly pay the Issuer the portion of such refund or credit and any interest
received with respect thereto as it determines, in its reasonable, good faith
judgment will leave it after such payment, in no better or worse financial
position than it would have been absent the imposition of such Taxes and the
payment by the Issuer of such indemnity or additional amounts pursuant to this Section 206;
provided, however, that (i) the Issuer agrees to promptly return any
amount paid to the Issuer pursuant to this Section 206(i) upon notice
from such Indemnified Party that such refund or any portion thereof is required
to be repaid to the relevant taxing authority, (ii) nothing in this Section 206(i) shall
require an Indemnified Party to disclose any confidential information to the
Issuer (including, without limitation, its tax returns), and (iii) no
Indemnified Party shall be required to pay any amounts pursuant to this Section 206(i) at
any time which an Event of Default exists and is continuing.


 


(j)            If the Issuer
determines in good faith that a reasonable basis exists for contesting any
Taxes for which additional amounts have been paid pursuant to Section 206(a) or
Section 206(b) or an indemnity payment has been made pursuant to Section 206(c),
the Indemnified Party (to the extent such Person reasonably determines in good
faith that it will not suffer a material adverse effect as a result thereof)
shall cooperate with the Issuer in challenging such Taxes, at the Issuer’s
expense, if so requested by the Issuer in writing.


 


Section 207.           Increased Costs. 
If either (i) the introduction of or any change (including, without
limitation, any change by way of imposition or increase of reserve 


 


14

















 


requirements) after the Closing Date in or in
the interpretation of any law or regulation (including any law or regulation of
any accounting board or authority (whether or not a part of the government)
which is responsible for the establishment or interpretation of national or
international accounting principles, in each case foreign or domestic) or (ii) the
compliance by an Indemnified Party with any guideline or request promulgated or
made after the Closing Date from any central bank or other Governmental
Authority (whether or not having the force of law), shall (A) impose,
modify or deem applicable any reserve requirement (including, without
limitation, any reserve requirement imposed by the Federal Reserve Board, but
excluding any reserve requirement, if any, included in the determination of the
Adjusted Eurodollar Rate), special deposit or similar requirement against
assets of, deposits with or for the amount of, or credit extended by, any
Indemnified Party, or (B) impose any other condition affecting the
commitments or rights of an Indemnified Party under any Series 2009-1
Transaction Document, the result of which is to increase the cost to such
Indemnified Party or to reduce the amount of any sum received or receivable by
an Indemnified Party under any Series 2009-1 Transaction Document, then,
within ten (10) days after demand by such Indemnified Party (which demand
shall be accompanied by a statement setting forth the basis for such demand),
the Issuer shall pay directly to such affected Indemnified Party such
additional amount or amounts as will compensate such Indemnified Party for such
additional or increased cost incurred or such reduction suffered but only in
accordance with the payment priority set forth in Section 302 hereof.  In determining any amount provided for in
this Section 207, the Indemnified Party may use any reasonable averaging
and attribution methods.  Any Indemnified
Party making a claim under this section shall submit to the Issuer and the
Manager a written description as to such additional or increased cost or
reduction and the calculation thereof, which written description shall be
conclusive absent demonstrable error. Prior to making any claim pursuant to the
provisions of this Section 207, the affected Indemnified Party will use
reasonable efforts to mitigate or eliminate the amount of such Increased Cost
or reduced amount if such mitigation effects are not, in the judgment of the
affected Indemnified Party, illegal or otherwise disadvantageous to such
Indemnified Party.


 


Payments owing pursuant to the provisions of this Section 207
shall be made only in accordance with the priorities for distributions set
forth in Section 302 hereof. Increased Costs and other amounts owed pursuant
to this Section 207 shall not constitute a “claim” (as defined in Section 101(5) of
the Bankruptcy Code) against the Issuer in the event that there are
insufficient funds available to meet such payments in accordance with Section 302
hereof.


 


The failure or delay on the part of any Indemnified Party to demand
compensation for any Increased Costs shall not constitute a waiver of such Series 2009-1
Noteholder’s right to demand such compensation; provided, that the Issuer shall
not be under any obligation to compensate any Indemnified Party under this Section 207
for any Increased Costs and other amounts owed pursuant to this Section 207
with respect to any period prior to the date that is 120 days prior to such
request if such Indemnified Party knew of the circumstances giving rise to such
Increased Costs and other amounts owed pursuant to this Section 207 and of
the fact that such circumstances would result in a claim for increased
compensation by reason of such Increased Costs and other amounts owed pursuant
to this Section 207.


 


15

















 


Section 208.           Capital Requirements.


 


If any Indemnified Party shall determine that (i) any change after
the Closing Date in any law, rule, regulation or guideline adopted pursuant to
or arising out of the July 1988 report of the Basel Committee on Banking
Regulations and Supervisory Practices entitled “International Convergence of
Capital Measurement and Capital Standards”, or (ii) the adoption after the
date hereof of any other law or requirement of law regarding capital adequacy,
including the proposed “The New Basel Capital Accord”, or (iii) any change
after the Closing Date in any of the foregoing or in the enforcement or
interpretation or administration of any of the foregoing by any Governmental
Authority charged with the enforcement or interpretation or administration
thereof, or (iv) compliance by any Indemnified Party (or any business
office of the Indemnified Party) or the Indemnified Party’s holding company
with any request or directive regarding capital adequacy of any Governmental
Authority, has or would have the effect of reducing the rate of return on the
Indemnified Party’s capital or on the capital of the Indemnified Party’s
holding company, to a level below that which the Indemnified Party or the
Indemnified Party’s holding company could have achieved, in each case but for
such adoption, change or compliance (taking into consideration the Indemnified
Party’s policies and the policies of the Indemnified Party’s holding company
with respect to capital adequacy) by an amount reasonably deemed by the
Indemnified Party to be material, then,
within (10) ten days after written demand for the payment thereof, then
the Issuer will pay to the affected Indemnified Party such additional amount or
amounts as will compensate the Indemnified Party or the Indemnified Party’s
holding company for any such reduction suffered. Payment under this
indemnification shall be made only in accordance with the priorities for
distributions set forth in Section 302 hereof after the Indemnified Party
makes written demand therefor. Indemnification amounts contemplated by this Section shall
not constitute a “claim” (as defined in Section 101(5) of the
Bankruptcy Code) against the Issuer in the event there are insufficient funds
available to make such payments on a Payment Date under Section 302
hereof. Without affecting its rights under this Section 208 or any other
provision of this Supplement, each Indemnified Party agrees that if there is a
reduction in a rate of return with respect to which the Issuer would be
obligated to compensate the Indemnified Party pursuant to this Section 208,
the Indemnified Party shall use reasonable efforts to select an alternative
business office which would not result in any reduction in rate of return
contemplated by this Section; provided, however,
that the Indemnified Party shall not be obligated to select an alternative
business office if the Indemnified Party determines that (i) as a result
of such selection the Indemnified Party would be in violation of any Applicable
Law, or would incur additional costs or expenses, or (ii) such selection
would be unavailable for regulatory reasons or (iii) such selection would
otherwise be illegal or disadvantageous to such Indemnified Party.


 


The failure or delay on the part of any Indemnified Party to demand
compensation for any reduction in amounts received or receivable or reduction
in return on capital shall not constitute a waiver of such Series 2009-1
Noteholder’s right to demand such compensation; provided, that the Issuer shall
not be under any obligation to compensate any Indemnified Party under this Section 208
for any reductions with respect to any period prior to the date that is 120
days prior to such request if such Indemnified Party knew of the circumstances
giving rise to such reductions and of the fact that such circumstances would
result in a claim for increased compensation by reason of such reductions.


 


16

















 


Section 209.           Replacement
of Series 2009-1 Noteholder.


 


In the event (i) any Series 2009-1 Noteholder (or any
Indemnified Party with respect to any Series 2009-1 Noteholder) delivers a
certificate requesting compensation pursuant to Section 206 or  Section 207 or Section 208 hereof, (ii) the
Issuer is required to pay any additional amount to any Series 2009-1
Noteholder (or any Indemnified Party with respect to any Series 2009-1
Noteholder) or any Governmental Authority on account of any Series 2009-1
Noteholder (or any Indemnified Party with respect to any Series 2009-1
Noteholder) pursuant to Section 206 or (iii) any Series 2009-1
Noteholder does not consent (or fails to respond) to a proposed amendment,
modification or waiver to any provision of this Supplement or any other
Transaction Document requested by the Issuer (and the Issuer has satisfied all
other conditions precedent to such amendment or waiver but for receiving the
consent of such Series 2009-1 Noteholder), the Issuer may, at its sole
expense and effort, upon notice to such Series 2009-1 Noteholder, require
such Series 2009-1 Noteholder to transfer and assign, without recourse (in
accordance with and subject to the restrictions contained in the Indenture),
all of its interests, rights and obligations under this Supplement and the
other Transaction Documents to an assignee that shall assume such assigned
obligations (which assignee may be another Series 2009-1 Noteholder, if a Series 2009-1
Noteholder accepts such assignment); provided that:


 


(i)            such
Series 2009-1 Noteholder shall have received payment of an amount equal to
the outstanding principal of its Series 2009-1 Note, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder and under
the other Transaction Documents from the Issuer or the assignee (to the extent
of such outstanding principal and accrued interest and fees) or the Issuer (in
the case of all other amounts);


 


(ii)           in
the case of any such assignment resulting from a claim for compensation under Section 207
or 208 or payments required to be made pursuant to Section 206, such
assignment will result in a reduction in such compensation or payments
thereafter; and


 


(iii)          such
assignment does not conflict with Applicable Law.


 


ARTICLE III


 


Series 2009-1
Series Account and

Allocation and Application of Amounts Therein


 


Section 301.           Series 2009-1
Series Account.  The Issuer
shall establish on the Closing Date and maintain, so long as any Series 2009-1
Note is Outstanding, an Eligible Account in the name of the Issuer with the
Indenture Trustee which shall be designated as the Series 2009-1 Series Account,
which account shall be pledged to the Indenture Trustee pursuant to the
Indenture for the benefit of the Series 2009-1 Noteholders and any Hedge
Counterparty.  The Series 2009-1 Series Account
shall only be relocated to another financial institution in accordance with the
express provisions of Section 303(d) of the Indenture.  All deposits of funds by, or for the benefit
of, the Series 2009-1 Noteholders from the Trust Account and the


 


17














 


Restricted
Cash Account, shall be accumulated in, and withdrawn from, the Series 2009-1
Series Account in accordance with the provisions of the Indenture and this
Supplement.


 


Section 302.           Distributions
from Series 2009-1 Series Account.  On each
Payment Date, the Indenture Trustee shall distribute funds then on deposit in
the Series 2009-1 Series Account in accordance with the provisions of
one of subsection (I), (II) and (III) of this Section 302
pursuant to the instructions set forth in each Manager Report.


 


(I)            If
no Early Amortization Event nor an Event of Default shall have occurred and be
continuing:


 


(a)       To each Series 2009-1 Noteholder on the
immediately preceding Record Date, an amount equal to its pro rata portion of the Series 2009-1
Interest Payment for such Payment Date;


 


(b)       To each Series 2009-1 Noteholder on the
immediately preceding Record Date, an amount equal to its pro rata portion of the Commitment Fee for
such Payment Date;


 


(c)       To each Series 2009-1 Noteholder on the
immediately preceding Record Date, an amount equal to its pro rata portion (if any) of the Minimum
Principal Payment Amount then due and payable to Series 2009-1 Noteholders
on such Payment Date;


 


(d)       To each Series 2009-1 Noteholder on the
immediately preceding Record Date, an amount equal to its pro rata
portion (if any) of the Supplemental Principal Payment Amount then due and
payable to Series 2009-1 Noteholders on such Payment Date, until the
Aggregate Series 2009-1 Note Principal Balance has been reduced to zero;


 


(e)       To each Series 2009-1 Noteholder on the
immediately preceding Record Date and each other Indemnified Party, pro rata, an amount equal to any Indemnity Amounts, Default
Fees and any other amounts then due and payable to such Series 2009-1
Noteholders and each other Indemnified Party pursuant to the Series 2009-1
Transaction Documents; and


 


(f)        After application of the amounts required to be paid
pursuant to Section 302 of the Indenture, to the Issuer or its assigns,
any remaining amounts then on deposit in the Series 2009-1 Series Account.


 


(II)           If
an Early Amortization Event shall have occurred and then be continuing with
respect to any Series but no Event of Default shall have occurred and be
continuing with respect to any Series (or an Event of Default has occurred
but the Notes have not been accelerated in accordance with Section 802 of
the Indenture):


 


(a)       To each Series 2009-1 Noteholder on the
immediately preceding Record Date, an amount equal to its pro rata portion of the Series 2009-1
Interest Payment for such Payment Date;


 


18

















 


(b)       To each Series 2009-1 Noteholder on the
immediately preceding Record Date, an amount equal to its pro rata portion of the Commitment Fee for
such Payment Date;


 


(c)       To each Series 2009-1 Noteholder on the
immediately preceding Record Date, an amount equal to its pro rata portion (if any) of the Minimum
Principal Payment Amount then due and payable to Series 2009-1 Noteholders
on such Payment Date;


 


(g)       To each Series 2009-1 Noteholder on the
immediately preceding Record Date, an amount equal to its pro rata
portion of the then Aggregate Series 2009-1 Principal Balance until the
Aggregate Series 2009-1 Principal Balance has been reduced to zero;


 


(d)       To each Series 2009-1 Noteholder on the
immediately preceding Record Date, pro rata (based
on respective amounts due), an amount equal to any Indemnity Amounts and
Default Fees and any other amounts then due and payable by the Issuer to the Series 2009-1
Noteholders pursuant to the Series 2009-1 Transaction Documents; and


 


(e)       After application of the amounts required to be paid
pursuant to Section 302 of the Indenture, to the Issuer or its assigns,
any remaining amounts then on deposit in the Series 2009-1 Series Account.


 


(III)         If
an Event of Default shall then be continuing with respect to any Series and
the Notes of any Series have been declared due and payable and such
declaration and its consequences have not been rescinded or annulled:


 


(a)       To each Series 2009-1 Noteholder on the
immediately preceding Record Date, an amount equal to its pro rata portion of the Series 2009-1
Interest Payment for such Payment Date;


 


(b)       To each Series 2009-1 Noteholder on the
immediately preceding Record Date on a pro rata basis, an amount equal to the
then Aggregate Series 2009-1 Principal Balance until the Series 2009-1
Notes are paid in full;


 


(c)       To each Series 2009-1 Noteholder on the
immediately preceding Record Date, pro rata (based on respective amounts due),
an amount equal to any Indemnity Amounts and Default Fees and any other amounts
then due and payable by the Issuer to the Series 2009-1 Noteholders
pursuant to the Series 2009-1 Transaction Documents; and


 


(d)       After application of the amounts required to be paid
pursuant to Section 302 of the Indenture, to the Issuer or its assigns,
any remaining amounts then on deposit in the Series 2009-1 Series Account.


 


Any amounts payable to a Series 2009-1 Noteholder pursuant to this
Section 302 shall be made by wire transfer of immediately available funds
to the account that such Series 


 


19

















 


2009-1 Noteholder has designated to the
Indenture Trustee in writing at least five Business Days prior to the
applicable Payment Date.


 


ARTICLE IV


 


Additional
Covenants; Additional Events of Default


 


In addition to the covenants set forth in Article VI of the
Indenture, the Issuer hereby makes the following additional covenants for the
benefit of the Series 2009-1 Noteholders:


 


Section 401.           Increase in the Aggregate Series 2009-1
Note Existing Commitment.  The Issuer
shall not issue on or after the Closing Date any additional Series 2009-1
Notes pursuant to this Supplement or increase the aggregate Series 2009-1
Note Existing Commitment (except for any such increase in the Series 2009-1
Note Existing Commitment made in accordance with Section 205(d) hereof
or Section 2.3 of the Series 2009-1 Note Purchase Agreement) without
the prior written consent of the Control Party for the Series 2009-1.  Nothing contained in this Section 401
shall prohibit the assignment by any Series 2009-1 Noteholder of all or a
portion of its Series 2009-1 Note Existing Commitment if, after giving
effect to such assignment, the aggregate Series 2009-1 Note Existing
Commitment shall not have increased.


 


Section 402.           Issuance of Additional Series of
Notes.  So long as the Series 2009-1
Supplement and related Series 2009-1 Transaction Documents remain in full
force and effect, the Issuer shall not issue any additional Series of
Notes without the prior written consent of the Control Party for Series 2009-1.  This Section 402 shall constitute one of
the “other conditions as shall be specified in the related Supplement” which
are referred to in paragraph (vii) of Section 1006(b) of the
Indenture.


 


Section 403.           Use of Proceeds.  The
proceeds from the issuance of the Series 2009-1 Notes shall be used as
follows: (i) to acquire Containers and Related Assets, (ii) to pay
the costs of issuance of the Series 2009-1 Notes and (iii) for
general corporate purposes (including distributions to the members of the
Issuer and any other activities and transactions permitted under the Issuer’s
Operating Agreement).  For avoidance of
doubt, the Issuer may use the proceeds of any Series 2009-1 Advance to
make payments on, or in respect of, any other Series of Notes.


 


Section 404.           Consent of the Majority of Holders.  So long as no Rating Agency maintains an
effective rating with respect to the Series 2009-1 Notes, the Issuer shall
not take, and will cause others acting on behalf of the Issuer to not take, any
action that requires satisfaction of the Rating Agency Condition or the consent
of the Rating Agencies (or any analogous concept) as a condition precedent
unless such action shall have also been approved by the Majority of Holders of
the Series 2009-1 Notes.


 


Section 405.           United States Federal Income Tax
Election.  The Issuer shall not elect
to be classified as an association taxable as a corporation under Section 301.7701-3
of the Treasury Regulations.


 


20

















 


ARTICLE V


 


Conditions
of Closing and Future Lending


 


Section 501.           Conditions to Closing.  The
effectiveness of this Supplement is subject to the condition precedent that the
Indenture Trustee and the Administrative Agent (other than with respect to the
items listed in clause (a) below) shall have received all of the
following, each duly executed and dated on or as of the Closing Date, in form
and substance satisfactory to each of the Series 2009-1 Noteholders.


 


(a)           Series 2009-1
Note.  A separate Series 2009-1
Note executed by the Issuer in favor of each Series 2009-1 Noteholder in
the stated principal amount equal to the Series 2009-1 Note Initial
Commitment of each such Series 2009-1 Noteholder.


 


(b)           Certificate(s) of
Secretary or Assistant Secretary. 
Separate certificates executed by the corporate secretary or assistant
secretary of TAL and the Issuer, each dated the Closing Date, certifying (i) that
the respective company has the authority to execute and deliver, and perform
its respective obligations under each of the Series 2009-1 Transaction
Documents to which it is a party, and (ii) that attached are true, correct
and complete copies of the organizational documents, authorizations and
incumbency certificates in form and substance satisfactory to the Series 2009-1
Noteholders as to such matters as they shall require.


 


(c)           Security
Documents.  The Indenture, the
Contribution and Sale Agreement and the Management Agreement, each in form and
substance satisfactory to the Series 2009-1 Noteholders, shall have been
executed and delivered by the Issuer and all other parties thereto and filed in
the appropriate jurisdictions, together with all Uniform Commercial Code
financing statements and documents of similar import in other jurisdictions
specified in Section 2.03(a) of the Contribution and Sale Agreement.


 


(d)           Opinions
of Counsel.  Opinions of Counsel to
the Issuer, as to perfection of the Indenture Trustee’s security interest in
the Collateral and enforceability of the Transaction Documents and from counsel
to the Issuer, Seller and Manager, in form and in substance satisfactory to the
Administrative Agent, the Series 2009-1 Noteholders, as to such matters as
they shall require, including without limitation regarding true sale and
non-consolidation matters.


 


(e)           Certificate
as to Containers.  An Officer’s
Certificate from the Manager certifying that it is managing all of the
Containers in accordance with the Management Agreement.


 


(f)            Series 2009-1
Transaction Documents.  The Series 2009-1
Transaction Documents shall have been duly executed and delivered and all of
the conditions precedent therein have either been satisfied or waived by the
Administrative Agent.


 


(g)           Insurance.  The Issuer shall have delivered certificates
evidencing the insurance coverage described in Section 3.9 of the
Management Agreement.


 


Notwithstanding
the foregoing conditions precedent, upon the making of any advance by a
Noteholder, all of the Indenture Trustee’s and Noteholders’ rights under the
Indenture and this 


 


21

















 


Supplement
shall vest in such Persons, whether or not the conditions precedent were in
fact satisfied.


 


Section 502.           Advances on Series 2009-1
Notes.  The obligation of each of the
Series 2009-1 Noteholders to make a Series 2009-1 Advance pursuant to
its commitment under the Series 2009-1 Transaction Documents is subject to
the following further conditions precedent being fulfilled with respect to each
such Series 2009-1 Advance:


 


(a)           Default.  Before and after giving effect to such Series 2009-1
Advance, no Event of Default shall have occurred and be continuing unless such Series 2009-1
Advance has been approved by each Series 2009-1 Noteholder.


 


(b)           Early
Amortization Event.  Before and after
giving effect to such Series 2009-1 Advance, no Early Amortization Event
shall have occurred and be continuing unless such Series 2009-1 Advance
has been approved by each Series 2009-1 Noteholder.


 


(c)           Asset
Base Imbalance.  Before and after giving
effect to such Series 2009-1 Advance, the Aggregate Note Principal Balance
(calculated after giving effect to such Series 2009-1 Advance) does not
exceed the Asset Base (calculated to give effect to the Eligible Containers to
be acquired with the proceeds of such Series 2009-1 Advance).


 


(d)           Asset
Base Certificate and Funding Notice. 
The Issuer shall have delivered to the Administrative Agent (with a copy
to the Indenture Trustee) (i) a duly completed and executed Funding Notice
and (ii) simultaneously with the delivery of such Funding Notice, a duly
completed and executed Asset Base Certificate (which shall give effect to any
Eligible Containers to be acquired with the proceeds of such Series 2009-1
Advance).


 


(e)           Conversion
Date.  The Conversion Date shall not
have occurred.


 


(f)            Note Purchase
Agreement.  All
conditions precedent to such Series 2009-1 Advance set forth in the Series 2009-1
Note Purchase Agreement have been met.


 


(g)           Discharge of
Existing Indebtedness.  If
the Issuer requests that the proceeds of such Series 2009-1 Advance be
used in whole or in part to discharge in full any undischarged Liens on the
Containers to be acquired on such date, the Funding Notice (as defined in the Series 2009-1
Note Purchase Agreement) shall include the name of the related lienholders and
their related wiring instructions.


 


(h)           Matters
regarding the Collateral.  The
Administrative Agent and the Series 2009-1 Noteholders shall have received
from the Issuer satisfactory evidence of (i) the existence or validity of
the Collateral, (ii) the perfection of the Indenture Trustee’s security
interest in the Collateral, and (iii) compliance by the Issuer, the Seller
and the Manager with all of their respective covenants, and the accuracy of all
of their respective warranties or representations, in each case to the extent
such covenants, warranties or representations relate to the Collateral.


 


22

















 


ARTICLE VI


 


Representations
and Warranties


 


The Issuer hereby represents and warrants (as of the Closing Date and
each date on which a Series 2009-1 Advance is made) to the Series 2009-1
Noteholders and the Indenture Trustee that:


 


Section 601.           Existence.  The Issuer is a limited liability company
duly organized, validly existing and in compliance under the laws of
Delaware.  The Issuer is in good standing
and is duly qualified to do business in each jurisdiction where the failure to
do so would reasonably be expected to have a material adverse effect upon the
Issuer, and has all licenses, permits, charters and registrations the failure
to hold which would reasonably be expected to have a material adverse effect on
the Issuer.


 


Section 602.           Authorization. 
The Issuer has the power and is duly authorized to execute and deliver
this Supplement, the Indenture and the other Series 2009-1 Transaction
Documents to which it is a party; the Issuer is and will continue to be duly
authorized to borrow monies under this Supplement, the Indenture and the other Series 2009-1
Transaction Documents; and the Issuer is and will continue to be authorized to
perform its obligations under this Supplement, the Indenture and the other Series 2009-1
Transaction Documents.  The execution,
delivery and performance by the Issuer of this Supplement, the Indenture and
the other Series 2009-1 Transaction Documents to which it is a party and
the borrowings hereunder do not and will not require any consent or approval of
any Governmental Authority, stockholder or any other Person which has not
already been obtained.


 


Section 603.           No Conflict; Legal Compliance. 
The execution, delivery and performance of this Supplement, the
Indenture and each of the other Series 2009-1 Transaction Documents and
the execution, delivery and payment of the Series 2009-1 Notes will not: (a) contravene
any provision of Issuer’s charter documents or by-laws or other organizational
documents; (b) contravene, conflict with or violate any applicable law or
regulation, or any order, writ, judgment, injunction, decree, determination or
award of any Governmental Authority; or (c) violate or result in the
breach of, or constitute a default under this Supplement, the Indenture, the
other Series 2009-1 Transaction Documents, any other indenture or other
loan or credit agreement, or other agreement or instrument to which the Issuer
is a party or by which Issuer, or its property and assets may be bound or
affected.  The Issuer is not in violation
or breach of or default under any law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or any contract, agreement, lease,
license, indenture or other instrument to which it is a party, in each case, in
a manner that would reasonably be expected to result in a Material Adverse
Change.


 


Section 604.           Validity and Binding Effect.  This Supplement is, and each other Series 2009-1
Transaction Document to which the Issuer is a party, when duly executed and
delivered, will be, legal, valid and binding obligations of the Issuer,
enforceable against the Issuer in accordance with their respective terms,
except as enforceability may be limited by bankruptcy, insolvency or other
similar laws of general application affecting the enforcement of creditors’
rights or by general principles of equity limiting the availability of
equitable remedies.


 


23

















 


Section 605.           Material Adverse Change. 
Since its date of formation, there has been no Material Adverse Change
in the financial condition of the Issuer.


 


Section 606.           Place of Business. 
The legal name of the Issuer as reflected on its certificate of
formation is “TAL Advantage III LLC”. 
The current location of the Issuer’s chief executive office and
principal “place of business” (within the meaning of Section 9-307 of the
UCC) is 100 Manhattanville Road, Purchase, New York 10577-2135.  The Issuer is organized under the laws of the
State of Delaware and has not been previously and is not now organized under
the laws of any other jurisdiction.


 


Section 607.           No Agreement or Contracts. 
The Issuer is not now and has not been a party to any contract or
agreement (whether written or oral) other than the Series 2009-1
Transaction Documents and the Transaction Documents (as defined in the
Indenture).


 


Section 608.           Consents and Approvals. 
No approval, authorization or consent of any trustee or holder of any
Indebtedness or obligation of the Issuer or of any other Person under any
agreement, contract, lease or license or similar document or instrument to
which the Issuer is a party or by which Issuer is bound, is required to be
obtained by the Issuer in order to make or consummate the transactions
contemplated under the Series 2009-1 Transaction Documents, except for
those approvals, authorizations and consents that have been obtained on or
prior to the Closing Date or which the failure to obtain would not reasonably
be expected to result in a Material Adverse Change.  All consents and approvals of, filings and
registrations with, and other actions in respect of, all Governmental
Authorities required to be obtained by Issuer in order to make or consummate
the transactions contemplated under the Series 2009-1 Transaction
Documents have been, or prior to the time when required will have been,
obtained, given, filed or taken and are or will be in full force and effect other
than any such consents, approvals, filings or registrations the failure to so
obtain or make would not reasonably be expected to result in a Material Adverse
Change.


 


Section 609.           Margin Regulations. 
The Issuer does not own any “margin security”, as that term is defined
in Regulation U of the Federal Reserve Board, and the proceeds of the Series 2009-1
Notes issued hereunder will be used only for the purposes contemplated
hereunder.  None of such proceeds will be
used, directly or indirectly, for the purpose of purchasing or carrying any
margin security, for the purpose of reducing or retiring any indebtedness which
was originally incurred to purchase or carry any margin security or for any
other purpose which might cause any of the Series 2009-1 Advances under
this Supplement to be considered a “purpose credit” within the meaning of
Regulations T, U and X.  The Issuer will
not take or permit any agent acting on its behalf to take any action which
might cause the Indenture or this Supplement or any document or instrument
delivered by the Issuer pursuant hereto to violate any regulation of the
Federal Reserve Board.


 


Section 610.           Taxes. 
All federal, state, local and foreign tax returns, reports and
statements required to be filed by the Issuer have been filed with the
appropriate Governmental Authorities, and all Taxes, Other Taxes and other
impositions shown thereon to be due and payable by the Issuer have been paid
prior to the date on which any fine, penalty, interest or late charge may be
added thereto for nonpayment thereof, or any such fine, penalty, interest, late
charge or loss has been paid, or the Issuer is contesting its liability
therefor in good faith and has 


 


24

















 


fully
reserved all such amounts according to GAAP in the financial statements
provided pursuant to Section 626 of the Indenture.  The Issuer has paid when due and payable all
charges upon the books of the Issuer and no Government Authority has asserted
any Lien against the Issuer with respect to unpaid Taxes or Other Taxes.  Proper and accurate amounts have been
withheld by the Issuer from its employees for all periods in full and complete
compliance with the tax, social security and unemployment withholding
provisions of applicable federal, state, local and foreign law and such
withholdings have been timely paid to the respective Governmental Authorities.


 


Section 611.           Other Regulations. 
The Issuer is not an “investment company,” or an “affiliated person” of,
or a “promoter” or “principal underwriter” for, an “investment company,” as
such terms are defined in the Investment Company Act of 1940, as amended.  The issuance of the Series 2009-1 Notes
hereunder and the application of the proceeds and repayment thereof by the
Issuer and the performance of the transactions contemplated by this Supplement
and the other Series 2009-1 Transaction Documents will not violate any
provision of the Investment Company Act or the Public Utility Holding Company
Act, or any rule, regulation or order issued by the Securities and Exchange
Commission thereunder.


 


Section 612.           Solvency and Separateness.


 


(a)       The capital of the Issuer is adequate for the business and
undertakings of the Issuer.


 


(b)       Other than with respect to the transactions contemplated by
the Transaction Documents, the Issuer is not engaged in any business
transactions with the Manager except as permitted by the Management Agreement
or with the Seller except as permitted by the Contribution and Sale Agreement.


 


(c)       At all times, at least one (1) member of the board of
directors of the Issuer shall qualify as an Independent Manager (as defined in
the Issuer’s limited liability company agreement).


 


(d)       The Issuer’s funds and assets are not, and will not be,
commingled with those of the Manager, except as permitted by the Management
Agreement.


 


(e)       The Issuer shall maintain (A) correct and complete books
and records of account, and (B) minutes of the meetings and other
proceedings of its board of managers.


 


(f)        The Issuer is not insolvent under the Insolvency Law and will
not be rendered insolvent by the transactions contemplated by the Series 2009-1
Transaction Documents and after giving effect to such transactions, the Issuer
will not be left with an unreasonably small amount of capital with which to
engage in its business nor will the Issuer have intended to incur, or believe
that it has incurred, debts beyond its ability to pay such debts as they
mature.  The Issuer does not contemplate
the commencement of insolvency, bankruptcy, liquidation or consolidation
proceedings or the appointment of a receiver, liquidator, trustee or similar
official in respect of the Issuer or any of its assets.


 


25

















 


Section 613.           No Default. 
No Event of Default or Early Amortization Event has occurred and is
continuing.  No event or condition that
with notice or the passage of time (or both) could reasonably be expected to
constitute an Event of Default or Early Amortization Event has occurred or is
continuing.


 


Section 614.           Litigation and Contingent
Liabilities.  No claims, litigation, arbitration
proceedings or governmental proceedings by any Governmental Authority are
pending or threatened against or are affecting Issuer the results of which will
materially and adversely interfere with the consummation of any of the
transactions contemplated by the Indenture, this Supplement or any document
issued or delivered in connection therewith or herewith.


 


Section 615.           Title; Liens. 
The Issuer has good, legal and marketable title to each of its
respective assets, and none of such assets is subject to any Lien, except for
Permitted Encumbrances and the Liens created or permitted pursuant to the
Indenture.


 


Section 616.           Subsidiaries. 
The Issuer has no subsidiaries.


 


Section 617.           No Partnership. 
The Issuer is not a partner or joint venturer in any partnership or
joint venture.


 


Section 618.           Pension and Welfare Plans. 
During the twelve-consecutive-month period prior to the date of the
execution and delivery of this Supplement, no steps have been taken to
terminate any Plan, and no contribution failure has occurred with respect to
any Plan, sufficient to give rise to a lien under section 302(f) of
ERISA.  No condition exists or event or
transaction, has occurred with respect to any Plan which could result in the
Issuer or any ERISA Affiliate of the Issuer incurring any material liability,
fine or penalty.  As of the Closing Date,
the Issuer is not a Benefit Plan Investor.


 


Section 619.           Ownership of the Issuer. 
All of the issued and outstanding membership interests of the Issuer are
owned by TAL.


 


Section 620.           Security Interest Representations.


 


(a)           The
Indenture creates a valid and continuing security interest (as defined in the
UCC) in the Collateral in favor of the Indenture Trustee, for the benefit of
the Noteholders and each Hedge Counterparty, which security interest is prior
to all other Liens, and is enforceable as such as against creditors of and
purchasers from the Issuer.


 


(b)           The
Containers constitute “goods” within the meaning of the applicable UCC.  The Leases constitute “tangible chattel paper”
within the meaning of the UCC.  The lease
receivables constitute “accounts” or “proceeds” of the Leases with the meaning
of the UCC.  The Trust Account, the
Restricted Cash Account (if such account has been opened) and the Series 2009-1
Series Account  constitute “securities accounts” within the
meaning of the UCC.  The Issuer’s
contractual rights under any Hedge Agreements, the Contribution and Sale
Agreement and the Management Agreement constitute “general intangibles” within
the meaning of the UCC.


 


26

















 


(c)           The
Issuer owns and has good and marketable title to the Collateral, free and clear
of any Lien (whether senior, junior or pari
passu), claim or encumbrance of any Person, except for Permitted
Encumbrances.


 


(d)           The
Issuer has caused the filing of all appropriate financing statements or
documents of similar import in the proper filing office in the appropriate
jurisdictions under Applicable Law in order to perfect the security interest in
the Collateral granted to the Indenture Trustee in the Indenture.


 


(e)           Other
than the security interest granted to the Indenture Trustee pursuant to the
Indenture, the Issuer has not pledged, assigned, sold, granted a security
interest in, or otherwise conveyed any of the Collateral, except as permitted
pursuant to the Indenture.  The Issuer
has not authorized the filing of, and is not aware of, any financing statements
against the Issuer that include a description of collateral covering the
Collateral other than any financing statement or document of similar import (i) relating
to the security interest granted to the Indenture Trustee in the Indenture or (ii) that
has been terminated.  The Issuer has no actual
knowledge of any judgment or tax lien filings against the Issuer.


 


(f)            Pursuant
to Section 3.3.5 of the Management Agreement, the Manager has acknowledged
that it is holding the Leases, to the extent they relate to the Managed
Containers on behalf of, and for the benefit of, the Indenture Trustee.  None of the Leases that constitute or
evidence the Collateral has any marks or notations indicating that they have
been pledged, assigned or otherwise conveyed to any Person.  The Seller has caused the filing of all
appropriate financing statements or documents of similar import in the proper
filing office in the appropriate jurisdictions under Applicable Law in order to
perfect the ownership interest of the Issuer (and the Indenture Trustee as its
assignee) in the Leases (to the extent that such Leases relate to the Managed
Containers) arising under the Contribution and Sale Agreement.


 


(g)           The
Issuer has received all necessary consents and approvals required by the terms
of the Collateral to the pledge to the Indenture Trustee of its interest and
rights in such Collateral hereunder or under the Indenture.


 


(h)           Wells
Fargo Bank, National Association (in its capacity as securities intermediary)
has identified in its records the Indenture Trustee as the Person having a
Security Entitlement in each of the Trust Account and the Series 2009-1 Series Account
(and will do so with respect to the Restricted Cash Account, if and when such
account is opened).


 


(i)            The
Trust Account and the Series 2009-1 Series Account are not in the
name of any Person other than the Issuer. 
The Issuer has not consented for Wells Fargo Bank, National Association
(as the securities intermediary of the Trust Account and the Series 2009-1
Series Account) to comply with Entitlement Orders of any Person other than
the Indenture Trustee.


 


(j)            No
creditor of the Issuer (other than (x) with respect to the Managed
Containers, the related lessee and (y) the Manager in its capacity as
Manager under the Management Agreement) has in its possession any goods that
constitute or evidence the 


 


27

















 


Collateral, other than for purposes of repair, refurbishment, painting,
positioning, storage and other similar matters with respect to Managed
Containers.


 


The representations and warranties set forth in this Section 620
shall survive until this Supplement is terminated in accordance with its terms
and the terms of the Indenture.  Any
breaches of the representations and warranties set forth in this Section 620
may be waived by the Indenture Trustee, only with the prior written consent of
the Control Party.


 


Section 621.           Tax Election of the Issuer.  None of the Issuer, any of its members or any
other Person has elected, or agreed to elect, to treat the Issuer as an association
taxable as a corporation for United States federal income tax purposes.


 


Section 622.           Survival of Representations and
Warranties.  So long as any of the Series 2009-1
Notes shall be Outstanding and until payment and performance in full of the Outstanding
Obligations, the representations and warranties contained herein shall have a
continuing effect as having been true when made.


 


ARTICLE VII


 


Miscellaneous
Provisions


 


Section 701.           Ratification of Indenture. 
As supplemented by this Supplement, the Indenture is in all respects
ratified and confirmed and the Indenture as so supplemented by this Supplement
shall be read, taken and construed as one and the same instrument.


 


Section 702.           Counterparts. 
This Supplement 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
Supplement by facsimile or by electronic means shall be equally effective as of
the delivery of an originally executed counterpart.


 


Section 703.           Governing Law. 
THIS SUPPLEMENT SHALL BE CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE
GENERAL OBLIGATIONS LAW BUT OTHERWISE WITHOUT GIVING EFFECT TO THE PRINCIPLES
OF CONFLICTS OF LAW, AND THE RIGHTS, OBLIGATIONS AND REMEDIES OF THE PARTIES
HERETO SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF  NEW YORK.


 


Section 704.           Amendments
and Modifications.   (a) The terms of
this Supplement may be waived, modified or amended only in a written instrument
signed by (A) each of the Issuer, the Control Party and the Indenture
Trustee and (B) (i) except with respect to the matters set forth in Section 1002(a) of
the Indenture, the prior written consent of the Majority of Holders and (ii) if
required pursuant to Section 1001 or 1002(a) of the Indenture, each
affected Series 2009-1 Noteholder. 
For the purposes of clause (B) of the preceding sentence, any
amendment to or modification or waiver of this Supplement shall be deemed a
Supplemental Indenture subject 


 


28

















 


to Sections 1001 or 1002 of the Indenture.  The Series 2009-1 Note Existing Commitment
of an individual Series 2009-1 Noteholder may only be increased, and the
Conversion Date of an individual Series 2009-1 Noteholder may only be
extended, in accordance with the provisions of Section 8.1(a) of the
Note Purchase Agreement.


 


(b)           Promptly after
the execution by the Issuer and the Indenture Trustee of any written instrument
pursuant to this Section, the Indenture Trustee shall mail to each Rating
Agency, if any, then having a rating in effect with respect to the Series 2009-1
Notes, the Noteholders, the Administrative Agent and each Hedge Counterparty a
copy of the text of such Supplement. Any failure of the Indenture Trustee to
mail such copy, or any defect therein, shall not, however, in any way impair or
affect the validity of any such Supplement.


 


Section 705.           Consent
to Jurisdiction.  ANY LEGAL SUIT,
ACTION OR PROCEEDING AGAINST ANY PARTY HERETO ARISING OUT OF OR RELATING TO
THIS SUPPLEMENT, 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 ENFORCING THIS SUPPLEMENT, EACH PARTY HERETO
HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH
SUIT, ACTION OR PROCEEDING.


 


Section 706.           Waiver
of Jury Trial.  EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES, AS AGAINST THE OTHER PARTIES 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 SUPPLEMENT OR ANY OTHER
TRANSACTION DOCUMENT, INCLUDING IN RESPECT OF THE NEGOTIATION, ADMINISTRATION
OR ENFORCEMENT HEREOF OR THEREOF.


 


[Signature page follows.]


 


29














 


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


 


	
   

  	
  TAL
  ADVANTAGE III LLC,

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  TAL
  International Container Corporation,

  its manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


SERIES
2009-1 SUPPLEMENT


 

















 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL

  ASSOCIATION,

  not individually but solely as Indenture Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 


SERIES
2009-1 SUPPLEMENT


 

















 


EXHIBIT A


 


FORM OF SERIES 2009-1
NOTE


 


THIS NOTE HAS NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”),
OR UNDER THE SECURITIES LAWS OF ANY OTHER JURISDICTION.  THIS NOTE MAY NOT BE OFFERED FOR SALE,
TRANSFER OR ASSIGNMENT UNLESS (1) SO REGISTERED OR THE TRANSACTION
RELATING THERETO SHALL BE EXEMPT WITHIN THE MEANING OF SUCH ACT AND THE RULES
AND REGULATIONS OF THE SECURITIES AND EXCHANGE COMMISSION ADOPTED THEREUNDER
AND (2) SUCH TRANSACTION COMPLIES WITH THE PROVISIONS SET FORTH IN SECTION 205
OF THE INDENTURE.  BECAUSE OF THE
PROVISIONS FOR THE PAYMENT OF PRINCIPAL CONTAINED HEREIN, THE OUTSTANDING
PRINCIPAL AMOUNT OF THIS NOTE MAY BE LESS THAN THE AMOUNT SHOWN ON THE
FACE HEREOF.  ANYONE PURCHASING THIS NOTE
MAY ASCERTAIN THE OUTSTANDING PRINCIPAL AMOUNT HEREOF BY INQUIRY TO THE
INDENTURE TRUSTEE.


 


EACH PURCHASER OF A SERIES
2009-1 NOTE SHALL BE DEEMED TO REPRESENT AND WARRANT TO THE ISSUER, THE
INDENTURE TRUSTEE AND THE MANAGER THAT IT IS NOT ACQUIRING SUCH NOTE WITH THE ASSETS
OF AN “EMPLOYEE BENEFIT PLAN” AS DEFINED IN SECTION 3(3) OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED (“ERISA”), WHETHER
OR NOT IT IS SUBJECT TO TITLE I OF ERISA, A “PLAN” WITHIN THE MEANING OF SECTION 4975(e)(1) OF
THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (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.


 


TAL ADVANTAGE III LLC

FLOATING RATE SECURED NOTES


 


SERIES 2009-1


 


	
  Up to $                            

  	
   

  	
  No. [    ]

  
	
   

  	
   

  	
                 ,      

  



 


KNOW ALL PERSONS BY THESE
PRESENTS that TAL ADVANTAGE III LLC, a limited liability company organized and
existing under the laws of Delaware (the “Issuer”), for value received, hereby
promises to pay to                         
                  
or their registered assigns, at the principal corporate trust office of the
Indenture Trustee named below, (i) the principal sum of up to                                                 ,
which sum shall be payable on the dates and in the amounts set forth in the
Indenture, dated as of October 23, 2009 (as amended, restated or otherwise
modified from time to time, the “Indenture”) and the Series 2009-1
Supplement, dated as of October 23, 2009 (as amended, restated or
otherwise modified from 


 

















 


time
to time, the “Series 2009-1 Supplement”), each between the Issuer and
Wells Fargo Bank, National Association as indenture trustee (the “Indenture
Trustee”), (ii) interest on the outstanding principal amount of this Series 2009-1
Note on the dates and in the amounts set forth in the Indenture and the Series 2009-1
Supplement, and (iii) certain other amounts as provided in the Indenture
and the Series 2009-1 Supplement.  A
record of each Series 2009-1 Advance, Prepayment and repayment shall be
made by the Administrative Agent and absent manifest error such record shall be
conclusive.  Capitalized terms not
otherwise defined herein will have the meaning set forth in Appendix A to the
Indenture and the Series 2009-1 Supplement.


 


Payment of the principal of
and interest on this Note shall be made in lawful money of the United States of
America which at the time of payment is legal tender for payment of public and
private debts.  The principal balance of,
and interest on this Series 2009-1 Note is payable at the times and in the
amounts set forth in the Indenture and the Series 2009-1 Supplement by
wire transfer of immediately available funds to the account designated by the
Holder of record on the immediately preceding Record Date.  This Series 2009-1 Note is a Warehouse
Note.


 


This Series 2009-1 Note
is one of the authorized notes identified in the title hereto and issued in the
aggregate principal amount of up to Seventy-Five Million Dollars ($75,000,000)
or, under certain circumstances, up to One Hundred Seventy Million Dollars
($170,000,000), pursuant to the Indenture and the Series 2009-1
Supplement.


 


This Series 2009-1 Note
shall be an obligation of the Issuer and shall be secured by the Collateral,
all as defined in, and subject to limitations set forth in, the Indenture and
the Series 2009-1 Supplement.


 


This Series 2009-1 Note
is transferable as provided in the Indenture and the Series 2009-1
Supplement, subject to certain limitations therein contained, only upon the
books for registration and transfer kept by the Indenture Trustee, and only
upon surrender of this Series 2009-1 Note for transfer to the Indenture
Trustee duly endorsed by, or accompanied by a written instrument of transfer in
form reasonably satisfactory to the Indenture Trustee duly executed by, the
registered Holder hereof or his attorney duly authorized in writing.  The Indenture Trustee or the Issuer may
require payment by the Holder of a sum sufficient to cover any tax expense or
other governmental charge payable in connection with any transfer or exchange
of the Series 2009-1 Note.


 


The Issuer, the Indenture
Trustee and any other agent of the Issuer shall treat the person in whose name
this Series 2009-1 Note is registered as the absolute owner hereof for all
purposes, and neither the Issuer, the Indenture Trustee, nor any other such
agent shall be affected by notice to the contrary.


 


This Series 2009-1 Note
is subject to Prepayment, at the times and subject to the conditions set forth
in the Indenture and the Series 2009-1 Supplement.


 


2

















 


If an Event of Default shall
occur and be continuing, the principal of and accrued interest on this Series 2009-1
Note may be declared to be due and payable in the manner and with the effect
provided in the Indenture and the Series 2009-1 Supplement.


 


The Indenture permits, with
certain exceptions as therein provided, the issuance of supplemental indentures
in certain specifically described instances. 
Any supplemental indenture made in accordance with the terms of this
Supplement and the Indenture shall be conclusive and binding upon the Holder of
this Series 2009-1 Note and on all future holders of this Series 2009-1
Note and of any Series 2009-1 Note issued in lieu hereof.  Supplements and amendments to the Indenture
and the Series 2009-1 Supplement may be made only to the extent and in
circumstances permitted by the Indenture and the Series 2009-1 Supplement.


 


The Holder of this Series 2009-1
Note shall have no right to enforce the provisions of the Indenture and the Series 2009-1
Supplement or to institute action to enforce the covenants, or to take any
action with respect to a default under the Indenture and the Series 2009-1
Supplement, or to institute, appear in or defend any suit or other proceedings
with respect thereto, except as provided under certain circumstances described
in the Indenture and the Series 2009-1 Supplement; provided,
however, that nothing contained in the Indenture and the Series 2009-1
Supplement shall affect or impair any right of enforcement conferred on the
Holder hereof to enforce any payment of the principal of and interest on this Series 2009-1
Note on or after the due date thereof; provided further, however, that by
acceptance hereof the Holder is deemed to have covenanted and agreed that it
will not institute against the Issuer any bankruptcy, reorganization,
arrangement, insolvency or liquidation proceedings, or other proceedings under
any applicable bankruptcy or similar law, at any time other than at such time
as permitted by the Indenture and the Series 2009-1 Supplement.


 


Each Holder of a Series 2009-1
Note shall be deemed to represent and warrant to the Initial Purchaser, the
Issuer, the Indenture Trustee and the Manager that it is not acquiring such Series 2009-1
Note with the assets of 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.


 


Each Holder of a Series 2009-1
Note (i) agrees to treat this Series 2009-1 Note for United States
federal, state and local income, single business and franchise tax purposes as
indebtedness, (ii) agrees that the duties of the Administrative Agent are
not to be construed as a replacement Manager, (iii) agrees that the Series 2009-1
Note shall not have any interest in any Series Account of any other Series or
Class and (iv) ratifies and confirms the terms of the Indenture and
the other Series 2009-1 Transaction Documents.


 


All terms and provisions of
the Indenture and the Series 2009-1 Supplement are herein incorporated by
reference as if set forth herein in their entirety.  In the event of any conflict between this Series 2009-1
Note, on the one hand, and the Indenture or the Series 2009-1 Supplement,
on the other hand, the Indenture or the Series 2009-1 Supplement, as
applicable, shall control.


 


3

















 


IT IS HEREBY CERTIFIED,
RECITED AND DECLARED, that all acts, conditions and things required to exist,
happen and be performed precedent to the execution and delivery of the
Indenture and the Series 2009-1 Supplement and the issuance of this Series 2009-1
Note and the issue of which it is a part, do exist, have happened and have been
timely performed in regular form and manner as required by law.


 


Unless the certificate of
authentication hereon has been executed by the Indenture Trustee by manual
signature of one of its authorized officers, this Series 2009-1 Note shall
not be entitled to any benefit under the Indenture and the Series 2009-1
Supplement, or be valid or obligatory for any purpose.


 


[Remainder of Page Intentionally
Left Blank]


 


4

















 


IN WITNESS WHEREOF, TAL
Advantage III LLC has caused this Series 2009-1 Note to be duly executed
by its duly authorized representative, on this           
day of                         ,
        .


 


	
   

  	
  TAL
  ADVANTAGE III LLC,

  
	
   

  	
  By:

  	
  TAL
  International Container Corporation,

  its manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
   

  



 


 


This Note is one of the Series 2009-1
Notes described in the within-mentioned Indenture and the Series 2009-1
Supplement.


 


	
   

  	
  WELLS
  FARGO BANK, NATIONAL

  ASSOCIATION,

  as indenture trustee

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Its:

  	
   

  



 

















 


SCHEDULE 1


 


Percentage of Minimum Targeted Principal Balance


Series 2009-1 Notes


 


 


	
  Period
  Following

  Conversion

  	
   

  	
  Target Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  0

  	
   

  	
  100.00

  	
  %

  
	
  1

  	
   

  	
  99.17

  	
  %

  
	
  2

  	
   

  	
  98.33

  	
  %

  
	
  3

  	
   

  	
  97.50

  	
  %

  
	
  4

  	
   

  	
  96.67

  	
  %

  
	
  5

  	
   

  	
  95.83

  	
  %

  
	
  6

  	
   

  	
  95.00

  	
  %

  
	
  7

  	
   

  	
  94.17

  	
  %

  
	
  8

  	
   

  	
  93.33

  	
  %

  
	
  9

  	
   

  	
  92.50

  	
  %

  
	
  10

  	
   

  	
  91.67

  	
  %

  
	
  11

  	
   

  	
  90.83

  	
  %

  
	
  12

  	
   

  	
  90.00

  	
  %

  
	
  13

  	
   

  	
  89.17

  	
  %

  
	
  14

  	
   

  	
  88.33

  	
  %

  
	
  15

  	
   

  	
  87.50

  	
  %

  
	
  16

  	
   

  	
  86.67

  	
  %

  
	
  17

  	
   

  	
  85.83

  	
  %

  
	
  18

  	
   

  	
  85.00

  	
  %

  
	
  19

  	
   

  	
  84.17

  	
  %

  
	
  20

  	
   

  	
  83.33

  	
  %

  
	
  21

  	
   

  	
  82.50

  	
  %

  
	
  22

  	
   

  	
  81.67

  	
  %

  
	
  23

  	
   

  	
  80.83

  	
  %

  
	
  24

  	
   

  	
  80.00

  	
  %

  
	
  25

  	
   

  	
  79.17

  	
  %

  
	
  26

  	
   

  	
  78.33

  	
  %

  
	
  27

  	
   

  	
  77.50

  	
  %

  
	
  28

  	
   

  	
  76.67

  	
  %

  
	
  29

  	
   

  	
  75.83

  	
  %

  
	
  30

  	
   

  	
  75.00

  	
  %

  
	
  31

  	
   

  	
  74.17

  	
  %

  
	
  32

  	
   

  	
  73.33

  	
  %

  
	
  33

  	
   

  	
  72.50

  	
  %

  
	
  34

  	
   

  	
  71.67

  	
  %

  
	
  35

  	
   

  	
  70.83

  	
  %

  
	
  36

  	
   

  	
  70.00

  	
  %

  
	
  37

  	
   

  	
  69.17

  	
  %

  
	
  38

  	
   

  	
  68.33

  	
  %

  



 


1

















 


	
  Period
  Following

  Conversion

  	
   

  	
  Target Percentage

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  39

  	
   

  	
  67.50

  	
  %

  
	
  40

  	
   

  	
  66.67

  	
  %

  
	
  41

  	
   

  	
  65.83

  	
  %

  
	
  42

  	
   

  	
  65.00

  	
  %

  
	
  43

  	
   

  	
  64.17

  	
  %

  
	
  44

  	
   

  	
  63.33

  	
  %

  
	
  45

  	
   

  	
  62.50

  	
  %

  
	
  46

  	
   

  	
  61.67

  	
  %

  
	
  47

  	
   

  	
  60.83

  	
  %

  
	
  48

  	
   

  	
  60.00

  	
  %

  
	
  49

  	
   

  	
  0.00

  	
  %

  



 


2

















 


SCHEDULE 2


 


	
  Series 2009-1

  Noteholder

  	
   

  	
  Commitment on

  Closing Date

  	
   

  	
  Percentage of

  Commitment

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wachovia Bank, N.A.

  	
   

  	
  $

  	
  75,000,000

  	
   

  	
  100

  	
  %

  
							



 


i