EXHIBIT 10.8


 


EXECUTION VERSION


 


AMENDMENT NUMBER 1 TO SECOND AMENDED AND RESTATED INDENTURE


 


THIS
AMENDMENT NUMBER 1 TO THE SECOND AMENDED AND RESTATED INDENTURE, dated as of April 26,
2007 (this “Amendment”), between CLI FUNDING LLC, a limited liability company
organized under the laws of the state of Delaware (the “Issuer”), and U.S. BANK
NATIONAL ASSOCIATION, a national banking association, as the Indenture Trustee
(together with its successors and permitted assigns, the “Indenture Trustee”)
and consented to by Ambac Assurance Corporation, as the Requisite Global
Majority, is to the Amended and Restated Indenture, dated as of August 24,
2006 (as amended, modified and supplemented from time to time in accordance
with its terms, the “Indenture”), between the Issuer and the Indenture
Trustee.


 


WITNESSETH:


 


WHEREAS,
the parties have previously entered into the Indenture;


 


WHEREAS,
the parties hereto desire to further amend the Indenture in certain respects as
provided herein;


 


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


 


1. Defined
Terms. Unless otherwise amended by the terms of this Amendment, terms used
in this Amendment shall have the meanings assigned in the Indenture.


 


2. Amendments
to the Indenture. Effective as of the execution and delivery of this
Amendment, the following Sections and provisions of the Indenture are amended
as follows:


 


(a) The Granting
Clause of the Indenture is hereby amended by deleting the sentence following
clause (ii) of such clause and inserting in its place:


 


“All of the property
described in this Granting Clause is herein collectively called the “Collateral”.
Notwitstanding the foregoing Grant, (i) no item described in items (1) through
(19) above owed by, or belonging to, a Prohibited Person and (ii) no Lease
in which the Lessee is a Prohibited Person, shall, in either instance,
constitute Collateral and any such item or Lease shall be deemed rejected
hereunder.”.


 


(b) The definition
of “Applicable Law” in Section 101 of the Indenture is hereby amended by
adding “, including OFAC,” immediately following “Governmental Authority”.


 


(c) Section 101
of the Indenture is hereby amended by adding the following definition in
correct alphabetical order therein:


 


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


 

















 


(d) The definition
of “Prohibited Jurisdiction” in Section 101 of the Indenture is hereby
amended by deleting “the Office of Foreign Assets Control of the United States
Treasury Department” and inserting in its place “OFAC”.


 


(e) The definition
of “Permissible Container Type” in Section 101 of the Indenture is hereby
amended by deleting “and” at the end of clause (iv), deleting the period at the
end of clause (v) and inserting in its place “;” and adding a new clause (vi) as
follows:


 


“(vi) dry
containers; provided that such dry containers shall be twenty foot dry
containers, forty foot dry containers or forty foot high cube containers, and
provided further that such dry containers collectively shall not exceed ten
percent of the Aggregate Net Book Value.”.


 


(f) The definition
of “Prohibited Person” in Section 101 is hereby amended and restated in
its entirety to read as follows:


 


“Prohibited Person: Any Person appearing on
the Specially Designated Nationals List or any other list or sanctions program
compiled and disseminated by OFAC, as the same may be amended from time to
time.”.


 


(g) Section 401(a) of
the Indenture is hereby amended by adding the following new sentence at the end
of such section:


 


“Notwithstanding
anything contained in this Indenture to the contrary, any account, instrument,
chattel paper, lease, or other obligation or property of any kind due from,
owed by, or belonging to, a Prohibited Person shall not constitute, and shall
be deemed rejected as, Collateral hereunder in accordance with the
Granting Clause of this Indenture.”.


 


(h) Section 606(a)(iii) is
hereby amended by adding “to Persons that are not Prohibited Persons” after “sales
of Containers” at the beginning of such clause.


 


(i) Section 606(a)(iv) is
hereby amended by adding “to Persons that are not Prohibited Persons” after “(including
any such sales resulting from the sell/repair decision of the Manager)”.


 


(j) Section 606(a)(vii) is
hereby amended by adding “that are not Prohibited Persons” after “unaffiliated
third parties”.


 


(k) Section 632
is hereby amended and restated in its entirety to read as follows:


 


“Section 632. OFAC. The Issuer shall not (i) lease,
or consent to the sublease of, a Container to a Prohibited Person or an entity
organized in a Prohibited Jurisdiction or (ii) derive any of its assets or
operating income from investments in or transactions with any such Prohibited
Person or Prohibited Jurisdiction. If the Issuer obtains knowledge that a
Container is subleased to a Prohibited Person or located or used in a
Prohibited Jurisdiction (other than by the United States government, or
pursuant to a license issued by OFAC), then the Issuer shall, within ten (10) Business
Days after obtaining


 


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knowledge thereof, remove such Container from the
Asset Base for so long as such condition continues.”.


 


3. Representations
and Warranties of the Issuer. The Issuer hereby represents and warrants
that:


 


(a) It
is duly organized and validly existing under the laws of the jurisdiction of
its organization and in good standing and duly qualified to do business in each
jurisdiction where the failure to do so would have a material adverse effect
upon its financial condition and business;


 


(b) It
has the power, and it duly authorized, to execute and deliver this Amendment,
and it is authorized to perform its obligations under this Amendment and the
Indenture as amended hereby;


 


(c) The
execution, delivery and performance of this Amendment and the Indenture as
amended hereby does not and will not require any consent or approval of any
Governmental Authority, manager or any other Person which is not being obtained
herein;


 


(d) This
Amendment, when duly executed and delivered by the parties hereto, and the
Indenture as amended hereby, shall be a legal, valid and binding obligation of
the Issuer, enforceable against it in accordance with the terms set forth
herein;


 


(e) No
Early Amortization Event, Event of Default or Manager Default or event which,
with notice or lapse of time or both, would constitute an Early Amortization
Event, Event of Default or Manager Default, has occurred and is continuing, and
no Early Amortization Event, Event of Default or Manager Default shall occur as
a result of the execution, delivery and performance of this Amendment and the
Indenture as amended hereby; and


 


(f) Each
of the conditions precedent necessary to amend the Indenture as set forth
herein have been, or contemporaneously with the execution of this Amendment
will be, satisfied.


 


4. Scope
and Effectiveness of Agreement.


 


(a) This
Amendment shall be effective upon execution and delivery hereof and shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns.


 


(b) On
and after the execution and delivery hereof, (i) this Amendment shall
become a part of the Indenture and each reference in the Indenture to “this
Indenture”, “hereof, “hereunder” or words of like import, and each reference in
any other document to the Indenture shall mean and be a reference to the
Indenture as amended or modified hereby.


 


(c) Except
as expressly amended by the terms of this Amendment, all terms and conditions
of the Indenture, as amended, shall remain in full force and effect and are
hereby ratified in all respects.


 


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(d) Each
party hereto agrees and acknowledges that this Amendment constitutes a “Related
Document” under the Indenture.


 


(e) The
amendments provided herein shall be effective only for the purposes set forth
herein and do not allow for any other or further departure from the terms of
the Indenture or any other Related Document, which terms shall continue in full
force and effect.


 


5. Entire
Agreement. This Amendment represents the entire agreement between the
parties with respect to the subject matter hereof.


 


6. Execution
in Counterparts. This Amendment may be executed in 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 a signature page to this amendment by facsimile
shall be effective as delivery of a manually executed counterpart of this
amendment.


 


7. Governing
Law. THIS AMENDMENT SHALL BE CONSTRUED BY AND INTERPRETED IN ACCORDANCE
WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING SECTIONS 5-1401 AND 5-1402 OF
THE NEW YORK GENERAL OBLIGATIONS LAWS BUT OTHERWISE WITHOUT GIVING EFFECT TO
THE PRINCIPLES OF CONFLICTS OF LAWS, THAT WOULD RESULT IN APPLICATION OF LAWS
OTHER THAN THE STATE NEW YORK, AND THE RIGHTS, OBLIGATIONS AND REMEDIES OF THE
PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK.


 


[Signature Pages Follow]


 


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IN
WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly
executed by their respective officers as of the day and year first above
written.


 


	
   

  	
  CLI FUNDING LLC

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Lisa D. Leach

  
	
   

  	
  Name:

  	
  Lisa D. Leach

  
	
   

  	
  Title:

  	
  Vice
  President & General Counsel

  



 

















 


	
   

  	
  U.S. BANK NATIONAL
  ASSOCIATION,

  not individually but
  solely as Indenture Trustee

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Diane L. Reynolds

  
	
   

  	
  Name:

  	
  Diane L. Reynolds

  
	
   

  	
  Title:

  	
  Vice President

  



 

















 


The
Undersigned, as Requisite Global Majority, Hereby Consents To The Foregoing
Amendment No. 1 to the Second Amended and Restated Indenture:


 


	
  AMBAC
  ASSURANCE

  CORPORATION,

  as
  Requisite Global Majority

  	
   

  
	
   

  	
   

  
	
  By:

  	
  /s/ John Siris

  	
   

  
	
  Name:

  	
  John Siris

  	
   

  
	
  Title:

  	
  Vice President

  	
   

  



 


AMENDMENT
1 TO 2ND A&R INDENTURE