EXHIBIT 10.6


 


EXECUTION
VERSION


 


CLI
FUNDING LLC


Issuer


 


and


 


U.S.
BANK NATIONAL ASSOCIATION


Indenture Trustee


and


Securities Intermediary


 






 


SECOND AMENDED &
RESTATED INDENTURE


 


Dated as of August 24,
2006


 






 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  ARTICLE I

  DEFINITIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 101.

  	
  Defined Terms

  	
  4

  
	
  Section 102.

  	
  Other Definitional Provisions

  	
  33

  
	
  Section 103.

  	
  Computation of Time Periods

  	
  33

  
	
  Section 104.

  	
  Duties of Transition Agent

  	
  34

  
	
   

  	
   

  	
   

  
	
  ARTICLE II

  THE NOTES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 201.

  	
  Authorization of Notes

  	
  35

  
	
  Section 202.

  	
  Form of Notes; Global Notes

  	
  35

  
	
  Section 203.

  	
  Execution; Recourse Obligation

  	
  38

  
	
  Section 204.

  	
  Certificate of Authentication

  	
  38

  
	
  Section 205.

  	
  Registration; Registration of Transfer and Exchange
  of Notes

  	
  38

  
	
  Section 206.

  	
  Mutilated, Destroyed, Lost and Stolen Notes

  	
  41

  
	
  Section 207.

  	
  Delivery, Retention and Cancellation of Notes

  	
  41

  
	
  Section 208.

  	
  ERISA Representations

  	
  42

  
	
   

  	
   

  	
   

  
	
  ARTICLE III

  PAYMENT OF NOTES;
  STATEMENTS TO NOTEHOLDERS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 301.

  	
  Principal and Interest

  	
  43

  
	
  Section 302.

  	
  Trust Account

  	
  43

  
	
  Section 303.

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

  	
  52

  
	
  Section 304.

  	
  Reports to Noteholders

  	
  54

  
	
  Section 305.

  	
  Records

  	
  55

  
	
  Section 306.

  	
  Restricted Cash Account

  	
  55

  
	
  Section 307.

  	
  CUSIP Numbers

  	
  56

  
	
  Section 308.

  	
  No Claim

  	
  56

  
	
  Section 309.

  	
  Compliance with Withholding Requirements

  	
  56

  
	
  Section 310.

  	
  Tax Treatment of Notes

  	
  56

  
	
  Section 311.

  	
  Subordination

  	
  56

  
	
  Section 312.

  	
  Manager Transition Account

  	
  56

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV

  COLLATERAL

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 401.

  	
  Collateral

  	
  58

  
	
  Section 402.

  	
  Pro Rata Interest

  	
  59

  
	
  Section 403.

  	
  Indenture Trustee’s Appointment as Attorney-in-Fact

  	
  59

  



 


i

















 


	
  Section 404.

  	
  Release of Security Interest

  	
  61

  
	
  Section 405.

  	
  Administration of Collateral

  	
  61

  
	
  Section 406.

  	
  Quiet Enjoyment

  	
  62

  
	
  Section 407.

  	
  Intercreditor Agreement

  	
  62

  
	
   

  	
   

  	
   

  
	
  ARTICLE V

  RIGHTS OF
  NOTEHOLDERS; ALLOCATION AND APPLICATION OF COLLECTIONS;

  REQUISITE GLOBAL MAJORITY

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 501.

  	
  Rights of Noteholders

  	
  64

  
	
  Section 502.

  	
  Collections and Allocations

  	
  64

  
	
  Section 503.

  	
  Determination of Requisite Global Majority

  	
  64

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI

  COVENANTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 601.

  	
  Payment of Principal and Interest; Payment of Taxes

  	
  65

  
	
  Section 602.

  	
  Maintenance of Office

  	
  65

  
	
  Section 603.

  	
  Corporate Existence

  	
  65

  
	
  Section 604.

  	
  Protection of Collateral

  	
  65

  
	
  Section 605.

  	
  Performance of Obligations

  	
  66

  
	
  Section 606.

  	
  Negative Covenants

  	
  67

  
	
  Section 607.

  	
  Non-Consolidation of the Issuer

  	
  68

  
	
  Section 608.

  	
  No Bankruptcy Petition

  	
  69

  
	
  Section 609.

  	
  Liens

  	
  69

  
	
  Section 610.

  	
  Other Debt

  	
  69

  
	
  Section 611.

  	
  Guarantees, Loans, Advances and Other Liabilities

  	
  69

  
	
  Section 612.

  	
  Consolidation, Merger and Sale of Assets

  	
  69

  
	
  Section 613.

  	
  Other Agreements

  	
  70

  
	
  Section 614.

  	
  Charter Documents

  	
  70

  
	
  Section 615.

  	
  Capital Expenditures

  	
  70

  
	
  Section 616.

  	
  Permitted Activities; Compliance with Organizational
  Document

  	
  70

  
	
  Section 617.

  	
  Investment Company Act

  	
  70

  
	
  Section 618.

  	
  Payments of Collateral

  	
  70

  
	
  Section 619.

  	
  Notices

  	
  70

  
	
  Section 620.

  	
  Books and Records

  	
  71

  
	
  Section 621.

  	
  Taxes

  	
  71

  
	
  Section 622.

  	
  Subsidiaries

  	
  71

  
	
  Section 623.

  	
  Investments

  	
  71

  
	
  Section 624.

  	
  Use of Proceeds

  	
  71

  
	
  Section 625.

  	
  Asset Base Certificate

  	
  71

  
	
  Section 626.

  	
  Financial Statements

  	
  72

  
	
  Section 627.

  	
  UNIDROIT Convention

  	
  72

  
	
  Section 628.

  	
  Other Information

  	
  72

  
	
  Section 629.

  	
  Amendment of Intercreditor Agreement

  	
  72

  
	
  Section 630.

  	
  Hedging Requirements

  	
  72

  
	
  Section 631.

  	
  Depreciation Policy

  	
  73

  
	
  Section 632.

  	
  OFAC

  	
  73

  



 


ii

















 


	
  ARTICLE VII

  DISCHARGE OF
  INDENTURE; PREPAYMENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 701.

  	
  Full Discharge

  	
  74

  
	
  Section 702.

  	
  Prepayment of Notes

  	
  74

  
	
  Section 703.

  	
  Unclaimed Funds

  	
  75

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  DEFAULT PROVISIONS AND REMEDIES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 801.

  	
  Event of Default

  	
  76

  
	
  Section 802.

  	
  Acceleration of Stated Maturity; Rescission and
  Annulment

  	
  79

  
	
  Section 803.

  	
  Collection of Indebtedness

  	
  80

  
	
  Section 804.

  	
  Remedies

  	
  80

  
	
  Section 805.

  	
  Allocation of Money Collected

  	
  81

  
	
  Section 806.

  	
  Limitation on Suits

  	
  82

  
	
  Section 807.

  	
  Unconditional Right of Holders to Receive Principal,
  Interest and VFN Fees

  	
  82

  
	
  Section 808.

  	
  Restoration of Rights and Remedies

  	
  82

  
	
  Section 809.

  	
  Rights and Remedies Cumulative

  	
  83

  
	
  Section 810.

  	
  Delay or Omission Not Waiver

  	
  83

  
	
  Section 811.

  	
  Control by Requisite Global Majority

  	
  83

  
	
  Section 812.

  	
  Waiver of Past Defaults

  	
  83

  
	
  Section 813.

  	
  Undertaking for Costs

  	
  84

  
	
  Section 814.

  	
  Waiver of Stay or Extension Laws

  	
  84

  
	
  Section 815.

  	
  Sale of Collateral

  	
  84

  
	
  Section 816.

  	
  Action on Notes

  	
  85

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX

  CONCERNING THE
  INDENTURE TRUSTEE

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 901.

  	
  Duties of the Indenture Trustee

  	
  86

  
	
  Section 902.

  	
  Certain Matters Affecting the Indenture Trustee

  	
  87

  
	
  Section 903.

  	
  Indenture Trustee Not Liable

  	
  88

  
	
  Section 904.

  	
  Indenture Trustee May Own Notes

  	
  89

  
	
  Section 905.

  	
  Indenture Trustee’s Fees and Expenses

  	
  89

  
	
  Section 906.

  	
  Eligibility Requirements for the Indenture Trustee

  	
  90

  
	
  Section 907.

  	
  Resignation and Removal of the Indenture Trustee

  	
  90

  
	
  Section 908.

  	
  Successor Indenture Trustee

  	
  91

  
	
  Section 909.

  	
  Merger or Consolidation of the Indenture Trustee

  	
  91

  
	
  Section 910.

  	
  Separate Indenture Trustees, Co-Indenture Trustees
  and Custodians

  	
  92

  
	
  Section 911.

  	
  Representations and Warranties

  	
  93

  
	
  Section 912.

  	
  Indenture Trustee Offices

  	
  94

  
	
  Section 913.

  	
  Notice of Event of Default

  	
  94

  



 


iii

















 


	
  ARTICLE X

  SUPPLEMENTAL
  INDENTURES

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1001.

  	
  Supplemental Indentures Not Creating a New
  Series Without Consent of Holders

  	
  95

  
	
  Section 1002.

  	
  Supplemental Indentures Not Creating a New
  Series with Consent of Holders

  	
  96

  
	
  Section 1003.

  	
  Execution of Supplemental Indentures

  	
  97

  
	
  Section 1004.

  	
  Effect of Supplemental Indentures

  	
  97

  
	
  Section 1005.

  	
  Reference in Notes to Supplemental Indentures

  	
  97

  
	
  Section 1006.

  	
  Issuance of Series of Notes

  	
  98

  
	
  Section 1007.

  	
  Intercreditor Agreement

  	
  99

  
	
   

  	
   

  	
   

  
	
  ARTICLE XI

  HOLDERS LISTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1101.

  	
  Issuer to Furnish Indenture Trustee Names and
  Addresses of Holders

  	
  100

  
	
  Section 1102.

  	
  Preservation of Information; Communications to
  Holders

  	
  100

  
	
   

  	
   

  	
   

  
	
  ARTICLE XII

  EARLY AMORTIZATION
  EVENTS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1201.

  	
  Early Amortization Events

  	
  101

  
	
   

  	
   

  	
   

  
	
  ARTICLE XIII

  MISCELLANEOUS PROVISIONS

  	
   

  
	
   

  	
   

  	
   

  
	
  Section 1301.

  	
  Compliance Certificates and Opinions

  	
  102

  
	
  Section 1302.

  	
  Form of Documents Delivered to Indenture
  Trustee

  	
  102

  
	
  Section 1303.

  	
  Acts of Holders

  	
  103

  
	
  Section 1304.

  	
  Inspection

  	
  103

  
	
  Section 1305.

  	
  Limitation of Rights

  	
  104

  
	
  Section 1306.

  	
  Severability

  	
  104

  
	
  Section 1307.

  	
  Notices

  	
  104

  
	
  Section 1308.

  	
  Consent to Jurisdiction

  	
  105

  
	
  Section 1309.

  	
  Captions

  	
  105

  
	
  Section 1310.

  	
  Governing Law

  	
  105

  
	
  Section 1311.

  	
  No Petition

  	
  106

  
	
  Section 1312.

  	
  General Interpretive Principles

  	
  106

  
	
  Section 1313.

  	
  WAIVER OF JURY TRIAL

  	
  106

  
	
  Section 1314.

  	
  Waiver of Immunity

  	
  106

  
	
  Section 1315.

  	
  Judgment Currency

  	
  107

  
	
  Section 1316.

  	
  Statutory References

  	
  107

  
	
  Section 1317.

  	
  Transactions Under Original Agreement

  	
  107

  



 


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  EXHIBIT A

  	
  Form of Non-Recourse Release

  	
   

  
	
  EXHIBIT B-1

  	
  Form of Transferor Certificate for Transfers to
  Qualified Institutional Buyers

  	
   

  
	
  EXHIBIT B-2

  	
  Form of Transferee Certificate for Transfers of
  Notes to Qualified Institutional Buyers

  	
   

  
	
  EXHIBIT B-3

  	
  Form of Transferee Certificate for Transfers of
  Notes to Institutional Accredited Investors

  	
   

  



 


v

















 


This Second Amended and Restated Indenture, dated as
of August 24, 2006 (as amended or supplemented from time to time as
permitted hereby, the “Indenture”), 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 (the “Indenture Trustee”) and individually as a Securities
Intermediary.


 


WITNESSETH:


 


WHEREAS, on the Initial Closing Date, the Issuer and
the Indenture Trustee entered into an Indenture, dated as of October 26,
2001 that was amended and restated as of December 15, 2003 (the “Original
Agreement”);


 


WHEREAS, the Issuer and the Indenture Trustee wish to
amend and restate the Original Agreement as of August 24, 2006 (the “Closing
Date”); and


 


NOW THEREFORE, in consideration of the mutual
agreements herein contained, each party agrees as follows for the benefit of
the other party, the Noteholders, each Series Enhancer and each Interest
Rate Hedge Provider.


 


GRANTING CLAUSE


 


To secure the payment of all Outstanding Obligations
and the payment and performance of all of the Issuer’s covenants and agreements
in this Indenture and all other Related Documents, the Issuer hereby grants,
assigns, conveys, mortgages, pledges, hypothecates and transfers to the
Indenture Trustee, for the benefit of Noteholders, any Series Enhancer and
any Interest Rate Hedge Provider (regardless of whether such Person ceases to
qualify as an Eligible Interest Rate Hedge Counterparty), a first priority
perfected security interest in and to all assets of the Issuer including all of
the Issuer’s right, title and interest in, to and under all of its assets and
properties, including, without limitation, all of the following, whether now
existing or hereafter created or acquired (i) all of the following:


 


(1) all Chattel Paper;


 


(2) all Contracts;


 


(3) all Documents;


 


(4) all General Intangibles;


 


(5) all Instruments;


 


(6) all Inventory;


 


(7) all Supporting Obligations;


 


(8) all Equipment;


 


(9) all Letter of Credit Rights;


 

















 


(10) all Deposit Accounts;


 


(11) all Goods;


 


(12) all Investment Property;


 


(13) all Accounts;


 


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


 


(15) to the extent not included above and without
limiting the foregoing, all Leases to the extent related to the Containers, and
all schedules, supplements, amendments, modifications, renewals, extensions,
and all guarantees and other credit support with respect to the foregoing, in
each case whether now owned or hereafter acquired and all amounts, rentals,
proceeds and other sums of money due and to become due under the Container
Related Agreements, including (in each case only to the extent related to the
Containers), without limitation, (a) all rentals, payments and other
monies, including all insurance payments and claims for losses due and to
become due to the Issuer under, and all claims for damages arising out of the
breach of, any Container Related Agreement; (b) the right of the Issuer to
terminate, perform under, or compel performance of the terms of the Container
Related Agreements; and (c) any rights of the Issuer in respect of any
guarantee of the Container Related Agreements and any subleases or assignments
permitted under the Container Related Agreements, in each case as they relate
to the Containers;


 


(16) all insurance proceeds of the Containers and the
other Collateral and all proceeds, including Sales Proceeds, of the voluntary
or involuntary disposition of the Containers and the other Collateral;


 


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


 


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


 


(19) subject to the terms and conditions set forth in
the Intercreditor Agreement, the Manager Collection Account and all of the
Gross Revenue allocable to the Containers from time to time on deposit in the
Manager Collection Account (through the pledge thereof by the Manager) and the
Proceeds thereof,


 


2














 


(ii) the Containers (including all Substitute
Containers acquired by the Issuer from time to time) and other Sold Assets
acquired by the Issuer from time to time, (iii) any Trust Account, the
Restricted Cash Account, the Manager Transition Account and any Series Account
and all cash and cash equivalents, Eligible Investments, Financial Assets,
Investment Property, Securities Entitlements and other instruments or amounts
credited or deposited from time to time in such accounts, (iv) the
Contribution and Sale Agreement, the Management Agreement, the Intercreditor
Agreement, any Interest Rate Hedge Agreement, and all other Related Documents, (v) all
Gross Income allocable to the Containers and (vi) all income, payments and
Proceeds of the foregoing.


 


All of the property described in this Granting Clause
is herein collectively called the “Collateral”.


 


Each of the Issuer, the Indenture Trustee, each Series Enhancer,
each Interest Rate Hedge Provider and, in acquiring a Note or interest therein,
each Noteholder is deemed to have agreed that the terms of the foregoing Grant
are subject in all respects to terms and conditions set forth in the
Intercreditor Agreement.


 


In furtherance of the foregoing, the Issuer hereby
appoints the Indenture Trustee as its designee for purposes of exercising any
power of attorney or right granted by the Manager pursuant to the Management
Agreement. In addition the Issuer hereby authorizes the Indenture Trustee, on
behalf of the Issuer, to prepare, execute and file any financing statements or
other documents required to effectuate the provisions of Section 604 of
this Indenture. The Indenture Trustee shall have no obligation to file any
financing statement or continuation statement unless it is directed to do so by
the Issuer or the related Control Party and it is provided with the financing
statement in form for filing.


 


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


 


3

















 


ARTICLE I


 


DEFINITIONS


 


Section 101.  Defined Terms.
Except as otherwise provided herein, all references to any agreement defined in
this Section 101 shall be deemed to include such agreement as the same may
from time to time be amended, supplemented or otherwise modified in accordance
with its terms and, where applicable, the terms of the other Related Documents.
All references to statutes (including the UCC), rules and regulations
shall be deemed to include such statutes, rules and regulations as the
same may be from time to time amended, supplemented or otherwise modified, in
each case unless otherwise specified herein. All definitions contained or
referred to herein shall be equally applicable to both the singular and plural
forms of the terms defined. All references to any Person shall include its
successors and permitted assigns. All references to “including” are not intended
to limit the generality of any description preceding such term and for purposes
hereof and of each Related Document the rule of ejusdem generis shall not be applicable to limit a general
statement following or referable to an enumeration of specific matters to
matters similar to those specifically mentioned.


 


Account: Any “account,” as such term is defined
in Section 9-102(a)(2) of the UCC.


 


Accumulated Depreciation: With respect to any Container, as of
any date of determination, an amount equal to the aggregate amount of
Depreciation Expense recorded with respect to such Container since the date
such Container became subject to a Lease.


 


Additional Series: One or more Series of Notes issued
by the Issuer following the Closing Date.


 


Advance Rate: The maximum percentage of outstanding
principal permitted to be made or maintained in proportion to the Asset Base
under the Indenture and any related Supplement.


 


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


 


Aggregate Net Book Value: As of any date of determination, an amount
equal to the sum of the then Net Book Values of all Eligible Containers then
not subject to a Direct Finance Lease.


 


Aggregate Net Book Value of Direct
Finance Lease Receivables: As of any date of determination, the sum of the then Net Book Values
of Direct Finance Lease Receivables of all Eligible Containers then subject to
a Direct Finance Lease.


 


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


 


4

















 


Aggregate TEU: The sum of TEUs of all Eligible
Containers then owned by the Issuer.


 


Ambac: Ambac Assurance Corporation.


 


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


 


Asset Base: As of any date of determination, an
amount equal to the sum of (a) the product of (i) eighty-five percent
(85%) and (ii) the sum, without duplication, of (x) the Aggregate Net
Book Value as of such date of determination and (y) the Aggregate Net Book
Value of Direct Finance Lease Receivables as of such date of determination, and
(b) the amount on deposit in the Restricted Cash Account on such date of
determination, after giving effect to all deposits to and withdrawals from the
Restricted Cash Account effected, or to be effected, on such date of
determination.


 


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


 


Asset Base Deficiency: The condition existing if, as of any
Payment Date, after giving effect to the proposed payments of Supplemental
Principal Payment Amount (to the extent of cash available to actually make such
payments) for all Series then Outstanding on such Payment Date, the then
Unpaid Principal Balance of all Series of Notes then Outstanding would
exceed the Asset Base. If such term is used in a quantitative context, the
amount of the Asset Base Deficiency shall be equal to the amount of such
excess.


 


Authorized Signatory: Any Person designated by written notice
delivered to the Indenture Trustee and any Series Enhancer as authorized
to execute documents and instruments on behalf of a Person.


 


Available Distribution Amount: This term shall have the meaning set
forth in Section 302(a) hereto.


 


Average Age: As of any Record Date, an amount equal
to the quotient of (a) the aggregate sum of (i) the number of
Eligible Containers, multiplied by (ii) the age of such Eligible
Containers, divided by (b) the aggregate number of all Eligible
Containers.


 


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


 


Base Rate: With respect to any Series for
which interest is calculated based on a variable rate of interest, the amount
identified as such in the related Supplement.


 


5

















 


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


 


Book-Entry Note: Each Note for so long as such Note is
registered in the name of the Depository or its nominee in accordance with the
terms and conditions of this Indenture.


 


Business Day: Any day other than a Saturday, a Sunday
or a day on which banking institutions in New York, New York or the city in
which the Corporate Trust Office is located, are authorized or are obligated by
law, executive order or governmental decree to be closed and (ii) for any
day relating to any computation or payment to be made based on One-Month LIBOR
or LIBOR (as such term is defined in any Supplement), any day on which dealings
in dollar deposits are carried on in the London Interbank Market.


 


Carlisle or CLI:
Container Leasing International, LLC (d/b/a Carlisle Leasing International,
LLC), a limited liability company organized under the laws of the state of New
York and its successors and permitted assigns.


 


Casualty Loss: Any of the following events with
respect to any Container: (a) the actual total loss of such Container, (b) the
Issuer’s or the Manager’s actual knowledge that such Container has become lost,
stolen or destroyed, seized, condemned or confiscated, (c) thirty (30)
days following the Issuer’s or Manager’s determination that such Container is
damaged beyond repair or permanently rendered unfit for use for any reason
whatsoever, or (d) if such Container is subject to a Lease Agreement, such
Container shall have been deemed under its Lease Agreement to have suffered a
casualty loss.


 


Casualty Proceeds: For any accounting period, all proceeds
received by the Issuer or the Manager on behalf of the owners of such related
Containers, from insurance or other sources, as a result of a Casualty Loss.


 


Chattel Paper: Any Lease (including any Direct Finance
Lease) or other “chattel paper,” as such term is defined in Section 9-102(a)(11)
of the UCC, arising out of or in any way related to the Containers and now
owned or hereafter acquired by the Issuer.


 


Class: With respect to any Series, all Notes within such Series having
the same rights to payment under the related Supplement.


 


CLI Credit Agreement: This term shall have the meaning set
forth in the Management Agreement.


 


CLI Funding: CLI Funding LLC, a limited liability
company, organized and existing under the laws of the State of Delaware.


 


CLI Limited Voting Right:  Any
consent, waiver, request or demand in respect of which 100% of the Noteholders
must consent pursuant to Section 1002(b) of the Indenture.


 


6

















 


CLI Party: (a) The Issuer, Seller or CLI or
any entity that, directly or indirectly, owns any Capital Stock of or “controls”
(within the meaning of the Exchange Act), the Issuer, the Seller or CLI or (b) any
other Affiliate of CLI, but excluding from this part (b) any Affiliate
consisting of an investment vehicle for which (i) Fortress Investment
Group LLC (“FIG”) or an Affiliate of FIG (provided in either case such Person
is registered as an investment adviser under the Investment Advisers Act of
1940, as amended (a “Fortress Registered Investment Adviser”)), or (ii) a
Fortress Investment Adviser Subsidiary, is the investment adviser (a “CLI
Investment Vehicle”); but provided FIG and its Affiliates collectively shall
own not more than ten (10%) percent of the Capital Stock of such CLI Investment
Vehicle. Notwithstanding the foregoing, a CLI Investment Vehicle shall be
deemed to be a CLI Party for purposes of any consent, waiver, request or demand
other than a CLI Limited Voting Right if, at the time of any requested consent,
waiver, request or demand, (x) Ambac shall not be the Control Party, other
than by reason of a Series Enhancer Default with respect to Ambac, with
respect to Notes representing more than 33.33% of the aggregate principal
balance of all Series then Outstanding (or, with respect to any Series of
VFNs prior to a Conversion Event, the Existing Commitment) (collectively, the “Aggregate
Note Interests”) or (y) FIG and its Affiliates (including, without
limitation, any CLI Investment Vehicle) shall collectively own or control Notes
representing 33.33% or more of the Aggregate Note Interests, and Ambac shall
not be the Control Party, other than by reason of a Series Enhancer
Default with respect to Ambac, with respect to more than 50% of the Aggregate
Note Interests.


 


Closing Date: August 24, 2006.


 


Code: The Internal Revenue Code of 1986, as amended, or
any successor statute thereto, and the regulations promulgated and rulings
issued thereunder.


 


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


 


Collections: With respect to any Collection Period,
Gross Revenue allocated or allocable to the Containers pursuant to the
provisions of the Management Agreement and the Intercreditor Agreement.


 


Collection Period: The period from the first day of the
calendar month immediately preceding the month in which such Payment Date
occurs through and including the last day of such calendar month.


 


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


 


Concentration Limits: This term shall have the meaning set
forth in the Contribution and Sale Agreement.


 


7

















 


Container: Any refrigerated or other type of
marine or intermodal container and any generator sets owned by the Issuer.


 


Container Related Agreement: Any agreement relating to (i) the
Containers or (ii) the use or management of such Containers, whether in
existence on any Series Issuance Date or thereafter acquired, including,
but not limited to, all Leases, the Management Agreement, the Contribution and
Sale Agreement and all Chattel Paper, in each case as it relates to the
Containers.


 


Container Representations and
Warranties: This
term shall have the meaning set forth in the Contribution and Sale Agreement.


 


Container Revenue: All Gross Revenue allocated or
allocable to the Containers, excluding the Sales Proceeds, Casualty Proceeds,
Indemnification Proceeds and Miscellaneous Issuer Proceeds allocable to the
Containers, in each case pursuant to the terms of the Intercreditor Agreement.


 


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


 


Contract Payment: The minimum periodic contractual
payment to be made by the Lessee for the use of the related equipment.


 


Contribution and Sale Agreement: The Second Amended and Restated
Contribution and Sale Agreement, dated as of August 24, 2006, between
Carlisle and the Issuer, as such agreement may be amended, modified or
supplemented from time to time in accordance with its terms.


 


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


 


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


 


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


 


Conversion Event: This term shall have the meaning set
forth in the Supplement for the related Series.


 


Corporate Trust Office: The principal office of the Indenture
Trustee at which at any particular time its corporate trust business shall be
administered, which office shall initially be located at U.S. Bank Corporate
Trust Services, EP-MN-WS3D, 60 Livingston Avenue, St. Paul, Minnesota,
55107-2292, Attn: Structured Finance/CLI Funding LLC.


 


8

















 


Corporate Trust Officer: Any Treasurer, Assistant Treasurer,
Assistant Trust Officer, Trust Officer, Assistant Vice President, Vice
President or Senior Vice President of the Indenture Trustee or any other
officer who customarily performs functions similar to those performed by the
Persons who at the time shall be such officers to whom any corporate trust
matter is referred because of their knowledge of and familiarity with the
particular subject.


 


Deal Agent: With respect to any Series of
VFNs, the Person(s) identified as such in the related Supplement for such Series of
VFNs.


 


Default Fees: The incremental interest specified in
the related Supplement payable by the Issuer resulting from (i) the
failure of the Issuer to pay in full on any Payment Date any accrued and unpaid
interest, fees or indemnities on any Series of Notes then Outstanding, or (ii) the
failure of the Issuer to pay in full on the Legal Final Maturity Date of any Series the
then Unpaid Principal Balance of the related Series of Notes, or (iii) the
failure of the Issuer to pay the then Unpaid Principal Balance of all Series of
Notes then Outstanding upon the occurrence of an Event of Default and the
acceleration of the Notes in accordance with the provisions of Section 802
hereof.


 


Defaulted Lease: Any Lease as to which any of the following
events or conditions apply:


 


(i) the Manager has
or should have determined in accordance with the Services Standard that all or
any regularly scheduled rental payments or end of term payments owing pursuant
to the terms of such Lease are wholly or partially uncollectible;


 


(ii) any regularly
scheduled rental payment or end of term payment (or portion thereof) owing
pursuant to the terms of such Lease is more than one hundred twenty (120) days
delinquent (measured from its contractual due date);


 


(iii) both of the
following shall have occurred: (a) the Lessee under such Lease is the
subject of an Insolvency Proceeding and (b) the Lessee shall not be
current in its obligations under such Lease (including, but not limited to
payment of Contract Payments) on the ninetieth (90th)
day after the commencement of such Insolvency Proceeding; or


 


(iv) the Manager has
repossessed the equipment or is otherwise exercising remedies.


 


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


 


Deposit Accounts: This term shall have the meaning set
forth in Section 9-102(a)(29) of the UCC.


 


Depository: The Depository Trust Company until a
successor depository shall have become such pursuant to the applicable provisions
of this Indenture and thereafter “Depository” shall mean or include each Person
who is then a Depository thereunder. For purposes of this Indenture, unless
otherwise specified pursuant to Section 202, any successor Depository
shall, at


 


9

















 


the time of its designation and at all times while it
serves as Depository, be a clearing agency registered under the Exchange Act,
and any other applicable statute or regulation.


 


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


 


Depreciation Expense: Depreciation Expense for a Container
shall be (x) calculated utilizing a depreciation policy which provides for
calculation in accordance with daily depreciation over (i) a fifteen (15)
year useful life (or 5,479 days) to an estimated residual value of ten percent
(10%) of the Original Equipment Cost of such Container (excluding generator
sets) and (ii) a twelve (12) year useful life (or 4,383 days) to an
estimated residual value of ten percent (10%) of the Original Equipment Cost of
generator sets and (y) any other reduction in asset value not included in
clause (x) in accordance with GAAP. For purposes of this definition “Original
Equipment Cost” shall mean an amount equal to (i) the vendor’s or
manufacturer’s, as applicable, invoice price plus (ii) reasonable and
customary out-of-pocket inspection, transport, and initial positioning costs
that (A) were necessary and directly related to putting such Container in
initial service (subject to limitations) and (B) permitted and/or required
to be capitalized in accordance with GAAP plus (iii) reasonable acquisition
fees and other fees not to exceed to 2.5% of the amount described in clause
(i).


 


Determination Date: The third Business Day prior to any
Payment Date.


 


Direct Finance Lease: A lease that satisfies the criteria for
classification as a capital lease pursuant to GAAP, including under Financing
Accounting Standards Board Statement No. 13, as amended.


 


Director Services Agreement: The Services and Indemnity Agreement,
dated as of October 26, 2001, among the Manager, the Issuer, the Director
Services Provider and all amendments and supplements thereto.


 


Director Services Provider: Global Securitization Services, LLC and
its permitted successors and assigns.


 


Discount Rate: For purposes of determining the Net
Book Value of Direct Finance Lease Receivables as of any date of determination,
an interest rate per annum equal to the greater of:


 


	
   

  	
  (i)

  	
  an amount equal to the sum of (a) the fixed
  rate of interest payable by the Issuer to an Interest Rate Hedge Provider
  under the related Interest Rate Hedge Agreement, plus (b) one percent
  (1%); or

  



 


	
   

  	
  (ii)

  	
  an amount equal to the Effective Annual Yield of
  such Direct Finance Lease.

  



 


Document: Any “document,” as such term is defined
in Section 9-102(a)(30) of the UCC.


 


Dollar or $:
The lawful currency of the United States of America.


 


10

















 


Dynamar Rating: With respect to a Person, the most
recently available credit rating assigned to such Person by Dynamar B.V., a
company organized under the laws of the Kingdom of the Netherlands. If Dynamar
B.V. shall cease to be in existence or is no longer engaged in the business of
issuing credit ratings, the Issuer, the Indenture Trustee, each Series Enhancer
and the Lead Deal Agent shall choose a mutually acceptable alternative for this
function.


 


Early Amortization Event: The occurrence of any of the events or
conditions set forth in Section 1201 of this Indenture or any Supplement
issued pursuant thereto.


 


Effective Annual Yield: The annualized interest rate on a Lease
computed using compound interest techniques.


 


Eligible Account: Either (a) a segregated account
with an Eligible Institution (in its capacity as Securities Intermediary of the
Indenture Trustee), or (b) a segregated trust account with the corporate
trust department of the Indenture Trustee (in its capacity as Securities
Intermediary of the Indenture Trustee) or any other depository institution
organized under the laws of the United States or any of the states thereof (in
its capacity as Securities Intermediary of the Indenture Trustee), including
the District of Columbia (or any United States branch of a non-United States
bank), and acting as a trustee for funds deposited in such account, so long as
the senior securities of such depository institution shall have a credit rating
from each Rating Agency in one of its generic credit rating categories no lower
than “A2” or “A”, as the case may be, or (c) any account held with the
Indenture Trustee (in its capacity as Securities Intermediary of the Indenture
Trustee) provided that the institution then acting as Indenture Trustee is an
Eligible Institution.


 


Eligible Container: Any Container which, when considered
with all other Containers, complies with each of the following requirements as
of each Record Date:


 


(a) Concentration Limits. Such Container,
when considered with all other Containers then owned by the Issuer (including
those Containers designated to be transferred to the Issuer), as the case may
be, satisfies the Concentration Limits;


 


(b) Defaulted Leases. Such Container is not
then subject to a Defaulted Lease;


 


(c) Container Representations and Warranties.
The Container complies with the Container Representations and Warranties as of
the most recent Record Date;


 


(d) Casualty Losses. The Container shall
not have suffered a Casualty Loss;


 


(e) Container Lessees. If a Container is
then subject to a Lease, such Container is leased to a Lessee that is
underwritten in accordance with the Manager’s then existing credit underwriting
guidelines;


 


(f) Container Type. The Container must be
of a Permissible Container Type;


 


(g) Containers Not Yet Depreciated. The
TEU of such Container shall not, when combined with the Aggregate TEU, cause
the aggregate TEU of all Containers which have


 


11

















 


not been placed in service, and for which no
Depreciation Expense has yet been deducted, to exceed one percent (1%) of the
Aggregate TEU; and


 


(h) OFAC. Such Container is then not on
lease to a Prohibited Person, or to the actual knowledge of the Issuer or the
Manager, is not subleased to a Prohibited Person or located, operated or used
in a Prohibited Jurisdiction unless it is used by the government of the United
States or another Person, either (i) pursuant to a license granted by the
Office of Foreign Assets Control, or (ii) pursuant to an exemption from
such license requirements issued by the Office of Foreign Assets Control.


 


Eligible Institution: Any one or more of the following
institutions: (i) the corporate trust department of the Indenture Trustee (in
its capacity as Securities Intermediary of the Indenture Trustee), or (ii) a
depository institution organized under the laws of the United States of America
or any one of the states thereof or the District of Columbia (or any United
States branch of a non-United States bank), (a) which has both (x) a
long-term unsecured senior debt rating of not less than “A” by Standard &
Poor’s and “A2” by Moody’s, and (y) a short-term unsecured senior debt
rating rated in the highest rating category by each Rating Agency and (b) whose
deposits are insured by the Federal Deposit Insurance Corporation.


 


Eligible Interest Rate Hedge
Counterparty: One
of the following: (a) any bank that has a short-term unsecured debt rating
of at least “A-1” by Standard & Poor’s and “P-1” by Moody’s (or their
equivalent) and a long-term unsecured debt rating of at least “A+” by Standard &
Poor’s and “A2” by Moody’s (or their equivalent) or (b) any other Person
acceptable to the Requisite Global Majority with the prior satisfaction of the Rating
Agency Condition.


 


Eligible Investments: One or more of the following:


 


(i) direct
obligations of, and obligations fully guaranteed as to the timely payment of
principal and interest by, the United States of America or obligations of any
agency or instrumentality thereof when such obligations are backed by the full
faith and credit of the United States of America;


 


(ii) certificates of
deposit and bankers’ acceptances (that shall each have an original maturity of
not more than 365 days) of any depository institution or trust company,
provided that the long-term unsecured senior debt obligations of such
depository institution or trust company at the date of acquisition thereof have
been rated at least “Aa3” by Moody’s and “AA-” by Standard & Poor’s,
or the short-term unsecured senior debt obligations of such depository
institution or trust company are rated by each Rating Agency in its highest
rating category;


 


(iii) commercial
paper (having original maturities of not more than 270 days) of any corporation
(other than the Issuer), incorporated under the laws of the United States of
America or any state thereof which on the date of acquisition has been rated by
each Rating Agency in the highest short-term unsecured commercial paper rating
category;


 


12














 


(iv) any money
market fund that has been rated by each Rating Agency, in its highest rating
category (including any designations of “plus” or “minus”) or that invests
solely in Eligible Investments;


 


(v) eurodollar
deposits (which shall each have an original maturity of not more than 365 days)
of any depository institution or trust company, provided that the long-term
unsecured senior debt obligations of such depository institution or trust
company at the date of acquisition thereof have been rated “AA-” by Standard &
Poor’s or “Aa3” by Moody’s, or the short-term unsecured senior debt obligations
of such depository institution or trust company are rated by each Rating Agency
in its highest rating category; and


 


(vi) other
obligations or securities that are acceptable to the related Series Enhancers
and each Rating Agency as an Eligible Investment hereunder and will not result
in a reduction or withdrawal in the then current rating of the Notes as
evidenced by a letter to such effect from each Rating Agency and the Series Enhancers.


 


Enhancement Agreement: Any agreement, instrument or document,
including any Policy and the Premium Letter, governing the terms of any Series Enhancement
or pursuant to which any Series Enhancement is issued or outstanding.


 


Equipment: This term shall have the meaning set
forth in Section 9-102(a)(33) of the UCC.


 


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


 


Event of Default: With respect to any Series, the
occurrence of any of the events or conditions set forth in Section 801 of
the Indenture.


 


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


 


Existing Commitment: With respect to any Series, the
aggregate Initial Commitment to issue Notes, consisting of one or more Classes,
expressed as a Dollar amount, as set forth in the related Supplement and
subject to reduction or increase from time to time in accordance with the
related Supplement.


 


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


 


Fair Market Value: An amount equal to the value which would
be obtained in an arm’s length sales transaction between an informed and
willing purchaser under no compulsion to buy and an informed and willing seller
under no compulsion to sell.


 


Financial Assets: This term shall have the meaning set
forth in Section 8-102(a)(9) of the UCC.


 


Fitch:  Fitch, Inc.


 


13

















 


Fortress Investment Adviser
Subsidiary: Any
direct or indirect wholly-owned Subsidiary of a Fortress Registered Investment
Adviser, provided (x) the CLI Investment Vehicle in respect of which such
Subsidiary is an investment adviser is listed under Item 7B on the Form ADV
for such registered investment adviser and (y) such Subsidiary is a “Related
Person” (as defined in the Form ADV) of such registered investment
adviser.


 


General Intangibles: Any “general intangibles,” as such term
is defined in Section 9-102(a)(42) of the UCC.


 


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


 


Global Note: Either a Rule 144A Global Note or
a Public Global Note.


 


Goods: The term shall have the meaning set forth in Section 9-102(a)(44)
of the UCC.


 


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


 


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


 


Gross Revenue: All revenue (without reduction for
expenses or costs), calculated on a cash basis in accordance with GAAP, earned
in connection with the ownership, use and/or operation of the Manager Fleet,
including, but not limited to, rental, handling, location revenue, damage
protection, and other rental-related charges arising from the leasing of such
Manager Fleet, in each case allocated or allocable to the Containers, including
any Miscellaneous Issuer Proceeds, Casualty Proceeds, Indemnification Proceeds,
and Sales Proceeds (as set forth in the Intercreditor Agreement).


 


Holder: See Noteholder.


 


Indebtedness: With respect to any Person, means,
without duplication, (a) any obligation of such Person for borrowed money,
including, without limitation, (i) any obligation incurred through the
issuance and sale of bonds, debentures, notes or other similar debt
instruments, and (ii) any obligation for borrowed money which is
non-recourse to the credit of such Person but which is secured by any asset of
such Person, (b) any obligation of such Person on account of deposits or
advances, (c) any obligation of such Person for the deferred purchase
price of any property or services, except accounts payable arising in the
ordinary course of such Person’s business, (d) any obligation of such
Person as Lessee under a capital lease, (e) any Indebtedness of another
secured by a Lien on any asset of such Person, whether or not such Indebtedness
is


 


14

















 


assumed by such Person, (f) any obligation in
respect of interest rate or foreign exchange hedging agreements; (g) liabilities
and obligations of others for which such Person is directly or indirectly
liable, by way of guaranty (whether by direct guaranty, suretyship, discount,
endorsement, take-or-pay agreement, agreement to purchase or advance or keep in
funds or other agreement having the effect of a guaranty) and (h) any
obligation of such Person to reimburse the issuer of any letter of credit
issued for the account of such Person upon which a draw has been made.


 


Indemnification Proceeds: For any accounting period, all proceeds
received by the Manager from Lessees pursuant to the Leases, insurance or other
sources, including amounts received from the insurance specified in the
Management Agreement, for indemnification of liability and loss with respect to
the Containers, excluding Casualty Proceeds, Sales Proceeds and Miscellaneous
Issuer Proceeds (in each case allocable to the Containers as set forth in the
Intercreditor Agreement).


 


Indemnitee or Indemnified
Person: Any Person that is identified in the applicable Supplement
as being entitled to indemnification.


 


Indenture: This Second Amended and Restated
Indenture, dated as of August 24, 2006, between the Issuer and the Indenture
Trustee and all amendments hereof and supplements hereto, including, with
respect to any Series or Class, the related Supplement.


 


Indenture Trustee: The Person performing the duties of the
Indenture Trustee under this Indenture, initially U.S. Bank National
Association.


 


Indenture Trustee Fees: This term is defined in Section 905
of this Indenture.


 


Indenture Trustee Indemnified
Amounts: Amounts
for which the Issuer shall indemnify and hold harmless the Indenture Trustee,
comprised of any loss, liability, damage claim or expense incurred without
negligence or willful misconduct on the part of the Indenture Trustee’s
officers, directors and employees, arising out of or in connection with the
acceptance or administration of this Indenture, including the costs and
expenses of defending itself both individually and in its representative
capacity against any claim or liability in connection with the exercise or
performance of any of its powers or duties under this Indenture.


 


Independent Accountants: Either (i) any “Big 4” accounting
firm or (ii) any other independent certified public accountants of
internationally recognized standing selected by the Issuer and acceptable to
each Lead Deal Agent and the Requisite Global Majority.


 


Independent Person: A natural person who at the date of his
appointment as a manager, director or officer possesses the following
qualifications: (a) has prior experience as an independent director for a
company, the corporate instruments of which require the unanimous consent of
all independent directors thereof before such corporation could consent to the
institution of bankruptcy or insolvency proceedings against it or could file a
petition seeking relief under any applicable law; and (b) has at least
three years of employment experience with and is employed by one or more
entities that provide, in the ordinary course of their respective businesses,
advisory, management or placement services to issuers of securitization or
structured finance instruments, agreements or securities; provided always that such individual at
the date of


 


15

















 


his appointment as such manager, director or officer,
or at any time in the preceding five years, or during such person’s tenure
shall not be: (i) an employee, director, shareholder, manager, partner or
officer of Carlisle or an Affiliate thereof (other than such person’s service
as an independent director or manager of Carlisle or an Affiliate thereof); (ii) a
customer or supplier of Carlisle or an Affiliate thereof; (iii) a
beneficial owner at the time of such individual’s appointment as an independent
manager, or at any time thereafter while serving as an independent manager, of
more than 2% of the voting securities of Carlisle or an Affiliate thereof; (iv) affiliated
with a significant customer, supplier or creditor of Carlisle or an Affiliate
thereof; (v) a party to any significant personal service contracts with
Carlisle or an Affiliate thereof; or (vi) a member of the immediate family
of a person described in (i) or (ii) above and provided further
that an Independent Person may serve in a similar capacity for other special
purpose entities formed by Carlisle or its Affiliates; provided however, a
person elected by Global Securitization Services, LLC or any other similar
professional service provider shall be an “Independent Person” regardless of
whether such person is, or is affiliated with or related to, a customer or
supplier of Carlisle. No resignation or removal of an Independent Person shall
be effective until a successor Independent Person has been elected to replace
such Independent Person.


 


Initial Closing Date: October 26, 2001.


 


Initial Commitment: With respect to any Series, the
aggregate initial commitment, expressed as a Dollar amount, to purchase up to a
specified principal balance of all Classes of such Series, which commitment
shall be set forth in the related Supplement.


 


Initial Principal Balance: For any Series, the amount set forth in
the related Supplement.


 


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


 


Insolvency Proceeding: Any Proceeding under any applicable
Insolvency Law.


 


Instruments: Any “instrument,” as such term is
defined in Section 9-102(a)(47) of the UCC.


 


Insurance Agreement: The amended and restated insurance and
indemnity agreement, dated as of August 24, 2006, by and among the Issuer,
CLI, the Indenture Trustee and Ambac.


 


Intercreditor Agreement: The Second Amended and Restated
Intercreditor Collateral Agreement, dated as of August 24, 2006, by and
among Carlisle and one or more of its Affiliates and various financial
institutions named therein, as such agreement has been and may be amended,
modified or supplemented from time to time in accordance with its terms.


 


Interest Accrual Period: The period beginning with, and
including, a Payment Date and ending on and including the day before the next
succeeding Payment Date; provided, however,
that with respect to the Series 2006-1 Notes, the initial Interest Accrual
Period will commence on the Closing Date.


 


16

















 


Interest Rate Hedge Agreement: An ISDA interest rate swap or cap
agreement between the Issuer and an Interest Rate Hedge Provider named therein,
including any schedules and confirmations prepared and delivered in connection
therewith, each as reasonably acceptable to the Requisite Global Majority,
pursuant to which (i) the Issuer will receive payments from or make
payments to the Interest Rate Hedge Provider based on One-Month LIBOR and (ii) recourse
by the Interest Rate Hedge Provider to the Issuer is limited to the Available
Distribution Amount which pursuant to the terms of this Indenture is available
for such purpose.


 


Interest Rate Hedge Provider: Any Eligible Interest Rate Hedge
Counterparty to an Interest Rate Hedge Agreement with the Issuer together with
its subrogee. An Eligible Interest Rate Hedge Counterparty that has entered
into an Interest Rate Hedge Agreement but thereafter ceases to meet the criteria
set forth in the definition of Eligible Interest Rate Hedge Counterparty shall
continue to be an Interest Rate Hedge Provider until it is terminated or
replaced under the applicable Interest Rate Hedge Agreement.


 


Inventory: Any “inventory” as such term is defined
in Section 9-102(a)(48) of the UCC.


 


Investment: When used in connection with any
Person, any investment by or of that Person, whether by means of purchase or
other acquisition of securities of any other Person or by means of loan,
advance, capital contribution, guaranty or other debt or equity participation
or interest, or otherwise, in any other Person, including any partnership and
joint venture interests of such Person in any other Person. The amount of any
Investment shall be the original principal or capital amount thereof less all
returns of principal or equity thereon (and without adjustment by reason of the
financial condition of such other Person) and shall, if made by the transfer or
exchange of property other than cash, be deemed to have been made in an
original principal or capital amount equal to the fair market value of such
property.


 


Investment Property: The term shall have the meaning set
forth in Section 9-102(a)(49) of the UCC.


 


Issuer: CLI Funding LLC, a limited liability
company organized and existing under the laws of the state of Delaware.


 


Issuer Expenses: For any Collection Period, overhead and
all other direct, out-of-pocket, reasonable costs and expenses of the Issuer
(other than expenses paid pursuant to the Management Agreement and any
Management Fee) payable during such Collection Period (including costs and
expenses permitted to be paid to or by the Manager in connection with the
conduct of the Issuer’s business, but excluding Operating Expenses and other
costs and expenses required to be paid by the Manager under the Management
Agreement), in each case determined on a cash basis, including but not limited
to the following:


 


	
   

  	
  1.

  	
  administration expenses;

  
	
   

  	
   

  	
   

  
	
   

  	
  2.

  	
  accounting and audit expenses of the Issuer;

  
	
   

  	
   

  	
   

  
	
   

  	
  3.

  	
  premiums for liability, casualty, fidelity,
  directors and officers and other insurance;

  



 


17

















 


	
   

  	
  4.

  	
  directors’ fees and expenses;

  
	
   

  	
   

  	
   

  
	
   

  	
  5.

  	
  legal fees and expenses;

  
	
   

  	
   

  	
   

  
	
   

  	
  6.

  	
  other professional fees;

  
	
   

  	
   

  	
   

  
	
   

  	
  7.

  	
  taxes (including personal or other property taxes
  and all sales, value added, use and similar taxes);

  
	
   

  	
   

  	
   

  
	
   

  	
  8.

  	
  taxes imposed in respect of any and all issuances of
  the Notes; and

  
	
   

  	
   

  	
   

  
	
   

  	
  9.

  	
  surveillance fees assessed by the Rating Agencies.

  



 


Notwithstanding the foregoing, Issuer Expenses shall
not include (1) depreciation or amortization on the Containers and (2) principal,
interest and Premium, if any, payments on the Series of Notes.


 


Lead Deal Agent: With respect to a Series of VFNs,
the Person identified (if any) as such in the related Supplement.


 


Lease or Lease Agreement:
Each and every installment sales agreement, equipment lease or rental agreement
(including progress payment authorizations) to which a Container is subject and
shall include (1) all rental payments to be made by the Lessee thereunder,
(2) all rights of the lessor thereunder, and (3) any and all
amendments, renewals or extensions thereof.


 


Lease Custodial Transfer: This term shall have the meaning set
forth in the Management Agreement.


 


Legal Final Maturity Date: With respect to any Series, the date
set forth in the related Supplement on which the Unpaid Principal Balance of,
and accrued interest on, the Notes of such Series then Outstanding must be
paid in full.


 


Lessee: Each user that leases a Container
pursuant to a Lease Agreement.


 


Letter-of-Credit Right:  This
term shall have the meaning set forth in Section 9-102(a)(51) of the UCC.


 


LIBOR Determination Date: The date that is two Business Days
prior to the first day of any Interest Accrual Period.


 


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


 


List of Containers:  This
term shall have the meaning set forth in the Contribution and Sale Agreement.


 


18

















 


Long-Term Interest Coverage Ratio: On any Record Date or date of
determination, the ratio (expressed as a percentage) calculated according to
the following formula:


 


	
   

  	
  LTICR

  	
  =

  	
  TCC - FEES

  	
   

  
	
   

  	
   

  	
   

  	
  INT

  	
   

  



 


	
  Where:

  	
  LTICR

  	
  =

  	
  Long-Term Interest Coverage Ratio;

  
	
   

  	
  TCC

  	
  =

  	
  the total Collections during the twelve (12) month
  period ending on the most recent Record Date;

  
	
   

  	
  FEES

  	
  =

  	
  the amount of the Issuer Expenses, the Management
  Fee, the Transition Agent Fees and the Indenture Trustee Fees paid during the
  twelve (12) month period ending on the most recent Record Date;

  
	
   

  	
  INT

  	
  =

  	
  (A) the sum of (i) the Premium, all
  interest, VFN Fees and other amounts due to the Noteholders of all Series of
  Notes then Outstanding and the Series Enhancer and (ii) payments
  due under any Interest Rate Hedge Agreement (excluding termination payments),
  less (B) payments received under any Interest Rate Hedge Agreement
  (excluding termination payments); in each case during the twelve (12) month
  period ending on the most recent Record Date.

  



 


Management Agreement: The Second Amended and Restated
Management Agreement, dated as of August 24, 2006, entered into by and
between the Manager and the Issuer, as such agreement shall be amended,
supplemented or modified from time to time in accordance with its terms.


 


Management Fee: This term shall have the meaning set
forth in the Management Agreement.


 


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


 


Manager: The Person performing the duties of the
Manager under the Management Agreement; initially, CLI.


 


Manager Advances: This term shall have the meaning set
forth in the Management Agreement.


 


Manager Collection Account: An account established and maintained
pursuant to the Intercreditor Agreement with a bank satisfactory to the
Requisite Global Majority and the Rating Agencies, into which the Manager will
direct (i) all payments from Lessees, (ii) all Sale Proceeds, (iii) all
Casualty Proceeds and (iv) all other proceeds and Gross Revenues related
to the Containers including Miscellaneous Issuer Proceeds and Indemnification
Proceeds.


 


19

















 


Manager Default: The occurrence of any of the events or
conditions set forth in Section 10.01 of the Management Agreement after
giving effect to any expressly applicable notice and grace periods contained in
such Section.


 


Manager Fleet: The fleet of containers owned and/or
managed by the Manager, including the Containers.


 


Manager Report: This term shall have the meaning set
forth in the Management Agreement.


 


Manager Termination Notice: A written notice to be provided to the
Manager pursuant to Section 405 of this Indenture and Section 10.02
of the Management Agreement.


 


Manager Transition Account: An account established pursuant to the
Manager Transition Agreement, initially unfunded, into which amounts shall in
certain circumstances be deposited and used solely to pay Transition Costs.


 


Manager Transition Agreement: The Manager Transition Agreement, dated
as of December 15, 2003, entered into by and between the Manager, the
Issuer, the Indenture Trustee and the Transition Agent (as such agreement shall
be amended, supplemented or modified from time to time in accordance with its
terms).


 


Manager Transition Amount: One of the following: (a) if the
Consolidated Tangible Net Worth is, and has been for the previous three
calendar months, greater than or equal to $200,000,000, zero or (b) if the
Consolidated Tangible Net Worth is, or has been during the three preceding
calendar months, less than $200,000,000, then $1,000,000.


 


Managing Officer: Any representative of the Manager
involved in, or responsible for, the management of the day-to-day operations of
the Issuer and the administration and servicing of the Containers and the other
Collateral whose name appears on a list of managing officers furnished to
Issuer, each Series Enhancer and the Indenture Trustee by the Manager, as
such list may from time to time be amended.


 


Material Adverse Change: Any set of circumstances or events
which (a) has or could reasonably be expected to have any material adverse
effect whatsoever upon the validity or enforceability of any Related Document
or the security for any of the related Notes, (b) is or could reasonably
be expected to be material and adverse to the condition (financial or
otherwise), properties or business operations of the Issuer, Seller or Manager,
individually or taken together as a whole, (c) materially impairs or could
reasonably be expected to materially impair the ability of the Issuer, Seller
or Manager to perform its obligations under the Related Documents or (d) materially
impairs or could reasonably be expected to materially impair the ability of the
Indenture Trustee or the Series Enhancer to enforce any of its or their
legal rights or remedies pursuant to the Related Documents.


 


Minimum Principal Payment Amount: This term shall have the meaning set
forth in the related Supplement.


 


20

















 


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


 


Miscellaneous Issuer Proceeds: The sum of amounts received by the
Manager (i) from the manufacturers or sellers of Containers for breach of
sale warranties relating thereto, and (ii) in payment or settlement of any
claims, losses, disputes or Proceedings relating to the Containers, including
insurance proceeds from the insurance specified in the Management Agreement for
damage to the Containers; provided, however,
Miscellaneous Issuer Proceeds shall not include Sales Proceeds, Casualty
Proceeds or Indemnification Proceeds.


 


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


 


Net Book Value: With respect to a Container that is not
subject to a Direct Finance Lease, as of any date of determination, an amount
equal to the Original Equipment Cost of such Container less the Accumulated
Depreciation of such Container as of such date of determination, calculated
utilizing the depreciation policy described in the definition of Depreciation
Expense.


 


Net Book Value of Direct Finance
Lease Receivables:
As of any date of determination, with respect to any Eligible Container that is
then subject to an eligible Direct Finance Lease, an amount in Dollars equal to
the present value of the remaining Contract Payments becoming due under such
Direct Finance Lease after such date of determination, discounted monthly at
one-twelfth of the applicable Discount Rate; provided,
however, that (i) the Net Book Value of Direct Finance Lease
Receivables of (A) any Direct Finance Lease that is a Defaulted Lease, or (B) a
Direct Finance Lease that has been repurchased or is required to be repurchased
by the Seller shall, in each case, be equal to zero, and (ii) with respect
to any Contract Payment that remains unpaid for more than 30 days (measured
from its contractual due date), such Contract Payment shall be deemed to have a
value of zero for purposes of calculating the Net Book Value of Direct Finance
Lease Receivables of such Direct Finance Lease.


 


Net Operating Income: This term shall mean the excess, if
any, of (x) the Gross Revenues allocable or relating to the Containers
owned by the Issuer in any calendar month, less (y) an amount up to the
Management Fee.


 


Note Interest Payment: This term shall have the meaning set
forth in the related Supplement (as such definition may be modified to
exclusively relate to a specific Series (e.g. Series 2006-1 Note
Interest Payment)).


 


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


 


Note Principal Balance:  This
term shall have the meaning set forth in the related Supplement.


 


Note Purchase Agreement: Any underwriting agreement or other
purchase agreement for the Notes of any Series or Class.


 


21

















 


Note Register: The register which shall provide for
the registration and transfer of the Notes and is maintained by the Indenture
Trustee pursuant to Section 205 of this Indenture.


 


Note Registrar: The Person acting as a note registrar pursuant
to Section 205(a) hereof, initially the Indenture Trustee.


 


Noteholder or Holder:  The
Person in whose name a Note is registered in the Note Register, except that,
solely for the purposes of giving any consent, waiver, request, or demand the
interest evidenced by any Note registered in the name of a CLI Party or Person
known to be a CLI Party by the Indenture Trustee shall not be taken into
account in determining whether the requisite percentage of the Unpaid Principal
Balance of the Outstanding Notes necessary to effect any such consent, waiver,
request, or demand is represented; provided that, in determining whether the
Indenture Trustee will be protected in relying on any such consent, waiver,
request, or demand, only such Notes as a Responsible Officer of the Indenture
Trustee knows to be so owned shall be so disregarded.


 


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


 


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


 


One-Month LIBOR: For any Interest Accrual Period, the
rate per annum, determined by the Indenture Trustee and notified in writing by
the Indenture Trustee to the Manager, which is the arithmetic mean (rounded to
the nearest 1/100 of 1%) of the offered rates for Dollar deposits having a
maturity of one month commencing on the first day of such Interest Accrual
Period that appears on the Telerate British Bankers Assoc. Interest Settlement
Rates Page (defined below) at approximately 11:00 a.m., London time
on the LIBOR Determination Date. As used herein, “Telerate British Bankers Assoc. Interest Settlement Rates Page”
means the display designated as Page 3750 on the Telerate System
Incorporated Service (or such other page as may replace such page on
such service for the purpose of displaying the rates at which Dollar deposits
are offered by leading banks in the London interbank deposit market), as
reported by Bloomberg Financial Markets Commodities News (or by another source
selected by the Indenture Trustee and notified by the Indenture Trustee to the
Manager). If the Telerate Page 3750 is not available, then One-Month LIBOR
shall be the rate determined by the Indenture Trustee (such determination,
absent manifest error, to be conclusive and binding on all parties hereto and
their assignees) as of two Business Days prior to the date of such
determination as the rate at which deposits in immediately available funds in
Dollars are being, have been, or would be offered or quoted by the Indenture
Trustee to major banks in the applicable interbank market for Eurodollar
deposits at or about 11:00 A.M. (New York City time) on the Business Day
that is the second Business Day immediately preceding the date of such
determination for delivery for a term equal to such Interest Accrual Period.


 


Operating Expenses: Assorted direct operating expenses and
overhead expenses (as described in the Intercreditor Agreement) identified or
allocated to each container in the Manager Fleet in accordance with the
Intercreditor Agreement.


 


22

















 


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


 


Original Equipment Cost:  With
respect to any Container, an amount equal to (A) with respect to any
Container owned by the Issuer on the Closing Date, the purchase price allocated
to such Container by the Issuer in the acquisition of such Container, based on
its Fair Market Value as of such time, as adjusted in accordance with GAAP in
the Issuer’s books and records prior to the Closing Date, or (B) with
respect to those Containers acquired by the Issuer subsequent to the Closing
Date, either: (a)(i) the vendor’s or manufacturer’s, as applicable,
invoice price plus (ii) reasonable and customary out-of-pocket inspection,
transport, and initial positioning costs that (x) were necessary and
directly related to putting such Container in initial service (subject to
limitations) and (y) permitted and/or required to be capitalized in
accordance with GAAP plus (iii) reasonable acquisition fees and other fees
not to exceed 2.5% of the amount described in clause (i), or (b) if such
Container has been acquired as part of an acquisition that, in accordance with
GAAP would require or permit the application of purchase accounting, the
purchase price allocated by the Issuer to such Container in accordance with
GAAP; provided that if the amount calculated for such Container pursuant to
this clause (b) is greater than the amount that would have been calculated
pursuant to clause (a), the higher purchase price must have been approved by
the Requisite Global Majority and must have satisfied the Rating Agency
Condition. In no event shall the amount described in clause (B)(a)(ii) above
include overhead costs incurred by CLI.


 


Other Fees: All other fees due to Holders of any
VFNs as set forth in and limited by the related Supplement which, for the
avoidance of doubt, shall exclude Step-Up VFN Fees and Default Fees.


 


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


 


(i) any Note
canceled by the Indenture Trustee at or before said date;


 


(ii) any Note in lieu
of or in substitution for which another Note shall subsequently have been
authenticated and delivered; or


 


(iii) any Note held
by a CLI Party.


 


Notwithstanding the foregoing, any Note on which any
portion of principal or interest has been paid by a Series Enhancer
pursuant to an Enhancement Agreement shall be Outstanding until the Series Enhancer
has been reimbursed in full therefor in accordance with the related Enhancement
Agreement.


 


Outstanding Obligations: As of any date of determination an
amount equal to the sum of (i) the then Outstanding principal balance of,
and accrued interest payable on, all Notes issued hereunder, under any
Supplement hereto or any Note Purchase Agreement, (ii) all other amounts


 


23

















 


owing by the Issuer to Noteholders or to any other
Person hereunder, any Supplement hereto or any other Related Documents,
including without limitation any amounts owed to the Indenture Trustee or any Series Enhancer
and (iii) all amounts owed by the Issuer outstanding under any Interest
Rate Hedge Agreement.


 


Overdue Rate: The rate of interest specified in the
related Supplement applicable to a Note then earning Default Fees.


 


Ownership Interests: An ownership interest in a Global Note.


 


Payment Date: With respect to any Series, the
eighteenth (18th) day of each calendar month (or, if such
day is not a Business Day, the next succeeding Business Day commencing September 18,
2006).


 


Permissible Container Type: A container that is classified as any
one of the following:


 


	
   

  	
  (i)

  	
  twenty foot refrigerated;

  
	
   

  	
   

  	
   

  
	
   

  	
  (ii)

  	
  forty foot refrigerated;

  
	
   

  	
   

  	
   

  
	
   

  	
  (iii)

  	
  forty foot high cube refrigerated (including the
  related Everfresh units);

  
	
   

  	
   

  	
   

  
	
   

  	
  (iv)

  	
  such other types as shall have been approved in
  writing by the Requisite Global Majority; and

  
	
   

  	
   

  	
   

  
	
   

  	
  (v)

  	
  generator sets.

  



 


Permitted Encumbrance: With respect to the Collateral, any or
all of the following: (i) Liens for taxes not yet delinquent or that are
being contested in good faith by appropriate Proceedings and for the payment of
which adequate reserves are maintained per GAAP; (ii) with respect to the
Containers, carriers’, warehousemen’s, mechanics’, or other like Liens arising
in the ordinary course of business and relating to amounts not yet due or that
shall not have been overdue for a period of more than sixty (60) days after the
Issuer or the Manager has knowledge thereof or that are being contested in good
faith by appropriate Proceedings and for the payment of which adequate reserves
are maintained per GAAP; provided, however,
in no event shall any such contest result in the loss of the affected item of
Collateral; (iii) with respect to the Containers, Leases entered into in
the ordinary course of business providing for the leasing of Containers; and (iv) Liens
created by this Indenture; provided that any Proceedings of the type described
in clauses (i) and (ii) above could not reasonably be expected to
subject the Indenture Trustee, any Series Enhancer, any Interest Rate
Hedge Provider or Noteholder to any civil or criminal penalty or liability or
involve any significant risk of material loss, sale or forfeiture of all or any
material portion of the Collateral.


 


Permitted Payment Date Withdrawals: On (a) any Payment Date, the
amount required to pay all interest to be accrued and payable on the related
Payment Date on all Series of Notes then Outstanding and reimbursement of
any unpaid amounts paid by any Series Enhancer pursuant to any Enhancement
Agreement to the Series Enhancer and (b) on the Legal Final Maturity
Date of the Series of Notes with the latest Legal Final Maturity Date, the
amount required to pay all


 


24














 


principal amounts to be accrued and payable on such
Legal Final Maturity Date of all Series of Notes then Outstanding
(including, for the avoidance of doubt, reiumbursements of draws under any
Policy).


 


Person: An individual, a partnership, a limited
liability company, a corporation, a joint venture, an unincorporated
association, a joint-stock company, a trust, or other entity or a Governmental
Authority.


 


Plan: An “employee benefit plan,” as defined in Section 3(3) of
ERISA or a “plan” within the meaning of Section 4975(e)(1) of the
Code.


 


Pledge Agreement: The pledge agreement, dated as of October 26,
2001, between Container Leasing International, LLC and the Indenture Trustee,
as such agreement may be amended, modified, or supplemented from time to time
in accordance with its terms.


 


Policy: With respect to any Series of
Notes, the financial guaranty insurance policy, if any, issued by a Series Enhancer.


 


Premium: This term shall have the meaning set
forth in the Premium Letter related to any Enhancement Agreement between the
Issuer and any Series Enhancer.


 


Premium Letter:  The
premium letter, among the Issuer, CLI and the Series Enhancer related to
any Policy.


 


Prepayments: Any mandatory or optional prepayment of
all or any portion of the Unpaid Principal Balance of any Notes or any Series prior
to the scheduled due date thereof including, without limitation any prepayment
pursuant to Section 702 of this Indenture.


 


Principal Payment Amounts: This term shall have the meaning set
forth in the related Supplement.


 


Principal Terms: With respect to any Series, (i) the
name or designation of such Series; (ii) the initial principal amount of
the Notes to be issued for such Series (or method for calculating such
amount); (iii) the interest rate to be paid with respect to each Class of
Notes for such Series (or method for the determination thereof); (iv) the
Payment Date and the date or dates from which interest shall accrue and on
which principal is scheduled to be paid; (v) the designation of any Series Accounts
and the terms governing the operation of any such Series Accounts; (vi) the
terms of any form of Series Enhancement with respect thereto; (vii) the
Expected Final Maturity Date and the Legal Final Maturity Date for the Series; (viii) the
number of Classes of Notes of the Series and, if the Series consists
of more than one Class, the rights and priorities of each such Class; (ix) the
priority of such Series with respect to any other Series; (x) the
Control Party with respect to such Series, (xi) those items constituting
interest, Unused Fees and principal due or to become due to Holders of such Series of
Notes and (xii) any other terms of such Series.


 


Proceeding: Any suit in equity, action at law, or
other judicial or administrative proceeding.


 


25

















 


Proceeds: “Proceeds,” as such term is defined in Section 9-102(a)(64)
of the UCC and, in any event, shall include, without limitation, (a) any
and all Accounts, Proceeds, Instruments, cash or other proceeds payable to the
Issuer from time to time in respect of the Collateral, (b) any and all
proceeds of any insurance, indemnity, warranty or guaranty payable to the
Issuer from time to time with respect to any of the Collateral, (c) any
and all payments (in any form whatsoever) made or due and payable to the Issuer
from time to time in connection with any requisition, confiscation,
condemnation, seizure or forfeiture of all or any part of the Collateral above
by any Governmental Authority (or any Person acting under color of Governmental
Authority), and (d) any and all other amounts from time to time paid or
payable under or in connection with any of the Collateral.


 


Prohibited Jurisdiction: Any country or jurisdiction, from time
to time, that is the subject of a prohibition order (or any similar order or
directive), sanctions or restrictions promulgated or administered by the Office
of Foreign Assets Control of the United States Treasury Department.


 


Prohibited Person: Any Person appearing on the Specially
Designated Nationals List compiled and disseminated by the Office of Foreign
Assets Control of the United States Treasury Department, as the same may be
amended from time to time.


 


Public Global Notes: A Book-Entry Note sold to non-U.S.
persons in reliance on Regulation S, initially to be issued in temporary
global form, and thereafter, in accordance with the terms of this Indenture and
the other Related Documents, transferable to a single, permanent Global Note
evidencing all or part of an issuance of Notes to which the provisions of Section 202(b) through
202(h) shall apply.


 


Rated Institutional Noteholder: An institutional Noteholder whose long
term unsecured debt obligations are then rated BBB- or better by Standard &
Poor’s and Baa3 or better by Moody’s.


 


Rating Agency or Rating Agencies: With respect to any Outstanding Series or
Class, each statistical rating agency, if any, selected by the Issuer with the
approval of the Lead Deal Agent and Series Enhancer for such Series to
rate such Series or Class and that has an outstanding rating with
respect to such Series or Class.


 


Rating Agency Condition: With respect to any action to be taken
or proposed to be taken, each Rating Agency having notified (i) the Issuer
or the Manager and (ii) each Series Enhancer, in writing that such
action will not result in a reduction or withdrawal of its then-current rating
of any Series of Notes then Outstanding including any underlying rating
issued to a Series Enhancer in respect of any Series of Notes without
giving effect to the related Series Enhancement.


 


Record Date: With respect to any Payment Date, the
last calendar day of the month preceding the month in which the related Payment
Date occurs.


 


Reimbursement Amounts: All amounts owed by the Issuer to any Series Enhancer
under the related Enhancement Agreement and each other Related Document.


 


Related Assets: This term shall have the meaning set
forth in the Contribution and Sale Agreement.


 


26

















 


Related Documents: With respect to any Series, the
Contribution and Sale Agreement, the Intercreditor Agreement, any Interest Rate
Hedge Agreements, together with any insurance policies related thereto this
Indenture, the related Supplement, the Notes of such Series, the Pledge
Agreement, the Management Agreement, the Management Transition Agreement, the
related Enhancement Agreement (including, without limitation, each Policy, the
Insurance Agreement and any Premium Letter), the Note Purchase Agreement(s),
the operating agreements and organization documents of CLI and the Issuer, and
each other agreement, document or instrument executed and/or delivered in
connection with the issuance or administration of any Series, as such term
shall be defined in the Supplement pursuant to which such Series of Notes
is issued, and with respect to the Indenture, the Contribution and Sale
Agreement, the Management Agreement, the Management Transition Agreement, the
Pledge Agreement, the Intercreditor Agreement and any Interest Rate Hedge
Agreement, Related Documents shall refer to the documents referenced above
related to each Series of Notes then Outstanding.


 


Requisite Global Majority: A Requisite Global Majority shall exist
with respect to any action proposed to be taken pursuant to the terms of this
Indenture or any Supplement if (a) the Control Party or Control Parties
representing more than fifty percent (50%) of the aggregate principal balance
(or, with respect to any Series of VFNs, prior to a Conversion Event, the
Existing Commitment, thereof) of all Series then Outstanding shall approve
or direct such proposed action (in making such a determination, each Control
Party shall be deemed to have voted the entire aggregate principal balance (or,
with respect to any Series of VFNs, prior to a Conversion Event, the
Existing Commitment, thereof) of the related Series in favor of, or in
opposition to, such proposed action, as the case may be) and (b) unless
Control Parties representing more than sixty-six and two-thirds percent (66
2/3%) of the aggregate principal balance of all Series then Outstanding
(or, with respect to any Series of VFNs, prior to a Conversion Event, the
Existing Commitment, thereof) of all Series then Outstanding shall have
approved or directed such proposed action, Ambac, for so long as Ambac shall be
designated the Control Party for any Series then Outstanding, shall have
also approved or directed such proposed action.


 


Responsible Officer: When used with respect to the Indenture
Trustee, any officer assigned to the Corporate Trust Office (or any successor
thereto), including any Vice President, Assistant Vice President, Trust
Officer, any Assistant Secretary, any trust officer or any other officer of the
Indenture Trustee customarily performing functions similar to those performed
by any of the above designated officers and having direct responsibility for
the administration of this Indenture.


 


Restricted Cash Account: An account established and maintained
by, and in the name of, the Indenture Trustee with the Corporate Trust Office,
into which funds will, from time to time, be deposited in an amount equal to
the Restricted Cash Target Balance.


 


Restricted Cash Amount: As of any date of determination, the
amount then on deposit in the Restricted Cash Account.


 


Restricted Cash Target Balance: The amount required to be deposited or
maintained in the Restricted Cash Account, which shall be equal to the product
of (i) five, (ii) one-twelfth, (iii) the weighted average (based
on the Unpaid Principal Balance of all Series of Notes then


 


27

















 


Outstanding, which principal balances shall be
calculated after giving effect to any principal payments paid on such Payment
Date) of the annual rates of interest payable on all Series of Notes then
Outstanding (or, if any Series of Notes bears interest at a variable rate
of interest, the interest rate then in effect on such Series of Notes),
and (iv) the sum of the Unpaid Principal Balances of all Series of
Notes then Outstanding as of such Payment Date, which principal balances shall
be calculated after giving effect to all advances of principal and principal
payments made on such Payment Date. The amount calculated under clause (iii) shall
be based on: (x) for that portion of the Unpaid Principal Balance of all Series of
Notes then Outstanding that is then subject to an Interest Rate Hedge
Agreement, the fixed rates payable by the Issuer pursuant to such Interest Rate
Hedge Agreements and (y) for that portion of the Unpaid Principal Balance
of all Series of Notes then Outstanding that is not then subject to an
Interest Rate Hedge Agreement, the weighted average interest rates then in
effect on such Series of Notes.


 


Rule 144A: Rule 144A under the Securities
Act, as such rule may be amended from time to time.


 


Rule 144A Global Notes: A Note evidencing all or a part of an
issuance of the Notes, registered in the name of the Depository or its nominee,
and delivered to the Depository pursuant to the Depository’s instruction, in
accordance with Section 202 and bearing the legend prescribed in Section 202.


 


Sale: This term shall have the meaning set forth in Section 815
of this Indenture.


 


Sales Proceeds: The gross proceeds received by the
Manager from the sale or other disposition of a Container, less commissions,
administrative fees, handling charges or other similar amounts paid or to be
paid to third parties in connection with a sale or other disposition, as
determined in the sole discretion of the Manager; provided, however, that to the extent that any such
commission, administrative fees, handling charges or other similar amount is to
be paid to an Affiliate of the Manager, the amount of such fee or other charge
shall not exceed the amount that would have otherwise been payable to an
independent third party in an arms’-length transaction.


 


Scheduled Principal Payment Amount: This term shall have the meaning set
forth in the related Supplement.


 


Scheduled Targeted Principal Balance: This term shall have the meaning set
forth in the related Supplement.


 


Securities Act: The Securities Act of 1933, as amended
from time to time.


 


Securities Entitlement: This term shall have the meaning set
forth in Section 8-102(a)(17) of the UCC.


 


Securities Intermediary: The Indenture Trustee or another
Eligible Institution acting in its individual capacity as a securities
intermediary, within the meaning of Section 8-102(a)(14) of the UCC.


 


Seller: CLI.


 


28

















 


Senior Executive Officer: Any of the president, chief financial
officer, treasurer or controller of the Issuer, Seller or Manager, as the case
may be.


 


Series: Any series of Notes issued pursuant to
a Supplement.


 


Series 2003-1 Notes:  The
Floating Rate Secured Notes issued pursuant to the Series 2003-1
Supplement.


 


Series 2003-1 Supplement: The Series 2003-1 Supplement,
dated as of December 15, 2003, between the Issuer and the Indenture
Trustee to the Original Agreement, as amended, supplemented or modified from
time to time.


 


Series 2003-2 Supplement: The Series 2003-2 Supplement,
dated as of December 15, 2003, between the Issuer and the Indenture
Trustee, to the Original Agreement, as amended, supplemented or modified from
time to time.


 


Series 2003-2 VFNs:  The
Floating Rate Secured Notes issued pursuant to the Series 2003-2
Supplement.


 


Series 2006-1 Notes: The Series 2006-1 Notes issued
pursuant to the Series 2006-1 Supplement.


 


Series 2006-1 Supplement: The Series 2006-1 Supplement
issued pursuant to the Indenture, dated as of August 24, 2006, between the
Issuer and the Indenture Trustee pursuant to which the Series 2006-1 Notes
shall be issued, as amended, supplemented or modified from time to time.


 


Series 2006-2 Supplement: The Series 2006-2 Supplement
issued pursuant to the Indenture, dated as of August 24, 2006, between the
Issuer and the Indenture Trustee pursuant to which the Series 2006-2 VFNs
shall be issued, as amended, supplemented or modified from time to time.


 


Series 2006-2 VFNs: The Series 2006-2 VFNs issued
pursuant to the Series 2006-2 Supplement.


 


Series Account: Any deposit, trust, escrow or similar
account maintained in the name of the Indenture Trustee for the benefit of the
Noteholders and any related Series Enhancer of any Series or Class as
specified in the related Supplement, into which amounts will be deposited for
distribution to such Series of Notes pursuant to its Supplement.


 


Series Enhancement: The rights and benefits provided to the
Noteholders of any Series or Class pursuant to any letter of credit,
surety bond, financial guaranty, insurance policy, insurance agreement or other
similar arrangement. The subordination of any Class to another Class shall
not be deemed to be a Series Enhancement.


 


Series Enhancer: A monoline insurance company that
carries a financial strength rating of no less than “Aaa”, “AAA” and “AAA” from
Moody’s, Standard & Poor’s and Fitch, respectively, and provides any Series Enhancement,
as further described in any Supplement.


 


29

















 


Ambac is the Series Enhancer for the Series 2006-1
Notes and Series 2006-2 VFNs. Accordingly, references herein made to “the Series Enhancer”
for the Series 2006-1 Notes and the Series 2006-2 VFNs shall mean
Ambac as Series Enhancer for the Series 2006-1 Notes or Series 2006-2
VFNs, as applicable.


 


Series Enhancer Default: This term shall have the meaning set
forth in the Supplement for the related Series.


 


Series Enhancer Event: With respect to any Series Enhancer,
either (i) a default shall have occurred and be continuing in its payment
obligations under its related Enhancement Agreement or (ii) the reduction,
withdrawal or downgrade of the ratings of its claims-paying ability issued by
any Rating Agency with respect to such Series Enhancer that would result
in such Series Enhancer being rated (by such Rating Agency) equal to or
below one rating or “notch” above any “shadow” rating(s) issued by any
Rating Agency on any Series of Notes then Outstanding for which it shall
have provided Series Enhancement.


 


Series Issuance Date: With respect to any Series, the date on
which the Notes of such Series are originally issued in accordance with Section 1006
of this Indenture and the related Supplement.


 


Services Standard: This term shall have the meaning set
forth in the Management Agreement.


 


Short Term Interest Coverage Ratio: On any Record Date or date of
determination, the ratio (expressed as a percentage) calculated according to
the following formula:


 


	
   

  	
  STICR

  	
  =

  	
  TCC – FEES

  	
   

  
	
   

  	
   

  	
   

  	
  INT

  	
   

  



 


	
  Where:

  	
  STICR

  	
  =

  	
  Short Term Interest Coverage Ratio;

  
	
   

  	
  TCC

  	
  =

  	
  the total Collections during the most recently
  concluded two (2) Collection Periods;

  
	
   

  	
  FEES

  	
  =

  	
  the amount of Issuer Expenses, Management Fee,
  Transition Agent Fees and Indenture Trustee Fees paid during the most
  recently concluded two (2) Collection Periods; and

  
	
   

  	
  INT

  	
  =

  	
  (A) the sum of (i) the Premium, all
  interest, VFN Fees and other amounts due to the Noteholders and the Series Enhancer
  of all Series of Notes then Outstanding and (ii) payments owing by
  the Issuer under any Interest Rate Hedge Agreement (excluding termination
  payments); less (B) payments received by the Issuer under any Interest
  Rate Hedge Agreements (excluding termination payments); during the most
  recently concluded two (2) Collection Periods.

  



 


Sold Assets: This term shall have the meaning set
forth in the Contribution and Sale Agreement.


 


30

















 


Standard & Poor’s: Standard and Poor’s Ratings Services, a
division of The McGraw-Hill Companies, Inc., and any successor thereto.


 


Step-Up VFN Fees: The additional interest payable on any Series of
VFNs after a Conversion Event or an Early Amortization Event.


 


Subsidiary: With respect to a Person, any
corporation, association, partnership, limited liability company, joint venture
or other business entity of which more than fifty percent (50.0%) of the Voting
Stock or other equity interests (in the case of Persons other than
corporations) is owned or controlled directly or indirectly by such Person, or
one or more of the Subsidiaries of such Person, or a combination thereof.


 


Substitute Container: This term shall have the meaning set
forth in the Contribution and Sale Agreement.


 


Supplement: Any supplement to the Indenture
executed in accordance with Article X of this Indenture.


 


Supplemental Principal Payment
Amount: For each
Payment Date, an amount which is equal to the excess, if any, of (x) the
then Aggregate Note Principal Balance (after giving effect to any payment of
the Minimum Principal Payment Amount and Scheduled Principal Payment Amount of
all Series of Notes actually paid on such Payment Date), over (y) the
Asset Base on such Payment Date.


 


Supporting Obligations: This term shall have the meaning set
forth in Section 9-102(a)(77) of the UCC.


 


TEU: A twenty (20) foot equivalent unit, an industry
standard measure based on the physical dimensions of a container.


 


Transfer Date: The date on which a Container is sold
by the Seller to the Issuer pursuant to the terms of the Contribution and Sale
Agreement.


 


Transferred Container:  This
term shall have the meaning set forth in the Contribution and Sale Agreement.


 


Transition Agent: The Person performing the duties of the
Transition Agent under a manager transition agreement, initially U.S. Bank
Portfolio Services.


 


Transition Agent Fee: This term shall have the meaning set
forth in the Manager Transition Agreement.


 


Transition Costs: Any documented fees, expenses and
allocated costs reasonably incurred by a successor manager, the Transition
Agent, the Indenture Trustee or any Series Enhancer in connection with a
transfer of the management of the Containers from the existing Manager to a
successor Manager, including without limitation, (i) any costs and
expenses incurred by the Transition Agent in connection with the identification
and qualification of a successor manager for which the Transition Agent is
entitled to compensation in accordance with


 


31

















 


the provisions of Section 405(a) of this
Indenture, (ii) any expense reimbursement, inducement payment or
incremental management fee that is required to be paid to such replacement
manager, and (iii) any costs or expenses associated with the complete
transfer of all relevant data from the container management system from the
replaced Manager and the completion, correction or manipulation of such data as
may be required by the new Manager to correct any errors or insufficiencies in
the data or otherwise to enable the new Manager to manage the Containers
properly and effectively.


 


Trust Account: An account established by the
Securities Intermediary and held and maintained by, and in the name of, the
Indenture Trustee pursuant to Section 303 hereof for the benefit of the
Holders of all Outstanding Series of Notes issued pursuant to the
Indenture, any Series Enhancer, and any Interest Rate Hedge Provider.


 


UCC: The Uniform Commercial Code as the same may, from
time to time, be in effect in the state of New York; provided, however,
in the event that, by reason of mandatory provisions of law, any or all of the
attachment, perfection or priority of the Indenture Trustee’s security interest
in any Collateral is governed by the Uniform Commercial Code as in effect in a
jurisdiction other than the state of New York, the term “UCC” shall mean the
Uniform Commercial Code as in effect in such other jurisdiction for purposes of
the provisions hereof relating to such attachment, perfection, or priority and
for purposes of definitions related to such provisions.


 


Unpaid Principal Balance: On any date of determination (including
the Legal Final Maturity Date) the principal balance then Outstanding on any
one or more Series of Notes, as the case may be.


 


Unused Fees: This term shall mean all unused fees
due to Holders of any VFNs under the related Supplement which, for the
avoidance of doubt, shall exclude Step-Up VFN Fees and Default Fees.


 


U.S. Bank Portfolio Services:  Lyon Financial Services, Inc., doing business as
U.S. Bank Portfolio Services.


 


VFN: A variable funding note.


 


VFN Fees: All Unused Fees and Other Fees,
excluding Step-Up VFN Fees and Default Fees.


 


Voting Stock: This term shall have the meaning set
forth in the Management Agreement.


 


Warranty Purchase Amount: This term shall have the meaning set
forth in the Contribution and Sale Agreement.


 


Weighted Average Life: This term shall mean (i) the sum
of the products on each Payment Date of (A) the principal payments assumed
to be made on such a Payment Date and (B) the number of years (or fraction
thereof) from the date of the issuance of such Note to such Payment Date (ii) divided
by the Initial Principal Balance of such Series of Notes.


 


32

















 


Other capitalized terms used herein and not otherwise
defined shall have the meaning set forth in the Contribution and Sale Agreement
or, if not defined therein, as defined in the Management Agreement.


 


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


 


(b) All terms defined in this Indenture shall
have the defined meanings when used in any agreement, certificate or other
document made or delivered pursuant hereto, including any Supplement, unless
otherwise defined therein.


 


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


 


(d) With respect to any Collection Period, the “related
Record Date,” the “related Determination Date,” and the “related Payment Date,”
shall mean the Record Date occurring on the last calendar day of such
Collection Period and the Determination Date and Payment Date next following
the end of such Collection Period.


 


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


 


(f) All references to the Manager’s financial statements
shall mean the consolidated financial statements of the Manager and its
consolidated subsidiaries.


 


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


 


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


 


Section 103. Computation of Time Periods.
Unless otherwise stated in this Indenture or any Supplement issued pursuant to
the terms hereof, in the computation of a period of time from a specified date
to a later specified date, the word “from” means “from and including” and the
words “to” and “until” each means “to but excluding.”


 


33

















 


Section 104. Duties of Transition Agent.
All of the duties and responsibilities of the Transition Agent set forth in
this Indenture, any Supplement or any other Related Document issued pursuant
hereto are subject in all respects to the terms and conditions of the Manager
Transition Agreement. Each of the Issuer, the Indenture Trustee and, by
acceptance of its Notes, each Noteholder hereby acknowledge the terms of the
Manager Transition Agreement.


 


34

















 


ARTICLE II


 


THE NOTES


 


Section 201. Authorization of Notes. (a) The
number of Series or Classes of Notes which may be created by this
Indenture is not limited; provided,
however, that, the issuance of
any Series of Notes shall not (A) result in, or with the giving of
notice or the passage of time or both would not result in, the occurrence of an
Early Amortization Event or an Event of Default or (B) violate the
provisions of Section 1006 hereof or any Supplement for any Series then
Outstanding. The aggregate principal amount of Notes of each Series which
may be issued, authenticated and delivered under this Indenture is not limited
except as shall be set forth in any Supplement and as restricted by the
provisions of this Indenture.


 


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


 


(c) Upon satisfaction of and compliance with the
requirements and conditions to closing set forth in the related Supplement and
applicable Note Purchase Agreement, Notes of the Series to be executed and
delivered on a particular Series Issuance Date pursuant to such related
Supplement, may be executed by the Issuer and delivered to the Indenture
Trustee for authentication following the execution and delivery of the related
Supplement creating such Series or from time to time thereafter, and the
Indenture Trustee shall authenticate and deliver Notes upon an Issuer’s request
set forth in an Officer’s Certificate of the Issuer signed by one of its
Authorized Signatories, without further action on the part of the Issuer.


 


Section 202. Form of Notes; Global Notes.
(a) Notes of any Series or Class may be issued, authenticated and
delivered, at the option of the Issuer, as Public Global Notes, Rule 144A
Global Notes, or as Definitive Notes but only if and to the extent as shall be
set forth in the Supplement applicable to such Series and shall be
substantially in the form of the exhibits attached to the related Supplement.
Notes of each Series shall be dated the date of their authentication and
shall bear interest at such rate, be payable as to principal, premium, if any,
and interest on such date or dates, and shall contain such other terms and
provisions as shall be established in the related Supplement. Except as
otherwise provided in any Supplement, the Notes shall be issued in minimum
denominations and integral multiples of $250,000; provided that one Note of
each Class may be issued in a nonstandard denomination.


 


(b) If the Issuer shall choose to issue Public
Global Notes or Rule 144A Global Notes, such notes shall be issued in the
form of one or more Public Global Notes or one or more Rule 144A Global
Notes which (i) shall represent, and shall be denominated in an aggregate
amount equal to, the aggregate principal amount of all Notes to be issued
hereunder and under the related Supplement, (ii) shall be delivered as one
or more Notes held by the Book-Entry Custodian, or, if appointed to hold such
Notes as provided below, the Depository, and shall


 


35

















 


be registered in the name of the Depository or its
nominee, (iii) shall be substantially in the form of the exhibits attached
to the related Supplement, with such changes therein as may be necessary to
reflect that each such Note is a Global Note, and (iv) shall each bear a
legend substantially to the effect included in the form of the exhibits
attached to the related Supplement.


 


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


 


(d) If (i) the Issuer elects to issue
Definitive Notes, (ii) the Depository for the Notes represented by one or
more Global Notes at any time notifies the Issuer that it is unwilling or
unable to continue as Depository of the Notes or if at any time the Depository
shall no longer be a clearing agency registered under the Exchange Act and any
other applicable statute or regulation, and a successor Depository is not
appointed or approved by the Issuer within 90 days after the Issuer receives
such notice or becomes aware of such condition, as the case may be, (iii) the
Indenture Trustee, at the direction of the Control Party for a Series of
the Notes, elects to terminate the book-entry system for such Series through
the Depository or (iv) after an Event of Default or a Manager Default, the
Control Party for such Series notifies the Depository, or Book-Entry Custodian,
as the case may be, in writing that the continuation of a book-entry system
through the Depository, or the Book-Entry Custodian, as the case may be, is no
longer in the best interest of the Noteholders of such Series, upon the request
of the Noteholders, the Issuer will promptly execute, and the Indenture
Trustee, upon receipt of an Officer’s Certificate evidencing such determination
by the Issuer, will promptly authenticate and make available for delivery,
Definitive Notes without coupons, in authorized denominations and in an
aggregate principal amount equal to the principal amount of one or more Global
Notes so exchanged then outstanding in exchange for such one or more Global
Notes or as an original issuance of Notes and this Section 202(d) shall
no longer be applicable to the Notes of such Series. Upon the exchange of the
Global Notes for such Definitive Notes without coupons, in authorized
denominations, such Global Notes shall be canceled by the Indenture Trustee.
All Definitive Notes shall be issued without coupons. Such Definitive Notes
issued in exchange of the Global Notes pursuant to this Section 202(d) will
not be issued in bearer form and shall be registered in such names and in such
authorized denominations as the Depository in the case of an exchange or the
Note Registrar in the case of an original issuance, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Indenture Trustee. The Indenture Trustee may conclusively rely on any such instructions
furnished by the Depository or the Note Registrar, as the case may be and shall
not be liable for any delay in delivery of such


 


36














 


instructions. The Indenture Trustee shall make such
Notes available for delivery to the Persons in whose names such Notes are so
registered.


 


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


 


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


 


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


 


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


 


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


 


(g) The Indenture Trustee is hereby initially
appointed as the Book-Entry Custodian and hereby agrees to act as such in
accordance with the agreement that it has with the Depository authorizing it to
act as such. The Book-Entry Custodian may, and, if it is no longer qualified to
act as such, the Book-Entry Custodian shall, appoint, by written instrument
delivered to the Issuer and the Depository, any other transfer agent (including
the Depository or any successor Depository) to act as Book-Entry Custodian
under such conditions as the predecessor Book-Entry Custodian and the
Depository or any successor Depository may prescribe, provided that the predecessor Book-Entry
Custodian shall not be relieved of any of its duties or responsibilities by
reason of any such appointment of other than the Depository. If the Indenture
Trustee resigns or is removed in accordance with the terms hereof, the
successor Indenture Trustee or, if it so elects, the Depository shall
immediately succeed to its predecessor’s duties as Book-Entry Custodian. The
Issuer shall have the right to inspect, and to obtain copies of, any Notes held
as Book-Entry Notes by the Book-Entry Custodian.


 


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


 


37

















 


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


 


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


 


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


 


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


 


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


 


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


 


(a) The Indenture Trustee shall keep at its
Corporate Trust Office books for the registration and transfer of the Notes
(the “Note Register”). The Issuer hereby appoints the Indenture Trustee as its
registrar and transfer agent to keep such books and make such registrations and
transfers as are hereinafter set forth in this Section 205 and also authorizes
and directs the Indenture Trustee to provide a copy of such registration record
to each of the


 


38

















 


Administrative Agent, each Series Enhancer, the
Manager and the Transition Agent upon their request. The names and addresses of
the Holders of all Notes and all transfers of, and the names and addresses of
the transferee of, all Notes will be registered in such Note Register. The
Person in whose name any Note is registered shall be deemed and treated as the
owner and Holder thereof for all purposes of this Indenture, and the Indenture
Trustee, the related Series Enhancer and the Issuer shall not be affected
by any notice or knowledge to the contrary. The related Series Enhancer
and, if a Person other than the Indenture Trustee is appointed by the Issuer to
maintain the Note Register, the Indenture Trustee shall have the right to
inspect the Note Register at all reasonable times and to obtain copies thereof
and the Indenture Trustee shall have the right to conclusively rely upon a
certificate executed on behalf of the Note Registrar by an officer thereof as
to the names and addresses of the Noteholders and the principal amounts and
number of such Notes. If a Person other than the Indenture Trustee is appointed
by the Issuer to maintain the Note Register, the Issuer will give the Indenture
Trustee, each Series Enhancer and each Deal Agent prompt written notice of
such appointment and of the location, and any change in the location, of the
successor note registrar.”


 


(b) Payments of principal, premium, if any, and
interest on any Note shall be payable on each Payment Date only to the
registered Holder thereof on the Record Date immediately preceding such Payment
Date. The principal of, premium, if any, and interest on each Note shall be
payable at the Corporate Trust Office of the Indenture Trustee in immediately
available funds in such coin or currency of the United States of America as at
the time for payment shall be legal tender for the payment of public and private
debts. Except as set forth in any Supplement, all interest payable on the Notes
shall be computed on the basis of a 360 day year consisting of twelve months of
30 days each based on the actual number of days which have elapsed in the
relevant calculation period. Notwithstanding the foregoing or any provision in
any Note to the contrary, if so requested by the registered Holder of any Note
by written notice to the Indenture Trustee, all amounts payable to such
registered Holder may be paid either (i) by transferring such amount by
wire to such other bank in the United States, including a Federal Reserve Bank,
as shall have been specified in such notice, for credit to the account of such
registered Holder maintained at such bank, or (ii) by mailing a check to
such address as such Holder shall have specified in such notice, in either case
without any presentment or surrender of such Note to the Indenture Trustee at
the Corporate Trust Office of the Indenture Trustee.


 


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


 


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


 


(e) Every Note presented or surrendered for
registration of transfer or for exchange shall be duly endorsed, or be
accompanied by a written instrument of transfer in form


 


39

















 


satisfactory to the Issuer and the Indenture Trustee
duly executed, by the Holder thereof or his attorney duly authorized in
writing.


 


(f) Any service charge, fees or expenses made or
expense incurred by the Indenture Trustee for any such registration, discharge
from registration or exchange referred to in this Section 205 shall be
paid by the Noteholder. 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 therewith.


 


(g) No transfer of any Note or interest therein
shall be made unless that transfer is made pursuant to an effective
registration statement under the Securities Act, and effective registration or
qualification under applicable state securities laws, or is made in a
transaction that does not require such registration or qualification. If a
transfer of any Definitive Note is to be made without registration under the
Securities Act (other than in connection with the initial issuance thereof or a
transfer thereof by the Depository or one of its Affiliates), then the Note
Registrar shall refuse to register such transfer unless it receives (and upon
receipt, may conclusively rely upon) one of the following: (i) with
respect to a transfer to be made in reliance on Rule 144A, both of the
following: (A) a certificate from the Noteholder desiring to effect such
transfer substantially in the form attached as Exhibit B-1 hereto, or such
other certification reasonably acceptable to the Indenture Trustee and (B) a
certificate from such Noteholder’s prospective transferee substantially in the
form attached as Exhibit B-2 hereto or such other certification reasonably
acceptable to the Indenture Trustee, (ii) with respect to a transfer to be
made in reliance on Regulation S, a certificate from such Noteholder’s
prospective transferee substantially in the form attached to the related
Supplement, or (iii) with respect to a transfer to be made to an
institutional “accredited investor” (as defined in Regulation D under the
Securities Act), a certificate from the prospective transferee substantially in
the form of Exhibit B-3 hereto. If such a transfer of any interest in a
Book-Entry Note is to be made without registration under the Securities Act,
the transferor will be deemed to have made each of the representations and
warranties set forth on Exhibit B-2 and Exhibit B-3 hereto in respect
of such interest as if it was evidenced by a Definitive Note and the transferee
will be deemed to have made each of the representations and warranties set
forth in Exhibit B-2 and Exhibit B-3 hereto in respect of such
interest as if it was evidenced by a Definitive Note. None of the Depository,
the Issuer, the Indenture Trustee or the Note Registrar is obligated to
register or qualify any Class of Notes under the Securities Act or any
other securities law or to take any action not otherwise required under this
Indenture to permit the transfer of any Note or interest therein without
registration or qualification. Any Noteholder or Note Owner desiring to effect
such a transfer shall, and does hereby agree to, indemnify the Depository, the
Issuer, the Indenture Trustee and the Note Registrar against any liability that
may result if the transfer is not so exempt or is not made in accordance with
such federal and state laws.


 


(h) If Definitive Notes are to be issued or
exchanged, such Notes will not be registered by the Indenture Trustee unless
each prospective initial Noteholder acquiring a Note and each prospective
transferee acquiring a Note provides the Manager, the Issuer, the Indenture
Trustee and any successor Manager with a written certificate substantially in
the form of Exhibit B hereto as to compliance with the representations set
forth in Section 208 hereof.


 


40

















 


Section 206. Mutilated, Destroyed, Lost and
Stolen Notes. (a) If (i) any mutilated Note is surrendered to the
Indenture Trustee, or the Indenture Trustee receives evidence to its
satisfaction of the destruction, loss or theft of any Note, and (ii) there
is delivered to the Indenture Trustee such security or indemnity as it and the
Issuer may require to hold the Issuer, the Manager and the Indenture Trustee
harmless, then the Issuer shall execute and the Indenture Trustee shall
authenticate and deliver, in exchange for or in lieu of any such mutilated,
destroyed, lost or stolen Note, a replacement Note of the same Series and Class and
maturity and of like terms as the mutilated, destroyed, lost or stolen Note; provided, however,
that if any such destroyed, lost or stolen Note, but not a mutilated Note,
shall have become, or within seven days shall be, due and payable, the Issuer
may pay such destroyed, lost or stolen Note when so due or payable instead of
issuing a replacement Note.


 


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


 


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


 


Section 207. Delivery, Retention and Cancellation
of Notes. Each Noteholder is required, and hereby agrees, to return to the
Indenture Trustee or, if any Series Enhancer has made any unreimbursed
payment on such Notes, to such Series Enhancer, such return to be
completed within thirty (30) days after the final Payment Date, any Note on
which all amounts of interest, principal and other amounts have been received
by such Noteholders. Unless any unreimbursed payment on such Note has been made
by a Series Enhancer, any such Note as to which all such amounts have been
so received shall be deemed canceled and shall no longer be Outstanding for any
purpose of this Indenture, whether or not such Note is ever returned to the
Indenture Trustee. Matured Notes delivered to the Indenture Trustee upon final
payment and any Notes transferred or exchanged for other Notes shall be
canceled and disposed of by the Indenture Trustee in accordance with its policy
of disposal and the Indenture Trustee shall promptly deliver to the Issuer such
canceled Notes upon reasonable prior written request. If the Indenture Trustee
shall acquire, for its own account, any of the Notes, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Notes. If the Issuer shall acquire any of the Notes, such acquisition
shall operate as a redemption or satisfaction of the indebtedness represented
by such Notes. Notes which have been canceled by the Indenture Trustee shall be
deemed paid and discharged for all purposes under this Indenture.


 


41

















 


Section 208. ERISA Representations. If a
transfer of any Definitive Note is to be made, then the Note Registrar shall
refuse to register such transfer unless it receives (and upon receipt, may
conclusively rely upon) a certificate from such Noteholder’s prospective
transferee substantially in the form attached as Exhibit B-2 or B-3 hereto
or such other certification reasonably acceptable to the Indenture Trustee with
respect to compliance with ERISA. If such a transfer of any interest in a
Book-Entry Note the transferee will be deemed to have made each of the
representations and warranties set forth in Exhibit B-2 and Exhibit B-3
hereto in respect of such interest as if it was evidenced by a Definitive Note.


 


42

















 


ARTICLE III


 


PAYMENT OF NOTES;
STATEMENTS TO NOTEHOLDERS


 


Section 301. Principal and Interest.
Distributions of principal, Premium, if any, and interest on any Series or
Class of Notes shall be made to Noteholders of each Series and Class and
the related Series Enhancer as set forth in Section 302 of this
Indenture and the related Supplement. The maximum Overdue Rate for any Note of
any Series shall be equal to (A) the sum of (i) two percent (2%)
per annum, plus (ii) the interest rate per annum payable on such Note
prior to the event giving rise to such Default Fees or, (B) if interest
payments on the affected Series of Notes is calculated based on a variable
rate of interest, the Base Rate plus two percent (2%) per annum. If interest or
principal amounts or other amounts are paid by a Series Enhancer, then the
Overdue Rate shall be owed to such Series Enhancer and shall not be paid
to applicable Noteholders of such Series or the related Interest Rate
Hedge Provider unless the related Series Enhancer has failed to make
payment of such amounts in accordance with the terms of any applicable
Enhancement Agreement.


 


Section 302. Trust Account. (a) On or
prior to the Closing Date, the Indenture Trustee shall establish and maintain
with the Corporate Trust Office the Trust Account, established in the name of
the Indenture Trustee for the benefit of the holders of all Series of
Notes then Outstanding issued pursuant to this Indenture, any Series Enhancer
and any Interest Rate Hedge Provider, into which the following amounts shall be
deposited: an amount equal to the sum (without duplication) of (i) all of
the Collections less an amount up to the Management Fee and Management Fee
Arrearage deducted in accordance with the Indenture and the other Related
Documents received during the related Collection Period, (ii) all amounts
received by the Issuer during the related Collection Period pursuant to any
Interest Rate Hedge Agreement, (iii) any Warranty Purchase Amounts
received by the Issuer during the related Collection Period, (iv) all
amounts transferred from the Restricted Cash Account or Manager Transition
Account to the Trust Account for use on such Payment Date, (v) the amount
of all Manager Advances for use on such Payment Date, (vi) any earnings on
Eligible Investments in the Trust Account, Manager Transition Account, each Series Account
and Restricted Cash Account to the extent that such earnings were credited to
such account during the related Collection Period and (vii) other payments
required by this Indenture and the other Related Documents to be deposited
therein (all of the foregoing referred to as the “Available Distribution Amount”).
Neither the Issuer nor the Indenture Trustee shall establish any additional
Trust Accounts without prior written notice to the Indenture Trustee and the
Issuer and the prior written consent of the Requisite Global Majority and each Series Enhancer.


 


(b) The Issuer shall cause the Manager to deposit
funds into the Trust Account at the times and in the amounts required pursuant
to the terms of the Management Agreement. So long as no Early Amortization
Event or Manager Default shall have occurred and then be continuing, the
Manager shall be permitted to request the Indenture Trustee to withdraw (to the
extent not previously withheld) from amounts on deposit in the Trust Account,
or otherwise net out, from amounts otherwise required to be deposited to the
Trust Account pursuant to Section


 


43

















 


302(a) the amount of any Management Fee or
Management Fee Arrearage that would otherwise be due and payable on the
immediately succeeding Payment Date.


 


(c) On each Determination Date, the Issuer shall
cause the Manager, pursuant to the Management Agreement, to prepare and deliver
to the Indenture Trustee, the Transition Agent, each Interest Rate Hedge
Provider, each Series Enhancer and each Holder of a VFN, the Manager
Report, which will set forth calculations and allocations (including the
applicable One-Month LIBOR used for the calculation of related interest
payments set forth therein) with respect to the related Payment Date. On each
Payment Date, the Indenture Trustee, based on the Manager Report (provided
that, in the absence of any Manager Report, the Indenture Trustee shall
distribute all funds available for distribution in accordance with written
instructions signed by the Transition Agent (subject to the consent of the
Requisite Global Majority) and shall hold the balance until delivery of such Manager
Report), shall distribute funds in an amount equal to the Available
Distribution Amount then on deposit in the Trust Account to the following
Persons in the following order of priority:


 


(I) On each Payment
Date, if neither an Early Amortization Event nor an Event of Default shall have
occurred and then be continuing, the Indenture Trustee will make the following
payments from the Available Distribution Amount then on deposit in the Trust
Account to the following Persons, by wire transfer of immediately available
funds, in the following order of priority:


 


(1)     To the Indenture Trustee, the Indenture Trustee Fees,
Transition Costs and Indenture Trustee Indemnified Amounts then due and payable
for all Series of Notes then Outstanding; provided,
however, that the aggregate amount of Indenture Trustee Fees,
Transition Costs and Indenture Trustee Indemnified Amounts payable pursuant to
this clause (1) in any calendar year shall not exceed One Hundred Thousand
Dollars ($100,000) per annum in the aggregate;


 


(2)     To the Manager, the Management Fee and any Management
Fee Arrearage to the extent not withheld by the Manager pursuant to Section 302;


 


(3)     To the Manager, the amount of any unreimbursed Manager
Advances;


 


(4)     To the Transition Agent, an amount equal to the
Transition Agent Fee and any Transition Costs (such Transition Costs not to
exceed $1,000,000 in the aggregate) then due and payable to the Transition
Agent;


 


(5)     To each Series Enhancer, on a pro rata basis, an amount equal to the
Premiums then due and payable pursuant to the terms of each applicable
Enhancement Agreement;


 


44

















 


(6)     To the Issuer, an amount equal to any Issuer Expenses;
provided, however, that the
aggregate amount payable pursuant to this clause shall not exceed $250,000 per
annum;


 


(7)     To each Interest Rate Hedge Provider, on a pro rata basis, the amount of any
scheduled payments (but not termination payments) then due and payable pursuant
to the terms of any Interest Rate Hedge Agreement then in effect, together with
any such amounts past due and any interest thereon;


 


(8)     To the Series Account for each Series of
Notes then Outstanding, an amount equal to interest (exclusive of Default Fees
and Step-Up VFN Fees) and VFN Fees then due and payable;


 


(9)     To the Restricted Cash Account, an amount sufficient
so that the total amount on deposit therein is equal to the Restricted Cash
Target Balance for such Payment Date;


 


(10)   To the Series Account for each Series of
Notes then Outstanding, for each Series Enhancer, on a pro rata basis, an amount equal to
reimbursement of interest payments (and interest thereon) made by such Series Enhancer
under the related Enhancement Agreement;


 


(11)   To the Series Account for each Series of
Notes then Outstanding, all Minimum Principal Payment Amounts for each such Series of
Notes;


 


(12)   To the Series Account for each Series of
Notes then Outstanding, all Scheduled Principal Payment Amounts for each such Series of
Notes;


 


(13)   To the applicable Series Account, an amount equal
to the Supplemental Principal Payment Amount for such Series. If sufficient
funds do not exist to pay in full all such Supplemental Principal Payment
Amount to all Series of Notes then Outstanding, such available amounts
shall be allocated among all such Series of Notes, pro rata, based on the then Unpaid
Principal Balances thereof;


 


(14)   To the Manager Transition Account, an amount
sufficient so that the total amount on deposit therein is equal to the Manager
Transition Amount;


 


(15)   To the Series Account for any Series of
VFNs, an amount equal to  the
Step-Up VFN Fees, including accrued and unpaid Step-Up VFN Fees, pro rata;


 


(16)   To the Series Account for each Series of
Notes then Outstanding, indemnification, expenses and any other amounts (including,
as to any Series Enhancer, Reimbursement Amounts) due and owing (i) to
each Series Enhancer (excluding any Prepayment penalties) and (ii) to
Holders


 


45

















 


of any Series of Notes then Outstanding (including
Default Fees), pro rata;


 


(17)   To each Interest Rate Hedge Provider, on a pro rata basis, the amount of any unpaid
payments then due and payable (including termination payments) pursuant to the
terms of any Interest Rate Hedge Agreement then in effect;


 


(18)   To (i) the Indenture Trustee, the amount of any
unpaid Indenture Trustee Fees, Transition Costs and Indenture Trustee
Indemnified Amounts owing (determined after giving effect to any payments made
pursuant to clause (1) above) and (ii) to the Transition Agent, the
amount of any unpaid Transition Agent Fees, Transition Costs and indemnity
amounts owing (determined after giving effect to any payments made pursuant to
clause (4) above); provided, however,
that if there are insufficient funds on any Payment Date to pay in full all of
the amounts identified in clauses (i) and (ii), all remaining Available
Distribution Amounts shall be distributed to the parties identified in clauses (i) and
(ii), pro rata, based upon the
amounts then owing pursuant to each such clause;


 


(19)   To the Manager, the amount of any unpaid indemnity
payments owing pursuant to the Management Agreement;


 


(20)   To the Series Account for each Series of
Notes then Outstanding, for each Series Enhancer, on a pro rata basis, an amount equal to any
Prepayment penalties due and owing to any Series Enhancer under the
related Enhancement Agreement; and


 


(21)   To the Issuer, any remaining Available Distribution
Amount.


 


(II) On each Payment
Date, if an Early Amortization Event but no Event of Default shall have
occurred and then be continuing with respect to any Series then
Outstanding, the Indenture Trustee will make the following payments from the
Available Distribution Amount then on deposit in the Trust Account to the
following Persons, by wire transfer of immediately available funds, in the
following order of priority:


 


(1)     To the Indenture Trustee, the Indenture Trustee Fees,
Transition Costs and Indenture Trustee Indemnified Amounts then due and payable
for all Series of Notes then Outstanding; provided,
however, that the aggregate amount of Indenture Trustee Fees,
Transition Costs and Indenture Trustee Indemnified Amounts payable pursuant to
this clause (1) in any calendar year shall not exceed One Hundred Thousand
Dollars ($100,000) per annum in the aggregate;


 


(2)     To the Manager, the Management Fee and Management Fee
Arrearage to the extent not withheld by the Manager pursuant to Section 302;


 


46

















 


(3)     To the Manager, the amount of any unreimbursed Manager
Advances;


 


(4)     To the Transition Agent, an amount equal to the
Transition Agent Fee and any Transition Costs (such Transition Costs not to
exceed $1,000,000 in the aggregate) then due and payable to the Transition
Agent;


 


(5)     To each Series Enhancer, on a pro rata basis, an amount equal to the
Premiums then due and payable pursuant to the terms of each applicable
Enhancement Agreement;


 


(6)     To the Issuer, an amount equal to any Issuer Expenses;
provided, however, that the
aggregate amount payable pursuant to this clause shall not exceed $250,000 per
annum;


 


(7)     To each Interest Rate Hedge Provider, on a pro rata basis, the amount of any
scheduled payments (but not termination payments) then due and payable pursuant
to the terms of any Interest Rate Hedge Agreement then in effect, together with
any such amounts past due and any interest thereon;


 


(8)     To each Series Enhancer, on a pro rata basis, an amount equal to
reimbursable expenses paid to third parties (not to exceed an aggregate amount
of $250,000 per annum), provided that,
with respect to any such Series Enhancer, no Series Enhancer Event
shall have occurred and be continuing;


 


(9)     To each Series Account for each Series of
Notes then Outstanding, an amount equal to interest (exclusive of Default Fees
and Step-Up VFN Fees) and VFN Fees then due and payable;


 


(10)   To the Series Account for each Series of
Notes then Outstanding, for each Series Enhancer, on a pro rata basis, an amount equal to
reimbursement of interest payments (and interest thereon) made by such Series Enhancer
under the related Enhancement Agreement;


 


(11)   To the Restricted Cash Account, an amount sufficient
so that the total amount on deposit therein is equal to the Restricted Cash
Target Balance for such Payment Date;


 


(12)   To the Manager Transition Account, an amount
sufficient so that the total amount on deposit therein is equal to the Manager
Transition Amount;


 


(13)   To each Series Account for each Series of
Notes then Outstanding, all Minimum Principal Payment Amounts for each such Series of
Notes;


 


47

















 


(14)   To each Series Account for each Series of
Notes then Outstanding, all Scheduled Principal Payment Amounts for each such Series of
Notes;


 


(15)   To each Series Account for each Series of
Notes then Outstanding, all remaining unpaid principal amounts then Outstanding
for all Series of Notes, pro rata,
based on the Unpaid Principal Balance for each such Series of Notes;


 


(16)   To the Series Account for each Series Enhancer,
on a pro rata basis, an amount
equal to reimbursement of principal payments (and interest thereon) made by
such Series Enhancer under the related Enhancement Agreement;


 


(17)   To the Series Account for each Series of
Notes then Outstanding, first,
indemnification, expenses and any other Reimbursement Amounts (excluding
Prepayment penalties) due and owing to each Series Enhancer and second, indemnification, expenses and any
other amounts due and owing to the Holders of any Series of Notes; provided that, if a Series Enhancer
Event shall have occurred and be continuing, then, with respect to any such Series Enhancer,
pro rata, with the Holders of any
Series of Notes then Outstanding;


 


(18)   To the Series Account for each Series of
Notes then Outstanding, the Step-Up VFN Fees and any Default Fees then due and
payable, including accrued and unpaid Step-Up VFN Fees and Default Fees, pro rata;


 


(19)   To each Interest Rate Hedge Provider, on a pro rata basis, the amount of any unpaid
payments then due and payable (including termination payments) pursuant to the
terms of any Interest Rate Hedge Agreement then in effect;


 


(20)   To (i) the Indenture Trustee, the amount of any
unpaid Indenture Trustee Fees, Transition Costs and Indenture Trustee
Indemnified Amounts owing (determined after giving effect to any payments made
pursuant to clause (1) above) and (ii) the Transition Agent, the
amount of any unpaid Transition Agent Fees, Transition Costs and indemnity
amounts due and owing (determined after giving effect to any payments made
pursuant to clause (4) above); provided,
however, that if there are insufficient funds on any Payment Date to
pay in full all of the amounts identified in clauses (i) and (ii), all
remaining Available Distribution Amounts shall be distributed to the parties
identified in clauses (i) and (ii), pro
rata, based upon the amounts then owing pursuant to each such
clause;


 


(21)   To the Manager, the amount of any unpaid indemnity
payments owing pursuant to the Management Agreement;


 


48

















 


(22)   To the Series Account for each Series of
Notes then Outstanding, for each Series Enhancer, on a pro rata basis, an amount equal to any
Prepayment penalties due and owing to any Series Enhancer under the
related Enhancement Agreement; and


 


(23)   To the Issuer, any remaining Available Distribution
Amount.


 


(III) On each Payment Date, if an Event of
Default shall have occurred and then be continuing with respect to any Series then
Outstanding, the Indenture Trustee will make the following payments from the
Available Distribution Amount then on deposit in the Trust Account to the
following Persons, by wire transfer of immediately available funds, in the
following order of priority:


 


(1)     To the Indenture Trustee, the Indenture Trustee Fees,
Transition Costs and Indenture Trustee Indemnified Amounts then due and payable
for all Series of Notes then Outstanding; provided,
however, that the aggregate amount of Indenture Trustee Fees,
Transition Costs and Indenture Trustee Indemnified Amounts payable pursuant to
this clause (1) in any calendar year shall not exceed One Hundred Thousand
Dollars ($100,000) per annum in the aggregate;


 


(2)     To the Manager, the Management Fee and Management Fee
Arrearage to the extent not withheld by the Manager pursuant to Section 302;


 


(3)     To the Manager, the amount of any unreimbursed Manager
Advances;


 


(4)     To the Transition Agent, an amount equal to the
Transition Agent Fee and any Transition Costs (such Transition Costs not to
exceed $1,000,000 in the aggregate) then due and payable to the Transition
Agent;


 


(5)     To each Series Enhancer, on pro rata basis, an amount equal to the
Premiums then due and payable pursuant to the terms of each applicable
Enhancement Agreement;


 


(6)     To the Issuer, any Issuer Expenses in an amount not to
exceed $150,000 per annum; provided that,
subject to the approval of the Requisite Global Majority, a sum not to exceed
an aggregate amount of $250,000 per annum (including amounts paid to the Issuer
in such year pursuant to this clause prior to approval from the Requisite
Global Majority) may be paid to the Issuer;


 


(7)     To each Interest Rate Hedge Provider, on a pro rata basis, the amount of any
scheduled payments (but not termination payments) then due and payable pursuant
to the terms of any Interest Rate Hedge


 


49

















 


Agreement then in effect, together with any such
amounts past due and any interest thereon;


 


(8)     To each Series Enhancer, on a pro rata basis, an amount equal to
reimbursable expenses paid to third parties (not to exceed an aggregate amount
of $250,000 per annum); provided that,
with respect to any such Series Enhancer, no Series Enhancer Event
shall have occurred and be continuing;


 


(9)     To the Series Account for each Series of
Notes then Outstanding, an amount equal to interest (exclusive of Default Fees
and Step-Up VFN Fees) and VFN Fees then due and payable;


 


(10)   To the Series Account for each Series of
Notes then Outstanding, for each Series Enhancer, on a pro rata basis, an amount equal to
reimbursement of interest payments (and interest thereon) made by such Series Enhancer
under the related Enhancement Agreement;


 


(11)   To the Series Account for each Series of
Notes then Outstanding, all Minimum Principal Payment Amounts for such Series of
Notes, pro rata, based on the
Unpaid Principal Balance of each such Series of Notes at the time of such
Event of Default;


 


(12)   To the Series Account for each Series of
Notes then Outstanding, all Scheduled Principal Payment Amounts for such Series of
Notes, pro rata, based on the
Unpaid Principal Balance of each such Series of Notes at the time of such
Event of Default;


 


(13)   To the Series Account for each Series of
Notes then Outstanding, all remaining unpaid principal amounts then Outstanding,
pro rata, based on the Unpaid
Principal Balance of each such Series of Notes at the time of such Event
of Default;


 


(14)   To the Series Account for each Series of
Notes then Outstanding, for each Series Enhancer, on a pro rata basis, an amount equal to
reimbursement of principal payments (and interest thereon) made by such Series Enhancer
under the related Enhancement Agreement;


 


(15)   To the Series Account for each Series of
Notes then Outstanding, indemnification, expenses and all other amounts (including,
as to any Series Enhancer, any Reimbursement Amounts) due and owing to
each Series Enhancer (excluding any Prepayment penalties) and each
Noteholder of any Series of VFNs then Outstanding, pro rata and pari passu;


 


(16)   To the Series Account for each Series of
Notes then Outstanding, the Step-Up VFN Fees, any Default Fees and any other
amounts then due


 


50














 


and payable to the
related Noteholders, including accrued and unpaid Step Up VFN Interest and
Default Fees, pro rata;


 


(17)   To each Interest Rate Hedge Provider, on a pro rata basis, the amount of any unpaid
payments then due and payable (including termination payments) pursuant to the
terms of any Interest Rate Hedge Agreement then in effect;


 


(18)   To (i) the Indenture Trustee, the amount of any
unpaid Indenture Trustee Fees, Transition Costs and Indenture Trustee
Indemnified Amounts owing (determined after giving effect to any payments made
pursuant to clause (1) above) and (ii) the Transition Agent, the
amount of any unpaid Transition Agent Fees, Transition Costs and indemnity
amounts owing (determined after giving effect to any payments made pursuant to
clause (4) above); provided, however,
that if there are insufficient funds on any Payment Date to pay in full all of
the amounts identified in clauses (i) and (ii), all remaining Available
Distribution Amounts shall be distributed to the parties identified in clauses (i) and
(ii), pro rata, based upon the
amounts then owing pursuant to each such clause;


 


(19)   To the Manager, the amount of any unpaid indemnity
payments owing pursuant to the Management Agreement;


 


(20)   To the Series Account for each Series of
Notes then Outstanding, for each Series Enhancer, on a pro rata basis, any Prepayment penalties
due and owing to any Series Enhancer under the related Enhancement
Agreement; and


 


(21)   To the Issuer, any remaining Available
Distribution Amount.


 


(d) If on any Payment Date on which no Event of
Default is then continuing there are not sufficient funds to pay, in full, the
Minimum Principal Payment Amounts and/or Scheduled Principal Payment Amounts
owing to all Series of Notes then Outstanding, as the case may be, then
principal payments having the same payment priority will be paid, in full, to
the series first issued (based on their respective dates of issuance or
Conversion Dates, as applicable) in chronological order based on their
respective dates of issuance or Conversion Date, as applicable. If two or more
series of notes were issued or their Conversion Date occurred, as applicable,
on the same date, then principal payments having the same payment priority will
be allocated among each such notes, on a pro
rata basis, based on the principal payments then due.


 


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


 


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Section 303. Investment of Monies Held in the
Trust Account, the Restricted Cash Account, the Manager Transition Account and Series Accounts;
Control over Eligible Investments. (a) The Indenture Trustee shall
invest any cash deposited in the Trust Account, the Restricted Cash Account,
the Manager Transition Account and each Series Account in such Eligible
Investments as the Manager shall direct in writing or by telephone and
subsequently confirmed in writing. Each Eligible Investment (including
reinvestment of the income and proceeds of Eligible Investments) shall be held
to its maturity and shall mature or shall be payable on demand not later than
the Business Day immediately preceding the next succeeding Payment Date. If the
Indenture Trustee has not received written instructions from the Manager by
2:30 p.m. (New York City time) on the day such funds are received as to
the investment of funds then on deposit in any of the aforementioned accounts,
the Requisite Global Majority may instruct the Indenture Trustee to invest such
funds in overnight investments of the type described in clause (iv) of the
definition of Eligible Investments. Any funds in the Trust Account, the
Restricted Cash Account, the Manager Transition Account and each Series Account
not so invested must be fully insured by the Federal Deposit Insurance
Corporation. Eligible Investments shall be registered in the name of the Securities
Intermediary as Securities Intermediary of the Indenture Trustee for the
benefit of the Noteholders, each Series Enhancer and, if applicable, each
Interest Rate Hedge Provider. Any earnings on Eligible Investments in the Trust
Account, the Restricted Cash Account, the Manager Transition Account and each Series Account
shall be retained in each such account and be distributed in accordance with
the terms of this Indenture or any related Supplement. The Indenture Trustee
shall not be liable or responsible for losses on any investments made by it
pursuant to this Section 303. The Issuer shall not make or permit to exist
any Investment in any Person except for Investments in Eligible Investments
made in accordance with the terms of this Section 303.


 


(b) Each of the Issuer, the Indenture Trustee and
the Securities Intermediary hereby agree that (i) each of the Trust
Account, the Restricted Cash Account, the Manager Transition Account and the Series Accounts
will be a “securities account” as such term is defined in Section 8-501(a) of
the UCC, (ii) the Securities Intermediary shall treat only the Indenture
Trustee as entitled to exercise the rights that comprise any Financial Asset
credited to such accounts, (iii) all Eligible Investments will be promptly
credited to such accounts and shall be treated as a Financial Asset and (iv) all
securities or other property underlying any financial assets credited to such
accounts shall be registered in the name of the Securities Intermediary,
indorsed to the Securities Intermediary and in no case will any Financial Asset
credited to the Trust Account, the Restricted Cash Account or any Series Account
be registered in the name of the Issuer, payable to the order of the Issuer or
specially indorsed to the Issuer except to the extent the foregoing have been
specially indorsed to the Securities Intermediary at which such accounts are
maintained or in blank.


 


(c) On or prior to the Closing Date, each of the
Issuer and the Securities Intermediary shall enter into Control Agreements
(each a “Control Agreement”, collectively, the “Control Agreements”) in form
acceptable to the Requisite Global Majority, for each of the Trust Account, the
Restricted Cash Account, the Manager Transition Account and any Series Accounts.
At all times on and after the Closing Date, each such account shall be the
subject of a Control Agreement substantially similar to that in effect on the
Closing Date or such other agreement as shall be acceptable to the Requisite
Global Majority.


 


52

















 


(d) The Indenture Trustee, acting in accordance
with the terms of this Indenture, shall be entitled to provide an “entitlement
order” (as defined in Section 8-102(a)(8) of the UCC, an “Entitlement
Order”) to the Securities Intermediary at which such accounts are maintained; provided, however, that the Indenture
Trustee agrees not to invoke its right to provide an Entitlement Order unless
any Event of Default has occurred and is continuing and the Requisite Global
Majority has so directed following such occurrence. Such Control Agreements
shall provide that upon receipt of the Entitlement Order in accordance with the
provisions of this Indenture, the Securities Intermediary shall comply with
such Entitlement Order without further consent by the Issuer or any other
Person.


 


(e) Each of the Trust Account, the Restricted
Cash Account, the Manager Transition Account and the Series Accounts shall
be maintained at the Corporate Trust Office, and shall be governed by the laws
of the state of New York, regardless of any provision in any other agreement.
Each Control Agreement shall provide for purposes of the UCC, that New York
shall be deemed to be the Securities Intermediary’s jurisdiction and each of
the Trust Account, the Restricted Cash Account, the Manager Transition Account
and the Series Accounts (as well as the Securities Entitlements related
thereto) shall be governed by the laws of the state of New York. If any of the
Trust Account, the Restricted Cash Account, the Manager Transition Account or
the Series Accounts are not maintained at the Corporate Trust Office of
the Indenture Trustee or if at any time the Indenture Trustee shall fail to
satisfy the conditions of Section 906 hereof, then the Issuer shall promptly
cause after obtaining knowledge of such condition and, with the Indenture
Trustee’s assistance as necessary, each of the Trust Account, the Restricted
Cash Account, the Manager Transition Account and the Series Accounts to be
transferred to either (A) an Eligible Institution which then shall satisfy
the conditions of Section 906 hereof and is otherwise acceptable to the
Requisite Global Majority and each Series Enhancer, or (B) with the
prior written consent of the Requisite Global Majority and each Series Enhancer,
the Corporate Trust Office of the successor Indenture Trustee. If any of the
Trust Account, the Restricted Cash Account, the Manager Transition Account and
the Series Accounts is maintained with a Person other than the Indenture
Trustee or, if a Person other than the Indenture Trustee shall be the
Securities Intermediary, the Issuer shall obtain the prior written consent of
the Requisite Global Majority and each Series Enhancer and shall cause a
new Control Agreement to be entered into with such Person.


 


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


 


(g) Except for the claims and interest of the
Indenture Trustee and of the Issuer hereunder in each of the Trust Account, the
Restricted Cash Account, the Manager Transition Account and the Series Accounts,
to the best of its knowledge without independent investigation, the Securities
Intermediary knows of no claim to, or interest in, any of the Trust Account,
the Restricted Cash Account, the Manager Transition Account,  any Series Account or


 


53

















 


in any Financial Asset credited thereto. If any other
Person asserts any Lien, encumbrance or adverse claim (including any writ,
garnishment, judgment, warrant of attachment, execution or similar process)
against any of the Trust Account, the Restricted Cash Account, the Manager Transition
Account,  each Series Account
or in any Financial Asset credited thereto, the Securities Intermediary will
promptly notify the Indenture Trustee, the Manager, each Series Enhancer,
each Interest Rate Hedge Provider and the Issuer thereof.


 


(h) The Indenture Trustee shall possess all
right, title and interest in and to all funds on deposit from time to time in
each of the Trust Account, the Restricted Cash Account, the Manager Transition
Account,  the Series Accounts
and in all Proceeds thereof. Each of the Trust Account, the Restricted Cash
Account, the Manager Transition Account and the Series Accounts shall be
in the name of and under the sole dominion and control of the Indenture Trustee
for the benefit of the Noteholders, each Interest Rate Hedge Provider and each Series Enhancer.
The Indenture Trustee shall make withdrawals and payments from each of the
Trust Account, the Restricted Cash Account, the Manager Transition Account and
the Series Accounts and apply such amounts in accordance with the provisions
of the Manager Report and, in the absence of any Manager Report, in accordance
with written instructions from the Transition Agent and with the consent of the
Requisite Global Majority. Effective upon any submission by the Indenture
Trustee to each Series Enhancer of a certificate requesting a draw under
any related Enhancement Agreement, the Indenture Trustee will be deemed to have
assigned to each Series Enhancer all rights under the obligations insured
under such Enhancement Agreement in respect of which payment is being requested
to each Series Enhancer.


 


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


 


(j) In the event that a Corporate Trust Officer
of the Indenture Trustee obtains actual knowledge that the Indenture Trustee
(in its individual capacity) has or subsequently obtains by agreement,
operation of law or otherwise a security interest in any of the Trust Account,
the Restricted Cash Account, the Manager Transition Account or Series Account
or any security entitlement credited thereto, the Indenture Trustee (in its
individual capacity) hereby agrees that such security interest shall be
subordinate to the security interest created by this Indenture. The Financial
Assets and other items deposited to the accounts will not be subject to
deduction, set-off, banker’s lien, or any other right in favor of any Person
except as created pursuant to this Indenture.


 


Section 304. Reports to Noteholders. The
Indenture Trustee shall promptly furnish each Series Enhancer, and upon
request, each Noteholder, a copy of all reports, financial statements and
notices received by the Indenture Trustee pursuant to the Contribution and Sale
Agreement, the Management Agreement or any other Related Document; provided, however, that the Indenture
Trustee shall not be responsible for the accuracy or content (including
mathematical calculations) of any reports, financial statements and notices
furnished pursuant to this Indenture and any applicable Supplement.


 


54

















 


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


 


Section 306. Restricted Cash Account. (a) On
or prior to the Closing Date, the Indenture Trustee established and shall
maintain in its name an Eligible Account with the Corporate Trust Office of the
Indenture Trustee (in its capacity as Securities Intermediary of the Indenture
Trustee) which shall be designated the Restricted Cash Account for all Series of
Notes then Outstanding and which shall be held by the Indenture Trustee
pursuant to the terms of this Indenture for the benefit of the Holders of all
Notes and any Series Enhancer(s) with respect to such Notes. Any and
all moneys remitted by the Issuer, or Manager on its behalf, to the Restricted
Cash Account from the Trust Account, together with any Eligible Investments in
which such moneys are or will be invested or reinvested, shall be held in the
Restricted Cash Account for all Series. On each Payment Date, the Issuer will
deposit, or cause to be deposited, into the Restricted Cash Account a
sufficient amount of funds such that, after giving effect to such deposit, the
amount of funds on deposit therein shall be equal to the Restricted Cash Target
Balance, and thereafter amounts shall be deposited in the Restricted Cash
Account in accordance with Section 302. Any and all moneys on deposit in
the Restricted Cash Account shall be invested in Eligible Investments in
accordance with the Indenture and shall be distributed in accordance with this Section 306.


 


(b) On each Payment Date, the Indenture Trustee
shall, in accordance with the Manager Report or, absent a Manager Report,
pursuant to written instructions from the Transition Agent, with the consent of
the Requisite Global Majority, withdraw from the Restricted Cash Account and
deposit into the Series Account for each Series an amount equal to
the excess, if any, of (A) the Permitted Payment Date Withdrawals over (B) the
amounts then on deposit in the Series Account for such Series (determined
after giving effect to all other deposits to the Series Account for such Series on
or prior to such Determination Date). Such amounts may only be used to pay
amounts specified in the definition of “Permitted Payment Date Withdrawals”. If
on any Determination Date the Restricted Cash Amount on deposit in the
Restricted Cash Account is not sufficient to pay in full the excess of
aggregate Permitted Payment Date Withdrawals over amounts on deposit in such Series Accounts,
then the Restricted Cash Amount then available in the Restricted Cash Account
will be allocated among the various Series on a pro rata basis in proportion to the amount of their
respective Permitted Payment Date Withdrawals.


 


(c) On each Payment Date, the Indenture Trustee
shall, in accordance with the Manager Report, or absent a Manager Report,
pursuant to written instructions from the Transition Agent, with the consent of
the Requisite Global Majority, withdraw from the Restricted Cash Account and
deposit in the Trust Account for distribution in accordance with Section 302
of this Indenture, the excess, if any, of (A) amounts then on deposit in
the Restricted Cash Account (after giving effect to any withdrawals therefrom
on such Payment Date) over (B) the Restricted Cash Target Balance. Funds
remaining in the Restricted Cash Account (if any) will be available to pay
reimbursement of any unpaid amount of principal draws on the Policy to


 


55

















 


the Series Enhancer and, on the Legal Final
Maturity Date of the Series of Notes with the latest Legal Final Maturity
Date, principal shortfalls in accordance with the terms hereof. On the Legal
Final Maturity Date for the Notes with the latest Legal Final Maturity Date,
any remaining funds in the Restricted Cash Account shall be deposited in the
Trust Account and subject to the limitations set forth in any such Supplement
distributed in accordance with Section 302 of this Indenture and the
related Supplement.


 


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


 


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


 


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


 


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


 


Section 311. Subordination. The Securities
Intermediary hereby irrevocably subordinates to the security interest of the
Indenture Trustee under this Indenture any and all security interests in, liens
on and rights of setoff against any and all of the Collateral that the
Securities Intermediary may have or acquire on the date hereof or at any time
hereafter until all Outstanding Obligations, and all amounts payable by the
Issuer under this Indenture and all other Related Documents have been paid in
full and all covenants and agreements of the Issuer in this Indenture and all
other Related Documents have been fully performed.


 


Section 312. Manager Transition Account. (a) The
Indenture Trustee shall establish on or before the Closing Date and maintain in
its name, so long as such account is required under the Indenture, an Eligible
Account which shall be designated as the Manager


 


56

















 


Transition Account. The Manager Transition Account
shall only be relocated in accordance with the provisions of Section 303(e) hereof.
On each Payment Date, amounts up to the Manager Transition Amount will be
deposited in the Manager Transition Account in accordance with Section 302
hereto. Funds on deposit in the Manager Transition Account will be used to pay
any Transition Costs and any Operating Expenses (specifically identified or
allocable to the Containers) incurred by the successor Manager not covered by
the Management Fee payable to such successor Manager. Amounts on deposit in the
Manager Transition Account will not otherwise be available to pay Outstanding
Obligations prior to the Legal Final Maturity Date for the Series with the
latest occurring Legal Final Maturity Date. Funds remaining in the Manager
Transition Account (if any) will be available to pay reimbursement of any unpaid
amount of principal draws on the Policy to the Series Enhancer and, on the
Legal Final Maturity Date of the Series of Notes with the latest Legal
Final Maturity Date, principal shortfalls in accordance with Section 312(d) of
this Indenture.


 


(b) On each Determination Date after the
resignation or removal of Carlisle in accordance with the terms of the Related
Documents, the Indenture Trustee shall, in accordance with the directions of
the Requisite Global Majority, withdraw from the Manager Transition Account and
disburse to such Persons any documented Transition Costs incurred by such
Persons. In addition, the Indenture Trustee shall withdraw and disburse to the
Transition Agent fees related to billing and collection performed by the
Transition Agent (as set forth in the Manager Transition Agreement). If the
amount of funds on deposit in the Manager Transition Account is not sufficient
to pay in full all Transition Costs due on any Determination Date, then the
funds then on deposit shall be used to pay all such Transition Costs on a pro rata basis as directed by the
Transition Agent.


 


(c) On each Determination Date, the Indenture
Trustee shall, in accordance with the Manager Report (or, if the Manager fails
to deliver the Manager Report, pursuant to written instructions received from
the Transition Agent subject to the consent of the Requisite Global Majority),
withdraw from the Manager Transition Account and deposit in the Trust Account,
an amount equal to any funds then on deposit in the Manager Transition Account
that are in excess of the then applicable Manager Transition Amount.


 


(d) On the Legal Final Maturity Date for the Series with
the latest Legal Final Maturity Date, any remaining funds in the Manager
Transition Account shall be deposited in the Trust Account and, subject to any
limitations set forth in the related Supplement, distributed in accordance with
Section 302 of this Indenture and the related Supplement.


 


57

















 


ARTICLE IV


 


COLLATERAL


 


Section 401. Collateral. (a) The
Notes and the obligations of the Issuer hereunder shall be obligations of the
Issuer as provided in Section 203 hereof. The Indenture Trustee, on behalf
of the Noteholders, each Interest Rate Hedge Provider and each Series Enhancer
shall also have the benefit of, and the Notes shall be secured by and be
payable from, the Issuer’s right, title and interest in the Collateral. The
income, payments and proceeds of such Collateral shall be allocated to each
such secured party strictly in accordance with the payment priorities set forth
in Section 302 hereof and any related Supplement.


 


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


 


(c) The Indenture Trustee hereby acknowledges the
appointment by the Issuer of the Manager to service and administer the
Collateral in accordance with the provisions of the Management Agreement and
the Intercreditor Agreement, and by executing this Indenture or accepting its
Note, as the case may be, each of the Issuer and the Noteholders, respectively,
authorize the Indenture Trustee to execute the Intercreditor Agreement. So long
as the Management Agreement shall not have been terminated in accordance with
its terms, the Indenture Trustee hereby agrees to provide the Manager with such
documentation, and to take all such actions with respect to the Collateral as
the Manager may reasonably request in writing in accordance with the express
provisions of the Management Agreement provided,
however, that the Indenture Trustee shall be entitled to receive
from the Manager reasonable compensation and cost reimbursement for any such
action. Until such time as the Management Agreement has been terminated in
accordance with its terms, the Manager, on behalf of the Issuer, shall continue
to collect all Accounts and payments on the Leases in accordance with the
provisions of the Management Agreement and the Intercreditor Agreement. Any
Proceeds received directly by the Issuer in payment of any Account or Leases or
in payment for or in respect of any of the Containers or on account of any of
the Leases to which the Issuer is a party shall be promptly deposited by the Issuer
in precisely the form received (with all necessary endorsements) in the Trust
Account, and until so deposited shall be deemed to be held in trust by the
Issuer as the Indenture Trustee’s property and shall continue to be collateral
security for all of the obligations secured by this Indenture and shall not
constitute payment thereof until applied as hereinafter provided. If (i) an
Event of Default has occurred, (ii) a Lease Custodial Transfer shall have
occurred or (iii) a Manager Default has occurred, the Issuer shall, as
reasonably requested by the Indenture Trustee, acting with the consent of or at
the direction of the Requisite Global Majority, to the extent practicable,
deliver, or cause to be delivered, to the Indenture Trustee (or such other Person
as the Indenture Trustee may direct) originals (or, to the extent originals
cannot be delivered, copies) of all other documents evidencing, and relating
to, the sale, lease and delivery of such Containers and the Issuer shall, to
the extent practicable, deliver originals (or, to the


 


58

















 


extent originals cannot be delivered, copies) of all
other documents evidencing and relating to, the performance of any labor,
maintenance, remarketing or other service which created such Accounts,
including, without limitation, all original orders, invoices and shipping
receipts.


 


Section 402. Pro Rata Interest. (a) Except
as expressly provided for herein and in any Supplement, the Notes of all
Outstanding Series shall be equally and ratably entitled to the benefits
of this Indenture without preference, priority or distinction, all in
accordance with the terms and provisions of this Indenture and the related
Supplement. All Notes of a particular Class issued hereunder are and are
to be, to the extent (including any exceptions) provided in this Indenture and
the related Supplement, equally and ratably secured by this Indenture without
preference, priority or distinction on account of the actual time or times of
the authentication or delivery of the Notes so that all Notes of a particular Series and
Class at any time Outstanding (including Notes owned by the Seller and its
Affiliates, other than the Issuer) shall have the same right, Lien and
preference under this Indenture and shall all be equally and ratably secured
hereby with like effect as if they had all been executed, authenticated and
delivered simultaneously on the date hereof.


 


(b) With respect to each Series of Notes,
the execution and delivery of the related Supplement shall be upon the express
condition that, if the conditions specified in Section 701 of this
Indenture are met with respect to such Series of Notes, the security
interest and all other estate and rights granted by this Indenture with respect
to such Series of Notes shall cease and become null and void and all of
the property, rights, and interest granted as security for the Notes of such Series shall
revert to and revest in the Issuer without any other act or formality
whatsoever.


 


Section 403. Indenture Trustee’s Appointment
as Attorney-in-Fact. (a) The Issuer hereby irrevocably constitutes and
appoints the Indenture Trustee, and any officer or agent thereof, with full
power of substitution, as its true and lawful attorney-in-fact with full
irrevocable power and authority in the place and stead of the Issuer and in the
name of the Issuer or in its own name, from time to time, for the purpose of
carrying out the terms of this Indenture (including without limitation, so long
as an Event of Default or Manager Default has occurred and is continuing, at
any time, in the name of the Issuer or its own name, or otherwise, to take
possession of and indorse and collect any checks, drafts, notes, acceptances or
other instrument, general intangible or contract or with respect to any other
collateral and to file any claim or to take any other action or proceeding in
any court of law or equity or otherwise deemed appropriate by the Indenture
Trustee or any Series Enhancer for the purpose of collecting any and all
such moneys due under any account, instrument, general intangible or contract
with respect to the Containers and the other Collateral whenever payable), to
take any and all appropriate action and to execute and deliver any and all
documents and instruments which may be necessary or desirable to accomplish the
purposes of this Indenture; provided,
however, that the Indenture
Trustee has no obligation or duty to take such action or to determine whether
to perfect, file, record or maintain any perfected, filed or recorded document
or instrument (all of which the Issuer shall prepare, deliver and instruct the
Indenture Trustee to execute) in connection with the grant of a security
interest in the Collateral hereunder.


 


(b) The Indenture Trustee shall not exercise the
power of attorney or any rights granted to the Indenture Trustee pursuant to
this Section 403 unless an Event of Default


 


59

















 


shall have occurred and then be continuing. The Issuer
hereby ratifies, to the extent permitted by law, all actions that said attorney
shall lawfully do, or cause to be done, by virtue hereof. The power of attorney
granted pursuant to this Section 403 is a power coupled with an interest
and shall be irrevocable until all Series of Notes and the related
obligations are paid and performed in full.


 


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


 


(d) The Issuer also authorizes the Indenture
Trustee, at any time and from time to time following the occurrence of (i) a
Manager Default, at the written direction of the Requisite Global Majority, to
terminate Carlisle as Manager under the Management Agreement, whereupon the
Indenture Trustee may communicate in its own name, or direct any other Person
(including a successor Manager) to communicate on its behalf, with any party to
any Contract, to notify such Person of the assignment by the Issuer of all of
its right, title and interest in, to and under the Contracts and to direct such
Person that all future payments on the Leases shall be made directly to the
Indenture Trustee and (ii) an Event of Default, to execute, in connection
with the sale of Collateral provided for in Article VIII hereof, any
endorsements, assignments or other instruments of conveyance or transfer with
respect to the Collateral.


 


(e) If the Issuer fails to perform or comply with
any of its agreements contained herein and a Responsible Officer of the
Indenture Trustee shall receive notice of such failure, the Indenture Trustee, with
the consent of, or acting at the direction of, the Requisite Global Majority,
shall perform or comply, or otherwise cause performance or compliance, with
such agreement; provided that the Indenture Trustee shall have no obligation to
so perform or comply if it has reasonable grounds to believe that payment of
its expenses and interest thereon (as set forth in the following sentence) is
not reasonably assured. The reasonable expenses, including attorneys’ fees and
expenses, of the Indenture Trustee incurred in connection with such performance
or compliance, together with interest thereon at the rate specified in the
related Supplement, shall be payable by the Issuer to the Indenture Trustee on
demand in accordance with Section 302 hereto and shall constitute
additional Outstanding Obligations secured hereby.


 


(f) So long as an Event of Default or Manager
Default has occurred and is continuing, at any time, to enter and use the
premises of the Issuer and make use of the Issuer’s computer database, software
system and all other books and records relating to the Containers and the other
Collateral.


 


(g) The Issuer hereby grants, and agrees to grant
from time to time, to the Indenture Trustee a non-exclusive royalty-free
license of all its intellectual property rights arising in connection with the
software system used by the Issuer in connection with the Containers, such
license to be irrevocable until the later of (a) the last date on which
any Note was Outstanding or (b) the date on which all amounts owed to any Series Enhancer
pursuant to the terms of the Indenture and any related Enhancement Agreement
shall have been paid in full,


 


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subject, in the case of intellectual property rights
held under license by the Issuer, to the prior consent of the relevant
licensor, if required, which consent the Issuer undertakes to use its
reasonable efforts forthwith to obtain at its own expense on terms reasonably
acceptable to the Indenture Trustee and any Series Enhancer.


 


(h) Regardless of whether an Event of Default or
Manager Default has occurred, upon the failure of the Manager to comply with
the provisions of Section 7.08(b) or (c) of the Management
Agreement (and so long as an Event of Default or Manager Default has occurred,
whether or not the Manager has complied with the provisions of Section 7.08(b) or
(c), the Issuer gives the Indenture Trustee the right to execute and deliver
those agreements, instruments, documents and papers (including, without
limitation, deeds of trust) as the Manager may otherwise be required to file in
accordance with the provisions of Section 7.08(b) or (c) thereof;
provided that the Indenture Trustee shall give the Manager at least five (5) Business
Days written notice prior to taking any action.


 


Section 404. Release of Security Interest.
The Indenture Trustee, at the written direction of the Manager, shall release
from the Lien of this Indenture, any Container and the Related Assets sold or
transferred pursuant to Section 606(a) hereof. In effectuating such
release, the Indenture Trustee shall be provided with and be entitled to rely
on: (A) so long as no Early Amortization Event is then continuing or would
result after giving effect to such sale, a written direction of the Manager
(with a copy to each Series Enhancer) identifying each Container or other
items to be released from the Lien of this Indenture in accordance with the
provisions of this Section 404 accompanied by an Asset Base Certificate,
or (B) if an Early Amortization Event is then continuing or would result
from such sale, all of the following: (i) the items set forth in (A) and
(ii) a certificate from the Manager (with a copy to the Requisite Global
Majority, each Series Enhancer and the Lead Deal Agent) stating that such
release is in compliance with Sections 404 and 606(a) hereof and (iii) not
less than five (5) days prior written notice to the Requisite Global
Majority of such release.


 


The Indenture Trustee will, promptly upon receipt of
such certificate from the Manager and at the Issuer’s expense, execute and
deliver to the Issuer, the Seller, the Manager, each Deal Agent, each Series Enhancer,
the Collateral Agent, the Transition Agent and each Interest Rate Hedge
Provider, a non-recourse certificate of release substantially in the form of Exhibit A
hereto and such additional documents and instruments as that Person may
reasonably request to evidence the termination and release from the Lien of
this Indenture of such Container and the other related items of Collateral.


 


Section 405. Administration of Collateral.
(a) The Indenture Trustee shall as promptly as practicable notify the
Noteholders, each Series Enhancer, each Deal Agent, the Collateral Agent,
the Transition Agent and each Interest Rate Hedge Provider of any Manager
Default of which a Responsible Officer has actual knowledge. If a Manager
Default shall have occurred and then be continuing, the Indenture Trustee, in
accordance with the written direction of the Requisite Global Majority, shall
deliver to the Manager (with a copy to the Transition Agent, the Collateral
Agent, each Deal Agent, each Rating Agency, Interest Rate Hedge Provider and
each Series Enhancer) a Manager Termination Notice terminating the Manager
of its responsibilities in accordance with the terms of the Management
Agreement. If the Transition Agent is unable to locate and qualify a successor
Manager acceptable to the Requisite Global


 


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Majority within the period set forth in Section 801(xi)
after the date of delivery of the Manager Termination Notice, then the
Indenture Trustee may (and shall upon direction of the Requisite Global
Majority) appoint, or petition a court of competent jurisdiction to appoint as
a successor Manager, a Person acceptable to the Requisite Global Majority,
having a net worth of not less than $5,000,000 and whose regular business
includes equipment leasing or servicing. In connection with the appointment of
a replacement Manager, the Indenture Trustee or Transition Agent may, with the
written consent of the Requisite Global Majority, make such arrangements for
the compensation of such replacement Manager out of Collections as the
Indenture Trustee, the Transition Agent and such successor Manager shall agree;
provided, however, that no such revised compensation
shall be in excess of the Management Fees permitted the Manager under the
Management Agreement and the arrangement for reimbursement of expenses shall be
no more favorable than that set forth in the Management Agreement unless (i) the
Requisite Global Majority shall approve such higher amounts or (ii) the
outgoing Manager shall agree to pay, out of its own funds, the successor
Manager any such excess compensation and reimbursement to the successor
Manager; provided, further, that in no event shall any of the
Indenture Trustee, any Series Enhancer, any Interest Rate Hedge Provider
or the Transition Agent be liable to any successor Manager for the Management
Fees or any additional amounts (including expenses and indemnifications)
payable to such successor Manager, either pursuant to the Management Agreement
or otherwise. The Indenture Trustee and such successor Manager shall take such
action, consistent with the Management Agreement, as shall be necessary to
effectuate any such succession including the exercise of the power of attorney
granted by the Manager pursuant to Section 11.03 of the Management
Agreement.


 


(b) Upon a Responsible Officer’s obtaining actual
knowledge or the receipt of notice by the Indenture Trustee that any repurchase
obligations of the Seller under Section 2.02 of the Contribution and Sale
Agreement have arisen, the Indenture Trustee shall notify the Series Enhancers,
each Deal Agent and the Requisite Global Majority of such event and shall
enforce such repurchase obligations at the direction of the Requisite Global
Majority.


 


Section 406. Quiet Enjoyment. The security
interest hereby granted to the Indenture Trustee by the Issuer is subject to
the right of any Lessee to the quiet enjoyment of the related Container so long
as such Lessee is not in default under the Lease therefor and the Manager under
the Management Agreement continues to receive all amounts payable under the
related Contract.


 


Section 407. Intercreditor Agreement. The
Manager and all parties (including the Indenture Trustee and other secured
parties) which have an interest in the Contract Payments (the “CLI Creditors”)
have entered into an intercreditor agreement (the “Intercreditor Agreement”)
that (i) grants a security interest in and creates a lien on the Manager
Collection Account in favor of the CLI Creditors and such other creditors which
from time to time shall become party thereto (the “Other Creditors”, and
together with the CLI Creditors, the “Intercreditor Secured Parties”) and
appoints U.S. Bank National Association, as collateral agent (the “Collateral
Agent”) to act for the benefit of the Intercreditor Secured Parties, (ii) delineates
and adopts a specific identification and allocation methodology for Gross
Revenues and Operating Expenses to each container in the container fleet owned
and/or managed by the Manager (the “Manager Fleet”), (iii) establishes the
relative priorities of the CLI Creditors to the Manager with respect to the
Manager Fleet, (iv) contains disclaimer provisions made by each


 


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Secured Party whereby each such Secured Party
disclaims interest in any part of the Manager Fleet, the Manager Collection
Account and the associated proceeds other than that portion which shall have
been pledged under its own related facility, (v) appoints the Collateral
Agent to act on behalf of the parties named therein as the custodian and bailee
for such parties for purposes of marking the Leases, and after the occurrence
of an Early Amortization Event, an Event of Default or certain events set forth
in the Management Agreement, to take possession of the Leases and (vi) provides
for the execution of an account control agreement which shall establish “control”,
as defined under the UCC as in effect in the applicable jurisdiction, of the
Manager Collection Account by the Collateral Agent. By no later than forty-five
(45) days after the Closing Date (or by such later date as shall be acceptable
to the Requisite Global Majority in its sole discretion), the Issuer shall, and
shall cause the Manager to, enter into an amendment to the Intercreditor
Agreement as to certain matters, as required by the Requisite Global Majority,
which amendment shall be in form and substance satisfactory to the Requisite
Global Majority.


 


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ARTICLE V


 


RIGHTS OF NOTEHOLDERS;
ALLOCATION


AND APPLICATION OF
COLLECTIONS;


REQUISITE GLOBAL MAJORITY


 


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


 


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


 


Section 503. Determination of Requisite Global
Majority. A Requisite Global Majority shall exist with respect to any
action proposed to be taken pursuant to the terms of this Indenture or any
Supplement if (a) the Control Party or Control Parties representing more
than fifty percent (50%) of the aggregate principal balance (or, with respect
to any Series of VFNs, prior to a Conversion Event, the Existing
Commitment thereof) of all Series then Outstanding shall approve or direct
such proposed action (in making such a determination, each Control Party shall
be deemed to have voted the entire aggregate principal balance (or, with
respect to any Series of VFNs, prior to a Conversion Event, the Existing
Commitment thereof) of the related Series in favor of, or in opposition
to, such proposed action, as the case may be) and (b) unless Control
Parties representing more than sixty-six and two-thirds percent (66 2/3%) of
the aggregate principal balance (or, with respect to any Series of VFNs,
prior to a Conversion Event, the Existing Commitment thereof) of all Series then
Outstanding shall have approved or directed such proposed action, Ambac, for so
long as Ambac shall be designated the Control Party for any Series then
Outstanding, shall have also approved or directed such proposed action. Solely
to the extent that the Noteholders comprise the Requisite Global Majority, the
Indenture Trustee shall be responsible for determining the applicable Requisite
Global Majority in accordance with the terms of this Section 503 based on
information provided by the Note Registrar.


 


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ARTICLE VI


 


COVENANTS


 


For so long as any Obligation of the Issuer under this
Indenture or any Related Document has not been paid and/or performed, the
Issuer shall observe each of the following covenants:


 


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


 


(b) The Issuer will take all actions as are
necessary to insure that all material taxes and governmental claims, if any, in
respect of the Issuer’s activities and assets are paid before the same become
due except for such claims as are being contested in good faith by appropriate
proceedings and for which adequate reserves are maintained, provided, however, that in no event shall
any such contest result in a material risk of loss of any asset of the Issuer.


 


Section 602. Maintenance of Office. The
principal place of business and chief executive office of the Issuer is located
at One Maynard Drive, Park Ridge, New Jersey 07656. The Issuer shall at all
times maintain its principal place of business or chief executive office within
the United States, and shall not establish a new location (within the United
States) for its principal place of business or chief executive office unless (i) the
Issuer shall provide each of the Indenture Trustee, each Rating Agency, each
Interest Rate Hedge Provider and each Series Enhancer not less than thirty
(30) days’ prior written notice of its intention so to do, clearly describing
such new location and providing such other information in connection therewith
as the Indenture Trustee, the Transition Agent, the Lead Deal Agent, each
Interest Rate Hedge Provider or each Series Enhancer may reasonably
request, and (ii) not less than five (5) days’ prior to the effective
date of such relocation, the Issuer shall have taken, at its own cost
(including payment of all registration fees), all action necessary so that such
change of location does not impair the security interest of the Indenture
Trustee in the Collateral, or the perfection of the sale or contribution of the
Containers to the Issuer, and shall have delivered to the Indenture Trustee,
each Deal Agent, each Interest Rate Hedge Provider and each Series Enhancer
copies of all filings required in connection therewith together with an Opinion
of Counsel, reasonably satisfactory to the Requisite Global Majority, to the effect
that such change of location does not impair either the perfection or priority
of the Indenture Trustee’s security interest in the Collateral.


 


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


 


Section 604. Protection of Collateral. The
Issuer will from time to time execute and deliver all amendments hereto and all
such financing statements, continuation statements,


 


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instruments of further assurance and other
instruments, and will, upon the reasonable request of the Manager, the
Indenture Trustee, each Deal Agent, any Interest Rate Hedge Provider or any Series Enhancer,
take such other action necessary or advisable to:


 


(a) grant more effectively the security interest
in all or any part of the Collateral;


 


(b) maintain or preserve the Lien of this
Indenture (and the priority hereof) or carry out more effectively the purposes
hereof including executing and filing such documents as may be required under
any international convention for the perfection of interests in Containers that
may be adopted subsequent to the date of this Indenture;


 


(c) to the extent permitted by Applicable Law,
perfect, publish notice of, or protect the validity of the security interest in
the Collateral created pursuant to this Indenture;


 


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


 


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


 


(f) pay any and all taxes levied or assessed upon
all or any part of the Collateral before the same become due except for such
taxes as are being contested in good faith by appropriate proceedings and for
which adequate reserves are maintained, provided,
however, that in no event shall any such contest result in a
material risk of loss of any asset of the Issuer.


 


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


 


Section 605. Performance of Obligations. (a) Except
as otherwise permitted by this Indenture, the Management Agreement or the
Contribution and Sale Agreement, the Issuer will not take, or fail to take, any
action, and will use its best efforts not to permit any action to be taken by
others, which would release any Person from any of such Person’s covenants or
obligations under any agreement or instrument included in the Collateral, or
which would result


 


66

















 


in the amendment, hypothecation, subordination,
termination or discharge of, or impair the validity or effectiveness of, any
such agreement or instrument.


 


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


 


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


 


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


 


(i) in connection
with a sale pursuant to Section 815 hereof;


 


(ii) in connection
with a substitution pursuant to Section 3.04 of the Contribution and Sale
Agreement;


 


(iii) sales of
Containers for net Sales Proceeds (after deducting any costs incurred in
connection with each such sale) of not less than the sum of the Net Book Value
of the Containers to be sold, regardless of whether such sales are considered
to have been made in the ordinary course of business;


 


(iv) so long as an
Early Amortization Event or Event of Default is not then continuing or would
result from such sale of Containers, sales of Containers, in the ordinary
course of business (including any such sales resulting from the sell/repair
decision of the Manager) regardless of the net Sales Proceeds realized
therefrom;


 


(v) in connection
with a sale pursuant to a Direct Finance Lease;


 


(vi) sales of
obsolete or irreparably damaged Containers;


 


(vii) for so long as
an Early Amortization Event, other than an Early Amortization Event resulting
from an Asset Base Deficiency, shall have occurred and be continuing and no
Early Amortization Event resulting from an Asset Base Deficiency or Event of
Default would result from such sale of Containers, sales of Containers to
unaffiliated third parties in bonafide arm’s length transactions within the
normal course of business for net Sales Proceeds less than the sum of the Net
Book Value of such Containers (including any such sales resulting from the
sell/repair decision of the Manager), so long as the sum of the Net Book Values
of all such Containers shall not exceed an amount equal to (A) ten percent
(10)% per annum and (B) a cumulative amount on an aggregate basis of
twenty-


 


67

















 


five percent (25%) determined in each case based on
the average Aggregate Net Book Value as of the last day of each of the four (4) immediately
preceding Collection Periods, as determined at the time of such event; or


 


(viii) for the
avoidance of doubt, for so long as an Asset Base Deficiency or Event of Default
shall have occurred and be continuing or shall result from such sale of
Containers, sales of Containers for net Sales Proceeds (after deducting any
costs incurred in connection with such sale) less than Net Book Value shall
only be permitted with the prior written consent of the Requisite Global
Majority;


 


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


 


(c) (i) permit the validity or effectiveness
of this Indenture to be impaired, or (ii) permit the Lien of this
Indenture with respect to the Collateral to be subordinated, terminated or
discharged, except as permitted in accordance with Section 404 or Article VII
hereof, or (iii) permit any Person to be released from any covenants or
obligations with respect to such Collateral, except as may be expressly
permitted by the Management Agreement.


 


Section 607. Non-Consolidation of the Issuer.
(a) The Issuer shall be operated in such a manner that it shall not be
substantively consolidated with the trust estate of any other Person in the
event of the bankruptcy or insolvency of the Issuer or such other Person.
Without limiting the foregoing the Issuer shall (1) conduct its business
in its own name, (2) maintain its books and records separate from those of
any other Person, (3) maintain its bank accounts separate from those of
any other Person, (4) maintain separate financial statements, showing its
assets and liabilities separate and apart from those of any other Person, (5) pay
its own liabilities and expenses only out of its own funds, (6) enter into
a transaction with an Affiliate only if such transaction is intrinsically fair,
commercially reasonable and on the same terms as would be available in an arm’s
length transaction with a Person or entity that is not an Affiliate, (7) allocate
fairly and reasonably any overhead expenses that are shared with an Affiliate, (8) hold
itself out as a separate entity and maintain adequate capital in light of its contemplated
business operations and (9) observe all other appropriate organizational
formalities.


 


(b) Notwithstanding any provision of law which
otherwise empowers the Issuer, the Issuer shall not (1) hold itself out as
being liable for the debts of any other person, (2) act other than in its
corporate name and through its duly authorized officers or agents, (3) engage
in any joint activity or transaction of any kind with or for the benefit of any
affiliate including any loan to or from or guarantee of the indebtedness of any
Affiliate, except payment of lawful distributions to its stockholders, (4) other
than as permitted in the Management Agreement and the Intercreditor Agreement,
commingle its funds or other assets with those of any other person, (5) create,
incur, assume, guarantee or in any manner become liable in respect of any
indebtedness (except pursuant to this Indenture) other than trade payables and
expense accruals incurred in the ordinary course of its business or (6) take
any other action that would be


 


68

















 


inconsistent with maintaining the separate legal
identity of the Issuer or engage in any other activity not contemplated by this
Indenture and related documents.


 


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


 


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


 


Section 610. Other Debt. The Issuer shall
not contract for, create, incur, assume or suffer to exist any Indebtedness
other than (i) the Notes issued pursuant to this Indenture or any
Supplement issued hereunder, (ii) any Management Fee, Manager Advances and
all other amounts payable pursuant to the provisions of the Management
Agreement, (iii) any Interest Rate Hedge Agreements entered into in
accordance with Section 630 hereof, and (iv) trade payables and
expense accruals incurred in the ordinary course and which are incidental to
the purposes permitted pursuant to the Issuer’s organizational documents.


 


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


 


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


 


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


 


(c) The Issuer shall give prior written notice to
the Rating Agencies of any action pursuant to this Section 612.


 


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Section 613. Other Agreements. (a) The
Issuer will not after the date of the issuance of the Notes enter into, or
become a party to, any agreements or instruments other than this Indenture, the
Supplements, the Contribution and Sale Agreement, the Intercreditor Agreement,
the Note Purchase Agreements, the Manager Transition Agreement, the Insurance
and Indemnification Agreement or any other agreement(s) contemplated
hereby or thereby or related hereto or thereto, including, without limitation, (i) any
agreement(s) for disposition of the Sold Assets permitted by Sections 606
or 816 hereof and (ii) any agreement(s) for the sale or re-lease of a
Container made in accordance with the provisions of the Management Agreement.


 


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


 


Section 614. Charter Documents. The Issuer
will not amend or modify its organizational documents without the prior written
consent of the Requisite Global Majority and satisfaction of the Rating Agency
Condition.


 


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


 


Section 616. Permitted Activities; Compliance
with Organizational Document. The Issuer will not engage in any activity or
enter into any transaction except as permitted under its organizational
documents as in effect on the date on which this Indenture is executed. The
Issuer will observe all company, organizational and managerial procedures
required by its organizational documents and applicable law. The Issuer shall
keep complete minutes of the meetings and other proceedings of the Issuer.


 


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


 


Section 618. Payments of Collateral. If
the Issuer shall receive from any Person any payments with respect to the Collateral
(to the extent such Collateral has not been released from the Lien of this
Indenture in accordance with Section 404 hereof), the Issuer shall receive
such payment in trust for the Indenture Trustee, as secured party hereunder,
and subject to the Indenture Trustee’s security interest and shall immediately
deposit such payment in the Trust Account.


 


Section 619. Notices. The Issuer shall
notify the Indenture Trustee, the Lead Deal Agent, the Transition Agent, the
Interest Rate Hedge Provider and each Series Enhancer in writing of any of
the following immediately upon learning of the occurrence thereof, describing
the same and, if applicable, the steps being taken by the Person(s) affected
with respect thereto:


 


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


 


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


 


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


 


(d) Other Events. The occurrence of (i) an
Early Amortization Event or (ii) other events that may cause (with the
giving of notice or the passage of time, or both) an Event of Default.


 


Section 620. Books and Records. The Issuer
shall, and shall cause the Manager to, maintain complete and accurate books and
records in which full and correct entries in conformity with GAAP shall be made
of all dealings and transactions in relation to its business and activities. In
connection with each transfer of Sold Assets, the Issuer shall report, or cause
to be reported, on its financial records the transfer of the Sold Assets as a
sale under GAAP. The Issuer will ensure that no financial statement, nor any
consolidated financial statements of the Issuer, suggests that the assets of
the Issuer are available to pay the debts of the Seller or the Manager. The
Issuer shall (i) keep complete minutes of the meetings and other
proceedings of the Issuer and (ii) continuously maintain the resolutions,
agreements and other instruments underlying the sale and transfer of the Sold
Assets as official records of the Issuer.


 


Section 621. Taxes. The Issuer shall, or
shall cause the Manager to, pay when due, all of its taxes, unless, and only to
the extent that, the Issuer is contesting such taxes in good faith and by
appropriate proceedings and the Issuer has set aside on its books such reserves
or other appropriate provisions therefor as may be required by GAAP; provided,
however, that in no event shall any such contest be reasonably likely to result
in a material risk of loss of any asset to the Issuer.


 


Section 622. Subsidiaries. The Issuer
shall not create any Subsidiaries.


 


Section 623. Investments. The Issuer shall
not make or permit to exist any Investment in any Person except for Investments
in Eligible Investments made in accordance with the terms of this Indenture.


 


Section 624. Use of Proceeds. The Issuer
shall use the proceeds of the Notes only (i) for the purchase of
Containers, the other Sold Assets and the other Collateral, (ii) to pay
outstanding indebtedness of the Issuer, (iii) to pay the cost of issuance
of the Notes and (iv) for other general corporate purposes. In addition,
the Issuer shall not permit any proceeds of the Notes to be used, either
directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of “purchasing or carrying any margin stock” within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System, as
amended from time to time, and shall furnish to each Holder, upon its request,
a statement in conformity with the requirements of Regulation U.


 


Section 625. Asset Base Certificate. The
Issuer shall, or shall cause the Manager to, prepare and deliver (or cause to
be prepared and delivered) to the Indenture Trustee,


 


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each Series Enhancer, each Deal Agent, the
Transition Agent and each Holder of a VFN, on or before each Determination
Date, an Asset Base Certificate as of the immediately preceding Record Date.


 


Section 626. Financial Statements. The
Issuer shall prepare and deliver to the Indenture Trustee, each Series Enhancer,
each Interest Rate Hedge Provider, each Rating Agency, each Deal Agent, the
Transition Agent and each Holder of a VFN, or shall cause the Manager to
prepare and deliver pursuant to the Management Agreement, (i) financial
statements of the Issuer and the consolidated quarterly financial statements of
the Manager within sixty (60) days of the end of each fiscal quarter and (ii) annual
financial statements of the Issuer and the consolidated annual financial
statements of the Manager, audited by their regular Independent Accountants,
within one hundred twenty (120) days of the end of each fiscal year. All
financial statements shall be prepared in accordance with GAAP. Delivery of
such reports, information and documents to the Indenture Trustee is for
informational purposes only and the Indenture Trustee’s receipt of such shall
not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Issuer’s
compliance with any of its covenants hereunder (as to which the Indenture
Trustee is entitled to rely exclusively on Officer’s Certificates).


 


Section 627. UNIDROIT Convention. The
Issuer shall comply with the terms and provisions of the UNIDROIT Convention or
any other internationally recognized system for recording interests in or liens
against shipping containers at the time that such convention is adopted by the
container leasing industry.


 


Section 628. Other Information. For so
long as any of the Notes are “restricted securities” within the meaning of Rule 144(a)(3) under
the Securities Act and the Issuer is not subject to Section 13 or 15(d) of
the Exchange Act, the Issuer will, and shall cause the Manager to, (i) provide
or cause to be provided to any Holder of Notes and any prospective purchaser
thereof designated by such a Holder, upon the request of such Holder or
prospective purchaser, the information required to be provided to such Holder
or prospective purchaser by Rule 144A(d)(4) under the Securities Act;
and (ii) update such information to prevent such information from becoming
materially false and materially misleading in a manner adverse to any
Noteholder.


 


Section 629. Amendment of Intercreditor
Agreement. The Issuer shall not consent to any amendment, modification or
revision to the Intercreditor Agreement without the prior written consent of
the Requisite Global Majority and prior written notice to the Rating Agencies,
except for any supplement thereto needed to designate an additional “Managed
Equipment Owner” or “Managed Equipment Lender”, as each such term is defined in
the Intercreditor Agreement; provided that any amendment to the pooling
methodology shall require the prior written consent of all Control Parties for
each Series.


 


Section 630. Hedging Requirements. (a) The
Issuer shall at all times enter into and maintain one or more Interest Rate
Hedge Agreements with one or more Interest Rate Hedge Providers, each of which
shall be an Eligible Interest Rate Hedge Counterparty at the time it enters
into an Interest Rate Hedge Agreement, with respect to the aggregate minimum contractual
rental payments for all Direct Finance Leases to which an Eligible Container is
then


 


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subject. Each Interest Rate Hedge Agreement shall have
a notional balance equal to the sum of the remaining minimum contractual rental
payments that will be payable pursuant to the terms of such Direct Finance
Lease prior to its scheduled expiration date and shall provide for an
amortization of its notional balance in accordance with the scheduled
amortization of such rental payments.


 


(b) In addition to the requirement set forth in Section 630(a),
the Issuer shall enter into and maintain one or more Interest Rate Hedge
Agreements, inclusive of the Interest Rate Hedge Agreements entered into in
accordance with the prior paragraph, having an average aggregate notional
balance of not less than an amount equal to ninety percent (90%) of the average
of the Aggregate Note Principal Balance each as determined on such
Determination Date (after giving effect to all payments to be made on the
corresponding Payment Date) and the immediately preceding two (2) Determination
Dates. The Issuer will not allow the aggregate notional balance of such
Interest Rate Hedge Agreements to exceed one hundred percent (100%) of the then
Aggregate Note Principal Balance.


 


(c) If the Issuer, or Manager on behalf of
Issuer, fails to maintain the requisite level of hedging set forth in
paragraphs (a) and (b) of this Section 630, the Requisite Global
Majority shall have the right, in its sole discretion, to direct the Indenture
Trustee to enter into Interest Rate Hedge Agreements on the Issuer’s behalf and
at the expense of the Issuer. In the event the Requisite Global Majority
determines to direct the Indenture Trustee to enter into an Interest Rate Hedge
Agreement on the Issuer’s behalf, the Requisite Global Majority shall promptly
send a copy of any such agreement to the Issuer and may provide the Indenture
Trustee and Manager with a written direction to deposit in the Trust Account
certain amounts to purchase, or reimburse the Requisite Global Majority or a
third party for purchase, such Interest Rate Hedge Agreement.


 


(d) All payments made by an Interest Rate Hedge
Provider shall be paid directly to the Indenture Trustee and deposited directly
into the Trust Account in accordance with Section 302(a) hereof.


 


Section 631. Depreciation Policy. The
Issuer will not, without the prior written consent of the Requisite Global
Majority in each instance, amend or modify the depreciation policy in effect on
the Closing Date as outlined in clause (i) of the definition of the term “Depreciation
Expense”.


 


Section 632. OFAC. The Issuer shall not
lease, or consent to the sublease of, a Container to a “prohibited person” or
an entity organized in a “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 the Office of Foreign Assets
Control), then the Issuer shall, within ten (10) Business Days after
obtaining knowledge thereof, remove such Container from the Asset Base for so
long as such condition continues.


 


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ARTICLE VII


 


DISCHARGE OF INDENTURE;
PREPAYMENTS


 


Section 701. Full Discharge. Upon payment
in full in cash of all Outstanding Obligations, the Indenture Trustee shall, at
the written request and at the expense of the Issuer, execute and deliver to
the Issuer such deeds or other instruments as shall be requisite to evidence
the satisfaction and discharge of this Indenture and the Lien created hereby,
and to release the Issuer from its covenants contained in this Indenture and
the related Supplement in connection with the satisfaction and discharge of the
Indenture, the Indenture Trustee shall be entitled to receive an Opinion of
Counsel stating that such satisfaction and discharge is authorized and
permitted.


 


Section 702. Prepayment of Notes. (a) Mandatory
Prepayments. Unless otherwise specified in a Supplement, the Issuer shall
be required to prepay the then Unpaid Principal Balance of all, or a portion
of, one or more Series of Notes then Outstanding if, on any Payment Date,
the Aggregate Note Principal Balance exceeds the Asset Base, and such
Prepayment shall be in the amount of the Supplemental Principal Payment Amount.
The calculations referred to herein shall be evidenced by the Asset Base
Certificate received by the Indenture Trustee on any Determination Date. On each
Payment Date, any Supplemental Principal Payment Amount then due and owing,
shall be applied first to each Series of VFNs then Outstanding on a pro rata basis, in proportion to the
Unpaid Principal Balance of such VFNs, until the principal balances of all VFNs
have been paid in full, and then to all other Series of Notes then
Outstanding on a pro rata basis,
in proportion to the Unpaid Principal Balance of each such other Series of
Notes. Notwithstanding the foregoing, if sufficient funds are not available to
allow the Issuer to prepay the principal balance of the VFNs in an amount equal
to the Asset Base Deficiency on such Payment Date, then the amount of any
Supplemental Principal Payment Amount to be actually paid on such Payment Date
shall be allocated among all Series of Notes then Outstanding on a pro rata basis, in proportion to the
Unpaid Principal Balance of such Notes.


 


Any Prepayment of Notes made pursuant to the
provisions of this Section 702(a) shall be accomplished by a deposit
of funds into the Trust Account.


 


(b) Voluntary Prepayment. The Issuer may,
from time to time, make an optional Prepayment of principal of the Notes of any
Series at the times, in the amounts and subject to the conditions set
forth in the related Supplement or in the Supplement for any other Series of
Notes then Outstanding. The Issuer shall promptly confirm any telephonic notice
of Prepayment in writing. Any optional Prepayment of principal made by the
Issuer pursuant to this Section 702 shall be in a minimum amount of Two
Hundred Fifty Thousand Dollars ($250,000) and shall also include any early
termination fees owing pursuant to the terms of the Insurance Agreement and any
Interest Rate Hedge Agreement and accrued interest to the date of the
Prepayment on the amount being prepaid. Any optional Prepayment made pursuant
to the provisions of this Section 702(b) shall be accomplished by a
deposit of funds directly into the Trust Account and, unless otherwise
specified in the Supplement for any Series of Notes then Outstanding, may
be applied by the Issuer to reduce the Unpaid Principal Balance of one or more


 


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Series of Notes then Outstanding, such Series to
be selected in the sole discretion of the Issuer. The Issuer has agreed that
the determination of the Containers to be released from the lien of the
Indenture pursuant to any such Prepayment shall be performed on a
non-discriminatory basis, consistent with the covenants and obligations of the
Issuer and the Manager under the Related Documents.


 


(c) Repayment of Interest Rate Hedge Provider.
If the Issuer has elected to make a voluntary Prepayment in accordance with the
provisions of Section 702(b) above or is required to make a
Prepayment in accordance with the provisions of Section 702(a) above
as the result of a sale of one or more Containers (and for which no replacement
container is then provided), then the amount of such Prepayment shall include
an amount necessary (determined by the Lead Deal Agent) to reduce the notional
balance of all interest rate swap agreements maintained by the Issuer in
accordance with the terms of Section 630(a) and (b) of this Indenture,
such that the remaining notional balances of all remaining interest rate swap
agreements shall not exceed the level of interest rate swap agreements that can
then be supported by the remaining Containers (as applicable) and Leases, and
to pay in full any termination charges assessed by the Interest Rate Hedge
Provider. So long as no Early Amortization Event or Event of Default is then
continuing, the Issuer (or the Manager on its behalf) may exercise its
discretion in selecting the specific transactions and the notional amounts
thereof to be terminated. If an Early Amortization Event or Event of Default is
then continuing the outstanding transactions will be terminated on a pro rata basis, based on the respective
notional amounts for each remaining calculation period so that the remaining
notional amounts for all future calculation periods under such transactions
shall comply with the requirements of Section 630(a) and (b) hereof.


 


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


 


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ARTICLE VIII


 


DEFAULT PROVISIONS AND
REMEDIES


 


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


 


(i) Default (in each
case without giving effect to any Manager Advances made) for any reason
(including, without limitation, whether or not funds available to the Indenture
Trustee are sufficient for such purpose) in (A) the payment on any Payment
Date of any interest payments (which, for the avoidance of doubt, shall not
include any VFN Fees) due and owing to the Holders of Notes of any Series or
(B) the payment on the Legal Final Maturity Date of a Series of the
then Unpaid Principal Balance of such Series of Notes;


 


(ii) Default (in
each case without giving effect to any Manager Advances made) for any reason
(including, without limitation, whether or not funds available to the Indenture
Trustee are sufficient for such purpose) in (A) the payment on any Payment
Date of any Indenture Trustee Fees then due and payable or (B) the payment
of a Premium or other amounts due and owing any Series Enhancer, and in
either case, the continuation of such default for more than three (3) Business
Days after the same shall become due and payable;


 


(iii) Default (in each
case without giving effect to any Manager Advances made) for any reason
(including, without limitation, whether or not funds available to the Indenture
Trustee are sufficient for such purpose) in the payment of any other amounts
not dealt with in clauses (1) and (2) then owing to the Holders of
Notes of any Series and the continuation of such default for more than
thirty (30) days after the same shall have become due and payable;


 


(iv) Default in the
observation or performance of any covenant of the Issuer set forth in Sections
606, 607, 608, 610, 611, 612, 613, 614, 615, 616, 622, 623, 629 or 631 hereof
or (y) the Seller set forth in Sections 4.01(c), (d), (k) or (m) of
the Contribution and Sale Agreement, which continues for a period of fifteen
(15) days after the earliest of (x) any Senior Executive Officer of the
Issuer or the Seller, as the case may be, first acquiring knowledge thereof, (y) the
Indenture Trustee’s giving written notice thereof to the Issuer or the Seller,
as the case may be, or (z) any Noteholder or Series Enhancer giving
written notice thereof to the Issuer or the Seller, as the case may be, and the
Indenture Trustee;


 


(v) Default in the
observation or performance of any other covenant (not covered by clause (iv) hereof)
of the Issuer set forth in the Indenture and other Related Documents, which
continues for a period of thirty (30) days after


 


76

















 


the earliest of (x) any Senior Executive Officer
of the Issuer or the Seller, as the case may be, first acquiring knowledge
thereof, (y) the Indenture Trustee’s giving written notice thereof to the
Issuer or the Seller, as the case may be, or (z) any Noteholder or Series Enhancer
giving written notice thereof to the Issuer or the Seller, as the case may be,
and the Indenture Trustee;


 


(vi) Any
representation or warranty of the Issuer or the Seller (other than, in the case
of the Seller, the Container Representations and Warranties) made in any other
Related Document shall prove to be incorrect in any material respect as of the
time when the same shall have been made which continues and, if capable of
cure, the continuance of such condition for a period of thirty (30) days after
the earliest of (i) any Senior Executive Officer of the Issuer or the
Seller, as the case may be, first acquiring knowledge thereof, (ii) the
Indenture Trustee’s giving written notice thereof to the Issuer or the Seller,
as the case may be, or (iii) any Noteholder or Series Enhancer giving
written notice thereof to the Issuer or the Seller, as the case may be, and the
Indenture Trustee;


 


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


 


(viii) The entry of
a decree or order for relief by a court having jurisdiction in respect of the
Issuer in any involuntary case under any applicable Insolvency Law, or other
similar law now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee, or sequestrator (or other similar official) for
the Issuer or for any substantial part of its properties, or ordering the
winding up or liquidation of its affairs, and the continuance of any such
decree or order unstayed and in effect for a period of sixty (60) consecutive
days;


 


(ix) The Indenture
Trustee shall fail for any reason to have a first priority perfected security
interest in the Containers, the Leases related thereto and, to the extent
permitted by Applicable Law, the other Collateral (unless cured within ten (10) days);


 


(x) Any of the
Related Documents shall be cancelled, terminated, revoked or rescinded
otherwise than in accordance with the terms thereof, or any action at law, suit
or in equity or other legal proceeding to cancel, revoke or rescind any of the
Related Documents shall be commenced by, or on behalf of, any party thereto or
any of their respective members or stockholders (as the case may be), or any
court of competent jurisdiction or any other governmental or regulatory
authority or agency of competent jurisdiction shall make a determination that,
or issue a judgment, order, decree or ruling to the effect that,


 


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any one or more of the Related Documents is illegal,
invalid or unenforceable in accordance with the terms thereof;


 


(xi) All of the following:
(A) a Manager Default shall have occurred and be continuing, (B) the
Requisite Global Majority has directed the Indenture Trustee and the Transition
Agent to locate a successor Manager in accordance with the terms of the
Indenture, the Manager Transition Agreement and the other Related Documents and
(C) no successor Manager shall have assumed the duties of the Manager
pursuant to a successor management agreement in accordance with the terms of
the Management Agreement and the other Related Documents from the earlier of (i) sixty
(60) days from the date on which the Requisite Global Majority shall direct the
Indenture Trustee and the Transition Agent to locate a successor Manager in
accordance with the terms of the Indenture and other Related Documents and at
any time during such sixty (60) day period an Asset Base Deficiency shall exist
or (ii) ninety (90) days from the date which the Requisite Global Majority
shall direct the Indenture Trustee and the Transition Agent to locate a
successor Manager in accordance with the terms of the Indenture and other
Related Documents;


 


(xii) Either of the
following shall exist: (A) the occurrence of a reportable event (within
the meaning of Section 4043 of ERISA) with respect to any Plan, sponsored
or maintained by the Issuer or (B) the occurrence of any event or
condition with respect to a Plan sponsored or maintained by the Issuer, either
of which would result in a Material Adverse Change or which actually results in
the imposition of a Lien;


 


(xiii) There shall remain
in force, undischarged, unsatisfied and unstayed for more than sixty (60)
consecutive days, any final non-appealable judgment against the Issuer not
covered by insurance that, with other outstanding final non-appealable
judgments undischarged against the Issuer not covered by insurance exceeds in
the aggregate $250,000;


 


(xiv) On any
Determination Date, an Asset Base Deficiency exists and such condition remains
unremedied for a period of ninety (90) days;


 


(xv) An event of default
under any Related Document shall have occurred and then be continuing for sixty
(60) days (other than as otherwise set forth in this Section 801);


 


(xvi) Any payment shall
have been made by a Series Enhancer under any Enhancement Agreement;


 


(xvii) The Issuer shall
be required to register as an investment company under the Investment Company
Act of 1940;


 


(xviii) The occurrence of
an Event of Default with respect to any other Series of Notes then
Outstanding; and


 


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(xix) CLI shall at any
time (i) own less than all of the equity interests in the Issuer unless
waived by the Requisite Global Majority or (ii) fail to have sole control
of the Issuer and, legally and beneficially, own less than a majority of all
equity and voting interests in the Issuer unless waived by the Requisite Global
Majority and each Series Enhancer.


 


The occurrence of an Event of Default with respect to
one Series of Notes, except to the extent waived in accordance with the
provisions of Section 812(a) hereof, shall constitute an Event of
Default with respect to all other Series of Notes then Outstanding.


 


Section 802. Acceleration of Stated Maturity;
Rescission and Annulment. (a) Upon the occurrence of an Event of
Default of type described in paragraphs (vii) or (viii) above, the
Unpaid Principal Balance of, and accrued interest on, all Series of Notes,
together with all other amounts then due and owing to any Noteholder, any Series Enhancer,
the Transition Agent, the Collateral Agent and any Interest Rate Hedge
Provider, shall become immediately due and payable without further action by
any Person. Except as set forth in the immediately preceding sentence, if any
other Events of Default occurs and is continuing, then and in every such case
the Indenture Trustee shall at the direction of the Requisite Global Majority
declare the principal of and the accrued interest on all Series of Notes
then Outstanding to be due and payable immediately, by a notice in writing to
the Issuer, and upon any such declaration such principal and accrued interest
shall become immediately due and payable.


 


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


 


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


 


(A) all of the
installments of (i) interest, VFN Fees, Premiums and all principal
payments which were overdue prior to the date of such acceleration, (ii) the
Unpaid Principal Balance of all Series of Notes for which the Final
Maturity Date had occurred and (iii) all other amounts due and owing to
any Noteholder or any member of such Noteholder’s Related Group;


 


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


 


(C) all unpaid
Indenture Trustee Fees and sums paid or advanced by the Indenture Trustee
hereunder or the Manager and the reasonable compensation, out-of-pocket
expenses, disbursements and advances of the Indenture Trustee, its agents and
counsel incurred in connection with the enforcement of this Indenture;


 


79

















 


(D) without
duplication of the foregoing, all amounts due to any Series Enhancer;


 


(E) all unpaid
Transition Agent Fees due and owing to the Transition Agent under the Manager
Transition Agreement;


 


(F) all scheduled
payments due under any Interest Rate Hedge Agreement, together with interest
thereon in accordance with the terms thereof; and


 


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


 


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


 


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


 


Section 804. Remedies. (a) If an
Event of Default shall occur and be continuing, the Indenture Trustee, by such
officer or agent as it may appoint, shall notify each Noteholder, the Manager,
each Deal Agent, each Interest Rate Hedge Provider, each Series Enhancer
and the applicable Rating Agencies, if any, of such Event of Default. So long
as an Event of Default is continuing, the Indenture Trustee shall, if
instructed by the Requisite Global Majority, do any of the following:


 


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


 


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(ii) subject to the
quiet enjoyment rights of any Lessee of a Container, sell (including any sale
made in accordance with Section 815 hereof), hold or lease the Collateral
or any portion thereof or rights or interest therein, at one or more public or
private transactions conducted in any manner permitted by law;


 


(iii) if a Manager
Default is then continuing, terminate the Management Agreement and appoint a
successor Manager;


 


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


 


(v) institute such
other appropriate Proceedings to protect and enforce any other rights, whether
for the specific enforcement of any covenant or agreement in this Indenture or
in aid of the exercise of any power granted herein, or to enforce any other
proper remedy;


 


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


 


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


 


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


 


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


 


Section 805. Allocation of Money Collected.
If the Notes of all Series then Outstanding have been declared due and
payable following an Event of Default and such declaration and its consequences
have not been rescinded or annulled by the Requisite Global Majority, any money
collected by the Indenture Trustee pursuant to this Article or otherwise
and any other monies that may be held or thereafter received by the Indenture
Trustee as security for such Notes shall be applied, to the extent permitted by
law, as set forth in Section 302(c)(III) hereof.


 


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Section 806. Limitation on Suits. Except
with respect to an Event of Default of the type described in Section 801(i) hereof
(provided such amounts shall not have been paid by the Series Enhancer),
no Noteholder shall have the right to institute any Proceeding, with respect to
this Indenture, or for the appointment of a receiver or trustee, or for any
other remedy hereunder, unless:


 


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


 


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


 


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


 


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


 


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


 


(vi) the Requisite
Global Majority shall have consented thereto;


 


it being understood and intended that no one or more
Noteholders shall have any right in any manner whatsoever by virtue of, or by
availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other Noteholder, or to obtain or to seek to obtain priority
or preference over any other Noteholder (except to the extent provided in the
related Supplement) or to enforce any right under this Indenture, except in the
manner herein provided and for the benefit of all Noteholders.


 


Section 807. Unconditional Right of Holders to
Receive Principal and Interest. Notwithstanding any other provision of this
Indenture, each Noteholder shall have the right, which is absolute and
unconditional, to receive payment of the principal of and interest on such Note
as such principal and interest become due and payable in accordance with the
provisions of this Indenture and the related Supplement and to institute any
Proceeding for the enforcement of such payment, and such rights shall not be impaired
without the consent of such Holder.


 


Section 808. Restoration of Rights and
Remedies. If the Indenture Trustee, any Series Enhancer, any Interest
Rate Hedge Provider or any Holder has instituted any Proceeding to enforce any
right or remedy under this Indenture or the related Supplement and such
Proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Indenture Trustee, any Series Enhancer, any
Interest Rate Hedge Provider or to such Holder, then and in every such case,
subject to any determination in such Proceeding, the Issuer, the Indenture
Trustee, such Series Enhancer and the Holders shall be restored severally


 


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and respectively to their former positions hereunder
and thereafter all rights and remedies of the Indenture Trustee, such Series Enhancer,
such Interest Rate Hedge Provider and the Holders shall continue as though no
such Proceeding had been instituted.


 


Section 809. Rights and Remedies Cumulative.
No right or remedy conferred upon or reserved to the Indenture Trustee, any Series Enhancer,
any Interest Rate Hedge Provider or to the Holders pursuant to this Indenture
or any Supplement is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and
in addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.


 


Section 810. Delay or Omission Not Waiver.
No delay or omission of the Indenture Trustee, of any Series Enhancer, any
Interest Rate Hedge Provider or of any Holder of any Note to exercise any right
or remedy accruing upon any Event of Default shall impair any such right or
remedy or constitute a waiver of any such Event of Default or an acquiescence
therein. Every right and remedy given by this Article or by law to the
Indenture Trustee, any Interest Rate Hedge Provider, any Series Enhancer
or to the Holders may be exercised from time to time, and as often as may be
deemed expedient, by the Indenture Trustee, by any Interest Rate Hedge Provider,
by any Series Enhancer or by the Holders, as the case may be.


 


Section 811. Control by Requisite Global
Majority. (a) Upon the occurrence of an Event of Default, the
Requisite Global Majority shall have the right to direct the time, method and
place of conducting any Proceeding for any remedy available to the Indenture
Trustee or exercising any trust or power conferred on the Indenture Trustee,
provided that (i) such direction shall not be in conflict with any rule of
law or with this Indenture, including, without limitation, Section 804
hereof, (ii) such Person(s) have offered to the Indenture Trustee
reasonable security or indemnity against costs, expenses and liabilities which
it might incur in connection therewith as provided in Section 902(iii) hereof,
(iii) the Indenture Trustee may take any other action deemed proper by the
Indenture Trustee which is not inconsistent with such direction.


 


(b) Notwithstanding the grant of a security
interest to secure the Outstanding Obligations owing to the Indenture Trustee,
for the benefit the Noteholders, each Series Enhancer and each Interest
Rate Hedge Provider, all rights to direct actions or to exercise rights or
remedies under this Indenture or the UCC (including these set forth in Section of
804 hereof) shall be vested solely in the Requisite Global Majority and, by
accepting the benefits of this Indenture, each Noteholder and each Interest
Rate Hedge Provider acknowledges such statement; provided, however,
that nothing contained herein shall constitute a modification of Section 808,
Section 812(b) or Section 815(d) hereof.


 


Section 812. Waiver of Past Defaults. (a) The
Requisite Global Majority may, on behalf of all Noteholders of all Series,
waive any past Event of Default and its consequences, except an Event of
Default


 


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(i) of the type
described in Section 801(i) (provided such amounts shall not have
been paid by the Series Enhancer) which can be waived solely by the
affected Noteholder; or


 


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


 


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


 


Section 813. Undertaking for Costs. All
parties to this Indenture agree, and each Holder of any Note by acceptance
thereof shall be deemed to have agreed, that any court may in its discretion
require, in any suit for the enforcement of any right or remedy under this
Indenture, or in any suit against the Indenture Trustee for any action taken,
suffered or omitted by it as the Indenture Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; provided, however, that the provisions of this Section shall
not apply to any suit instituted by the Indenture Trustee, to any suit
instituted by any Holder, or group of Holders, holding in the aggregate more
than ten percent (10%) of the aggregate principal balance of the Notes of all Series then
Outstanding, or to any suit instituted by any Holder for the enforcement of the
payment of the principal of or interest on any Note on or after the Legal Final
Maturity Date of such Note.


 


Section 814. Waiver of Stay or Extension Laws.
The Issuer covenants (to the extent that it may lawfully do so) that it will
not at any time insist upon, or plead, or in any manner whatsoever claim or
take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Issuer (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Indenture Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.


 


Section 815. Sale of Collateral. (a) The
power to effect any sale (a “Sale”) of any portion of the Collateral pursuant
to Section 804 hereof shall not be exhausted by any one or more Sales as
to any portion of the Collateral remaining unsold, but shall continue
unimpaired until the entire Collateral shall have been sold or all Outstanding
Obligations shall have been paid. The Indenture Trustee at the direction of the
Requisite Global Majority may from time to time postpone any Sale by public
announcement made at the time and place of such Sale.


 


(b) Upon any Sale, whether made under the power
of sale hereby given or under judgment, order or decree in any Proceeding for
the foreclosure or involving the enforcement of this Indenture: (i) the
Indenture Trustee, at the written direction of the Requisite


 


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Global Majority, may bid for and purchase the property
being sold, and upon compliance with the terms of such Sale may hold, retain
and possess and dispose of such property in accordance with the terms of this
Indenture; and (ii) the receipt of the Indenture Trustee or of any officer
thereof making such Sale shall be a sufficient discharge to the purchaser or
purchasers at such Sale for its or their purchase money, and such purchaser or
purchasers, and its or their assigns or personal representatives, shall not,
after paying such purchase money and receiving such receipt of the Indenture
Trustee or of such officer therefor, be obliged to see to the application of
such purchase money or be in any way answerable for any loss, misappropriation
or non-application thereof.


 


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


 


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


 


Section 816. Action on Notes. The
Indenture Trustee’s right to seek and recover judgment on the Notes or under
this Indenture or any Supplement shall not be affected by the seeking,
obtaining or application of any other relief under or with respect to this
Indenture or any Supplement. Neither the Lien of this Indenture nor any rights
or remedies of the Indenture Trustee, any Series Enhancer, any Interest
Rate Hedge Provider or the Noteholders shall be impaired by the recovery of any
judgment by the Indenture Trustee against the Issuer or by the levy of any
execution under such judgment upon any portion of the Collateral or upon any of
the assets of the Issuer.


 


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ARTICLE IX


 


CONCERNING THE INDENTURE
TRUSTEE


 


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


 


The Indenture Trustee, upon receipt of all
resolutions, certificates, statements, opinions, reports, documents, orders or
other instruments furnished to the Indenture Trustee which are specifically
required to be furnished pursuant to any provisions of this Indenture and any
applicable Supplement, shall determine whether they are substantially in the
form required by this Indenture and any applicable Supplement; provided, however,
that the Indenture Trustee shall not be responsible for the accuracy or content
(including mathematical calculations) of any such resolution, certificate,
statement, opinion, report, document, order or other instrument furnished
pursuant to this Indenture and any applicable Supplement.


 


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


 


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


 


(ii) The Indenture
Trustee shall not be liable for an error of judgment made in good faith by a
Corporate Trust Officer or Corporate Trust Officers of the


 


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Indenture Trustee, unless it shall be proved that the
Indenture Trustee was negligent in ascertaining the pertinent facts; and


 


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


 


No provisions of this Indenture shall require the
Indenture Trustee to expend or risk its own funds or otherwise incur any
financial liability in the performance of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable grounds
for believing that repayment of such funds or adequate security or indemnity
against such risk or liability is not reasonably assured to it (the unsecured
indemnity of any Series Enhancer (so long as it is rated “AAA” or “Aaa”,
as applicable) upon such terms as may be reasonably acceptable to the Indenture
Trustee being deemed satisfactory for such purpose).


 


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


 


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


 


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


 


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


 


(iii) The Indenture
Trustee shall be under no obligation to institute, conduct or defend any
litigation or proceeding hereunder or in relation hereto at the request, order
or direction of the Requisite Global Majority, pursuant to the provisions of
this Indenture, unless the Indenture Trustee shall have security or indemnity
reasonably satisfactory to it against the costs, expenses and liabilities which
may be incurred therein or thereby (the unsecured indemnity of (A) a Rated
Institutional Noteholder being deemed satisfactory for such purpose, unless the
Indenture Trustee provides prior written notice to the contrary or (B) each
Series


 


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Enhancer (so long as its claims paying ability is
rated “AAA” or “Aaa”, as applicable) being deemed satisfactory for such
purpose);


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 903. Indenture Trustee Not Liable.
(a) The recitals contained herein (other than the representations and
warranties contained in Section 911 hereof), in any


 


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Supplement and in the Notes (other than the
certificate of authentication on the Notes) shall be taken as the statements of
the Issuer, and the Indenture Trustee assumes no responsibility for their
correctness. The Indenture Trustee makes no representations as to the validity
or sufficiency of this Indenture, any Supplement, the Notes, the Collateral or
of any related document. The Indenture Trustee shall not be accountable for the
use or application by the Issuer of any of the Notes or of the proceeds
thereof, or for the use or application of any funds paid to the Issuer or the
Manager in respect of the Collateral.


 


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


 


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


 


Section 904. Indenture Trustee May Own
Notes. The Indenture Trustee in its individual or any other capacity may
become the owner or pledgee of Notes with the same rights it would have if it
were not the Indenture Trustee; provided that such transaction shall not result
in the disqualification of the Indenture Trustee for purposes of Rule 3a-7
under the Investment Company Act of 1940.


 


Section 905. Indenture Trustee’s Fees and
Expenses. The Indenture Trustee, if not paid by the Manager, will be
entitled to receive, pursuant to the priority of payments set forth in Section 302
hereof, (A) (i) reasonable compensation for its services as Indenture
Trustee and (ii) reimbursement for expenses, disbursements and advances in
its capacity as Indenture Trustee (the foregoing clauses (i) and (ii) collectively,
the “Indenture Trustee Fee”) and (B) indemnification for Indenture Trustee
Indemnified Amounts.


 


The obligations of the Issuer under this Section 905
to compensate the Indenture Trustee, to pay or reimburse the Indenture Trustee
for expenses, disbursements and advances and to indemnify and hold harmless,
the Indenture Trustee shall constitute Outstanding Obligations


 


89

















 


hereunder and shall survive the resignation or removal
of the Indenture Trustee and the satisfaction and discharge of this Indenture.


 


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


 


Section 906. Eligibility Requirements for the
Indenture Trustee. The Indenture Trustee hereunder shall at all times be a
national banking association or a corporation, organized and doing business
under the laws of the United States of America or any state, and authorized
under such laws to exercise corporate trust powers. In addition, the Indenture
Trustee or its parent corporation shall at all times (i) have a combined
capital and surplus of at least $250,000,000, (ii) be subject to
supervision or examination by a Federal or state authority, (iii) have (A) in
the case of U.S. Bank National Association, a long term unsecured debt rating
of “A” or better by Moody’s and Standard & Poor’s or (B) in all
other instances, a long-term unsecured senior debt rating of “A-2” or better by
Moody’s and a long-term unsecured senior debt rating of “A” by Standard &
Poor’s and short-term unsecured senior debt rating of “P-1” or better by Moody’s
and a short-term unsecured senior debt rating of “A-2” by Standard &
Poor’s and as of the date on which the Indenture Trustee is appointed, be
acceptable to the Requisite Global Majority and each Interest Rate Hedge
Provider. If such corporation publishes reports of condition at least annually,
pursuant to law or to the requirements of such supervising or examining
authority, then, for the purposes of this Section 906, the combined
capital and surplus of such corporation shall be deemed to be its combined
capital and surplus as set forth in its most recent report of condition so
published. In case at any time the Indenture Trustee shall cease to be eligible
in accordance with the provisions of this Section, the Indenture Trustee shall
resign promptly in the manner and with the effect specified in Section 907
hereof.


 


Section 907. Resignation and Removal of the
Indenture Trustee. The Indenture Trustee may at any time resign and be
discharged from the trusts hereby created by giving prior written notice
thereof to the Issuer, the Manager, the Lead Deal Agent, each Series Enhancer
and the Noteholders; provided, however,
that no such resignation shall be effective until a successor has been
qualified and assumed the duties of the Indenture Trustee in accordance with
the terms of this Indenture. Upon receiving such notice of resignation, the
Issuer, at the direction of the Requisite Global Majority, shall promptly
appoint a successor trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the resigning Indenture Trustee, each Interest
Rate Hedge Provider, the Lead Deal Agent, each Series Enhancer, and one
copy to the successor Indenture Trustee. If no successor Indenture Trustee
shall have been so appointed and have accepted appointment within 30 days after
the giving of such notice of resignation, the Requisite Global Majority may
appoint a successor trustee or, if it does not do so within sixty (60) days
after the effective resignation, the resigning Indenture Trustee may petition
at the expense of the Issuer any court of competent jurisdiction for the
appointment of a successor trustee, which successor trustee shall meet the
eligibility standards set forth in Section 906.


 


If at any time the Indenture Trustee shall cease to be
eligible in accordance with the provisions of Section 906 hereof and shall
fail to resign after written request therefor by the Issuer, at the direction
of the Requisite Global Majority, or if at any time the Indenture Trustee


 


90

















 


shall become incapable of acting, or shall be adjudged
a bankrupt or insolvent, or a receiver of the Indenture Trustee or of its
property shall be appointed, or any public officer shall take charge or control
of the Indenture Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation, then the Issuer, at the direction of the Requisite
Global Majority, shall remove the Indenture Trustee and appoint a successor
Indenture Trustee by written instrument, in duplicate, one copy of which
instrument shall be delivered to the Indenture Trustee so removed and one copy
to the successor Indenture Trustee.


 


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


 


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


 


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


 


Upon receipt of any acknowledgment of an acceptance of
appointment by a successor Indenture Trustee as provided in this Section, the
Issuer shall mail notice of the succession of such Indenture Trustee hereunder
to all Noteholders at their addresses as shown in the registration books
maintained by the Indenture Trustee. If the Issuer fails to mail such notice
within ten (10) days after acceptance of appointment by the successor
Indenture Trustee, the successor Indenture Trustee shall cause such notice to
be mailed at the expense of the Issuer.


 


Section 909. Merger or Consolidation of the Indenture
Trustee. Any corporation into which the Indenture Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Indenture Trustee
shall be a party, or any corporation succeeding to the business of the
Indenture Trustee, shall be the successor of the Indenture Trustee hereunder,
provided such corporation shall be eligible under the provisions of Section 906
hereof, without the execution or


 


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filing of any paper or any further act on the part of
any of the parties hereto, anything herein to the contrary notwithstanding.


 


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


 


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


 


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


 


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


 


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


 


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


 


Any notice, request or other writing given to the
Indenture Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each of them.
Every instrument appointing any separate trustee, co-trustee, or custodian
shall refer to this Indenture and the conditions of this Article. Each separate
trustee


 


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and co-trustee, upon its acceptance of the trusts
conferred, shall be vested with the estates or property specified in its
instrument of appointment, either jointly with the Indenture Trustee or
separately, as may be provided therein, subject to all the provisions of this
Indenture, specifically including every provision of this Indenture relating to
the conduct of, affecting the liability of, or affording protection to, the
Indenture Trustee. Every such instrument shall be furnished to the Indenture
Trustee, the Lead Deal Agent, each Interest Rate Hedge Provider and each Series Enhancer.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 912. Indenture Trustee Offices.
The Indenture Trustee shall maintain in the state of Minnesota an office or
offices or agency or agencies where Notes may be surrendered for registration
of transfer or exchange, which office shall initially be located at 60
Livingston Avenue, EP-MN-WS3D, St. Paul, MN 55107-2292, Attn: Structured
Finance/CLI Funding LLC, and shall promptly notify the Issuer, the Manager and
the Noteholders of any change of such location.


 


Section 913. Notice of Event of Default.
If a Responsible Officer of the Indenture Trustee shall have actual knowledge
that an Event of Default with respect to any Series shall have occurred
and be continuing, the Indenture Trustee shall promptly (but in any event
within five (5) Business Days) give written notice thereof to each
Noteholder, each Deal Agent, each Interest Rate Hedge Provider and any Rating
Agency and Series Enhancer. For all purposes of this Indenture, in the
absence of actual knowledge by a Responsible Officer of the Indenture Trustee,
the Indenture Trustee shall not be deemed to have actual knowledge of any Event
of Default unless notified in writing thereof by the Issuer, the Seller, the
Manager, any Series Enhancer, each Deal Agent, each Interest Rate Hedge
Provider or any Noteholder, and such notice references the applicable Series of
Notes generally, the Issuer, this Indenture or the applicable Supplement.


 


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ARTICLE X


 


SUPPLEMENTAL INDENTURES


 


Section 1001. Supplemental Indentures Not
Creating a New Series Without Consent of Holders. (a) Without the
consent of any Holder or any Series Enhancer and based on an Opinion of
Counsel in form and substance reasonably acceptable to the Requisite Global
Majority to the effect that such Supplement is for one of the purposes set
forth in clauses (i) through (vi) below, the Issuer and the Indenture
Trustee, at any time and from time to time, may, with the consent of the
Requisite Global Majority and each affected Interest Rate Hedge Provider (if
such proposed amendment would materially and adversely affect the rights,
duties or immunities of such Interest Rate Hedge Provider under this
Indenture), enter into one or more Supplements for any of the following
purposes:


 


(i) to surrender any
right or power conferred upon the Issuer in this Indenture;


 


(ii) to cure any
ambiguity, to correct or supplement any provision in this Indenture which may
be inconsistent with any other provision in this Indenture;


 


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


 


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


 


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


 


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


 


Prior to the execution of any Supplement issued
pursuant to this Section 1001, the Issuer shall provide written notice to
each Rating Agency setting forth in general terms the substance of any such
Supplement.


 


(b) Promptly after the execution by the Issuer
and the Indenture Trustee of any Supplement pursuant to this Section, the
Issuer shall mail to the Holders of all Notes then Outstanding, each Rating
Agency, each Interest Rate Hedge Provider and each Series Enhancer related
to such Series, a notice setting forth in general terms the substance of such
Supplement, together with a copy of the text of such Supplement. Any failure of
the Issuer to mail such


 


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notice, or any defect therein, shall not, however, in
any way impair or affect the validity of any such Supplement.


 


Section 1002. Supplemental Indentures Not
Creating a New Series with Consent of Holders. (a) With the
consent of the Requisite Global Majority and each affected Interest Rate Hedge
Provider (if such proposed amendment would materially and adversely affect such
Interest Rate Hedge Provider’s rights, duties or immunities under this
Indenture or otherwise), the Issuer and the Indenture Trustee may, subject to
the provisions of Section 1002(b), enter into a Supplement hereto for the
purpose of (i) adding any provisions to or changing in any manner or
eliminating any of the provisions of this Indenture or of modifying in any
manner the rights of the Holders under this Indenture; (ii) adding
covenants of the Issuer for the benefit of the Holders of all Series of
Notes then Outstanding or of any Series Enhancer; and/or (iii) adding
any additional Events of Default or Early Amortization Events; provided, however,
that no such Supplement shall amend or modify the terms of any Supplement
related to a particular Series (i.e.,
the Supplement establishing the Principal Terms of such Series) without the
consent of the Control Party for such Series.


 


(b) Notwithstanding the provision of Section 1001
or 1002(a), no Supplement executed pursuant to Section 1002(a) shall,
without the consent of the Holder of each Outstanding Note and each Series Enhancer
affected thereby:


 


(i) modify (A) any
of the provisions of this Indenture or any Supplement to change the method of
computing the amount of principal of, or interest on, any Notes in such a
manner as to reduce the principal amount of any Note or the rate of interest
thereon, change the priority of any payments required pursuant to this
Indenture or any Supplement, in a manner adverse to Noteholders, provided that
such determination shall be accompanied by an Opinion of Counsel stating that
such proposed Supplement shall not so adversely affect such parties, or (B) the
date on or the timing of which, or the place of payment where, or the coin or
currency in which, any Note or the interest thereon is payable, or impair the
right to institute suit for the enforcement of any such payment on or after the
Legal Final Maturity Date thereof;


 


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


 


(iii) modify any of
the provisions of this section except to increase any percentage provided
herein, or to provide that certain other provisions of this Indenture cannot be
modified or waived without the consent of the Holder of each Outstanding Note
affected thereby;


 


(iv) modify or
alter, in a manner adverse to the Noteholders, provided that such determination
shall be accompanied by an Opinion of Counsel, stating that such proposed
Supplement shall not so adversely affect such parties, the


 


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definition of the terms “Outstanding,” “Requisite
Global Majority”, “Asset Base”, “Early Amortization Event”, “Event of Default”,
“Legal Final Maturity Date”, “Existing Commitment” or “Initial Commitment”;


 


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


 


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


 


(vii) permit the
creation of any Lien ranking prior to or on a parity with the Lien of this
Indenture with respect to any part of the Collateral or terminate the Lien of
this Indenture on any material property at any time subject hereto or deprive
in any material respect the Holder of any Note of the security afforded by the
Lien of this Indenture.


 


Prior to the execution of any Supplement issued
pursuant to this Section 1002, the Issuer shall provide a written notice
to each Rating Agency and any Interest Rate Hedge Provider setting forth in
general terms the substance of any such Supplement.


 


(c) Promptly after the execution by the Issuer
and the Indenture Trustee of any Supplement pursuant to this Section, the
Issuer shall mail to the Holders of the Notes, each Rating Agency, Interest
Rate Hedge Provider and Series Enhancer related to such Series, a notice
setting forth in general terms the substance of such Supplement, together with
a copy of the text of such Supplement. Any failure of the Issuer to mail such
notice, or any defect therein, shall not, however, in any way impair or affect
the validity of any such Supplement.


 


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


 


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


 


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


 


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


 


(b) On or before the Series Issuance Date
relating to any Series, the parties hereto will execute and deliver a
Supplement which will specify the Principal Terms of such Series. The terms of
such Supplement may modify or amend the terms of this Indenture solely as
applied to such Series, and, with the consent of each affected Control Party
for any other Series and each affected Interest Rate Hedge Provider (if
such proposed amendment would materially and adversely affect such Interest
Rate Hedge Provider’s rights, duties or immunities under this Indenture or
otherwise), may amend this Indenture as applicable to such other Series, in
accordance with Section 1002 hereof. The obligation of the Indenture
Trustee to authenticate and deliver the Notes of such Series and to
execute and deliver the related Supplement is subject to the satisfaction of
the following conditions and such additional conditions as shall have been
stated in the Supplement for any Series then Outstanding:


 


(i) on or before the
tenth (10th) Business Day immediately preceding the Series Issuance
Date (unless the parties to be notified agree to a shorter notice period), the
Issuer shall have given the Indenture Trustee, the Manager, each Interest Rate
Hedge Provider, each Deal Agent, each Rating Agency (and, if such Additional Series is
to be registered pursuant to the Securities Act, all Rating Agencies that have
rated any prior Series) and any Series Enhancer entitled thereto pursuant
to the relevant Supplement notice of the Series and the Series Issuance
Date;


 


(ii) the Issuer
shall have delivered to the Indenture Trustee the related Supplement and the
Notes executed by each party hereto other than the Indenture Trustee;


 


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


 


(iv) the Rating
Agency Condition shall have been satisfied with respect to all Series then
Outstanding;


 


(v) the Issuer shall
have delivered to the Indenture Trustee, each Rating Agency, each Series Enhancer
and, if required, each Interest Rate Hedge Provider, any Noteholder, any
Opinions of Counsel required by the related Supplement, including, without
limitation, Opinions of Counsel (rendered by independent counsel acceptable to
the Indenture Trustee) with respect to (A) true sale, enforceability,
non-consolidation, and security interest perfection issues and (B) for
federal income tax purposes (1) after the issuance of such Additional
Series, the Issuer will not be deemed taxable as a corporation or an
association taxable as a corporation, (2) the issuance of such Additional Series will
not adversely affect the characterization of the Notes then outstanding as
indebtedness


 


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for
federal income tax purposes and (3) the Notes of such Additional Series constitute
indebtedness for federal income tax purposes;


 


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


 


(vii) no Additional Series may
have (i) a legal final maturity date that is earlier than the Series 2006-1
Legal Final Maturity Date, (ii) more restrictive provisions regarding
early amortization events, manager defaults or events of default than the Series 2006-1
Supplement, (iii) a Weighted Average Life less than the remaining term of
the Series 2006-1 Notes or (iv) an Advance Rate higher than that of
the Series 2006-1 Notes or Series 2006-2 VFNs;


 


(viii) such other
conditions as shall be specified in (A) the Supplement pursuant to which
such Additional Series is to be issued and (B) any Supplement for any
Series of Notes then Outstanding; and


 


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


 


Upon satisfaction of the above conditions, the
Indenture Trustee shall execute the Supplement and authenticate and deliver the
Notes of such Series.


 


Section 1007. Intercreditor Agreement. For
the avoidance of doubt, an amendment to the Intercreditor Agreement shall not
constitute a supplemental indenture requiring the consent of any Noteholder.


 


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ARTICLE XI


 


HOLDERS LISTS


 


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


 


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


 


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ARTICLE XII


 


EARLY AMORTIZATION EVENTS


 


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


 


(1)                    An Event of Default or event of default
under any Related Document shall have occurred and then be continuing;


 


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


 


(3)                    If on any Determination Date, an Asset
Base Deficiency exists and such condition remains unremedied for a period of
ten (10) Business Days;


 


(4)                    The Long-Term Interest Coverage Ratio of
the Issuer is less than two hundred twenty-five percent (225%);


 


(5)                   The Short-Term Interest Coverage Ratio of
the Issuer is less than one hundred ten percent (110%) for four
(4) consecutive Record Dates;


 


(6)                    As of any Record Date, the Average Age of
all of the Containers shall exceed eight and one-half (8.5) years;


 


(7)                   Any environmental law, convention or
regulation is adopted which prohibits or limits in any material respect the
usage of the Containers and is reasonably likely to materially and adversely
affect the revenue-generating activities or operations of the Issuer; or


 


(8)                    The occurrence of any other Early
Amortization Event with respect to any other Series of Notes then
Outstanding.


 


If an Early Amortization Event exists on any Payment
Date, then such Early Amortization Event shall be deemed to continue until the
Business Day on which the Requisite Global Majority waives, in writing, such
Early Amortization Event.


 


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ARTICLE XIII


 


MISCELLANEOUS PROVISIONS


 


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


 


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


 


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


 


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


 


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


 


(iv) a statement as
to whether, in the opinion of each such individual, such condition or covenant has
been complied with.


 


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


 


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


 


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


 


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


 


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


 


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


 


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


 


Section 1304. Inspection. (a) Upon
reasonable request, the Issuer agrees that it shall make available to any
representative of the Indenture Trustee, any Deal Agent, any Interest Rate
Hedge Provider or any Series Enhancer and their duly authorized
representatives, attorneys or accountants, for inspection and copying its books
of account, records and reports relating to the Containers and copies of all
Leases or other documents relating thereto (other than any consolidated tax
return of the Seller), all in the format which the Manager uses for its own
operations. Such inspections shall be conducted during normal business hours
and shall not unreasonably disrupt the Manager’s business. The Indenture
Trustee, each Interest Rate Hedge Provider, each Deal Agent, each Series Enhancer
and Noteholders shall, and shall cause their respective representatives to,
hold in confidence all such information except to the extent disclosure may be
required by law (and all reasonable applications for confidential treatment are
unavailing). Each such Person agrees that it and its shareholders, directors,
agents, accountants


 


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and attorneys shall keep confidential any matter of
which it becomes aware through such inspections or discussions (unless readily
available from public sources), except as may be otherwise required by
regulation, law or court order or required by appropriate governmental
authorities or as necessary to preserve its rights or security under or to
enforce the Related Documents, provided that the foregoing shall not limit the
right of such Person to make such information available to its regulators,
securities rating agencies, reinsurers and credit and liquidity providers whom
such party reasonably believes will respect the confidential nature of such
information. Any expense incident to the reasonable exercise by the Indenture
Trustee, any Series Enhancer, any Interest Rate Hedge Provider, any Deal
Agent or any Noteholder of any right under this Section shall be borne by
the Person exercising such right unless an Event of Default shall have occurred
and then be continuing in which case such expenses shall be borne by the
Issuer.


 


(b) The Issuer also agrees (i) to make
available on a reasonable basis to the Indenture Trustee, any Deal Agent, any Series Enhancer,
any Interest Rate Hedge Provider or any prospective owner, a Managing Officer
for the purpose of answering reasonable questions respecting recent
developments affecting the Issuer and (ii) to allow the Indenture Trustee,
any Series Enhancer or any prospective owner to inspect the Manager’s
facilities during normal business hours.


 


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


 


Section 1306. Severability. If any
provision of this Indenture is held to be in conflict with any applicable
statute or rule of law or is otherwise held to be unenforceable for any
reason whatsoever, such circumstances shall not have the effect of rendering
the provision in question inoperative or unenforceable in any other case or
circumstance, or of rendering any other provision or provisions herein
contained invalid, inoperative, or unenforceable to any extent whatsoever. The
invalidity of any one or more phrases, sentences, clauses or Sections of this
Indenture shall not affect the remaining portions of this Indenture, or any
part thereof.


 


Section 1307. Notices. All demands,
notices and communications hereunder shall be in writing, personally delivered,
or by facsimile (with subsequent telephone confirmation of receipt thereof), or
sent by internationally recognized overnight courier service, (a) in the
case of the Indenture Trustee, at the following address: EP-MN-WS3D, 60
Livingston Avenue, St. Paul, MN 55107-2292, Attn: Structured Finance/CLI
Funding LLC, (b) in the case of the Issuer, the Seller or the Manager, at
the following address: One Maynard Drive, Park Ridge, New Jersey 07656, and (c) in
the case of each Rating Agency, its address set forth in the related
Supplement, in the case of any Series Enhancer, at its address set forth
in the related Supplement, or at other such address as shall be designated by
such party in a written notice to the other parties. Any notice required or
permitted to be given to a Noteholder shall be given by


 


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


 


Section 1308. Consent to Jurisdiction. ANY
LEGAL SUIT, ACTION OR PROCEEDING AGAINST THE ISSUER ARISING OUT OF OR RELATING
TO THIS INDENTURE, OR ANY TRANSACTION CONTEMPLATED HEREBY, MAY BE
INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE CITY OF NEW YORK, STATE OF NEW
YORK AND THE ISSUER 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 INDENTURE, THE ISSUER HEREBY
IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT,
ACTION OR PROCEEDING. THE ISSUER HEREBY IRREVOCABLY APPOINTS AND DESIGNATES
CORPORATION SERVICE COMPANY, HAVING AN ADDRESS AT 1133 AVENUE OF THE AMERICAS,
SUITE 3100, NEW YORK, NY 10036-6710, ITS TRUE AND LAWFUL ATTORNEY-IN-FACT AND
DULY AUTHORIZED AGENT FOR THE LIMITED PURPOSE OF ACCEPTING SERVICING OF LEGAL
PROCESS AND THE ISSUER AGREES THAT SERVICE OF PROCESS UPON SUCH PARTY SHALL
CONSTITUTE PERSONAL SERVICE OF SUCH PROCESS ON SUCH PERSON. THE ISSUER SHALL
MAINTAIN THE DESIGNATION AND APPOINTMENT OF SUCH AUTHORIZED AGENT UNTIL ALL
AMOUNTS PAYABLE UNDER THIS INDENTURE SHALL HAVE BEEN PAID IN FULL. IF SUCH
AGENT SHALL CEASE TO SO ACT, THE ISSUER SHALL IMMEDIATELY DESIGNATE AND APPOINT
ANOTHER SUCH AGENT SATISFACTORY TO THE INDENTURE TRUSTEE AND SHALL PROMPTLY
DELIVER TO THE INDENTURE TRUSTEE EVIDENCE IN WRITING OF SUCH OTHER AGENT’S
ACCEPTANCE OF SUCH APPOINTMENT.


 


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


 


Section 1310. Governing Law. THIS
INDENTURE SHALL BE CONSTRUED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, INCLUDING SECTION 5-1401 AND 5-1402 OF THE GENERAL
OBLIGATIONS LAWS 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.


 


105

















 


Section 1311. No Petition. The Indenture
Trustee, on its own behalf, hereby covenants and agrees, and each Noteholder by
its acquisition of a Note shall be deemed to covenant and agree, that it will
not institute against the Issuer any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings, or other proceedings under any federal
or state bankruptcy or similar law, at any time other than on a date which is
at least one year and one day after the last date on which any Note of any Series was
Outstanding.


 


Section 1312. General Interpretive Principles.
For purposes of this Indenture except as otherwise expressly provided or unless
the context otherwise requires:


 


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


 


(b) accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally accepted
accounting principles as in effect on the date hereof;


 


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


 


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


 


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


 


(f) the term “include” or “including” shall mean
without limitation by reason of enumeration.


 


Section 1313. 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 AGREEMENT OR ANY
OTHER OPERATIVE DOCUMENT, INCLUDING IN RESPECT OF THE NEGOTIATION,
ADMINISTRATION OR ENFORCEMENT HEREOF OR THEREOF.


 


Section 1314. Waiver of Immunity. To the
extent that any party hereto or any of its property is or becomes entitled at
any time to any immunity on the grounds of sovereignty or otherwise from any
legal actions, suits or proceedings, from set-off or counterclaim, from the
jurisdiction or judgment of any competent court, from service of process, from
execution of a judgment, from attachment prior to judgment, from attachment in
aid of execution, or from execution prior to judgment, or other legal process
in any jurisdiction, such party, for itself and its successors and assigns and
its property, does hereby irrevocably and unconditionally waive, and agrees not
to plead or claim, any such immunity with respect to its obligations,
liabilities or


 


106

















 


any other matter under or arising out of or in
connection with this Indenture, the other Related Documents or the subject
matter hereof or thereof, subject, in each case, to the provisions of the
Related Documents and mandatory requirements of Applicable Law.


 


Section 1315. Judgment Currency. The
parties hereto (A) acknowledge that the matters contemplated by this
Indenture are part of an international financing transaction and (B) hereby
agree that (i) specification and payment of Dollars is of the essence, (ii) Dollars
shall be the currency of account in the case of all obligations under the
Related Documents unless otherwise expressly provided herein or therein, (iii) the
payment obligations of the parties under the Related Documents shall not be
discharged by an amount paid in a currency or in a place other than that
specified with respect to such obligations, whether pursuant to a judgment or
otherwise, except to the extent actually received by the Person entitled
thereto and converted into Dollars by such Person (it being understood and
agreed that, if any transaction party shall so receive an amount in a currency
other than Dollars, it shall (A) if it is not the Person entitled to
receive payment, promptly return the same (in the currency in which received)
to the Person from whom it was received or (B) if it is the Person
entitled to receive payment, either, in its sole discretion, (x) promptly
return the same (in the currency in which received) to the Person from whom it
was received or (y) subject to reasonable commercial practices, promptly
cause the conversion of the same into Dollars), (iv) to the extent that
the amount so paid on prompt conversion to Dollars under normal commercial
practices does not yield the requisite amount of Dollars, the obligee of such
payment shall have a separate cause of action against the party obligated to make
the relevant payment for the additional amount necessary to yield the amount
due and owing under the Related Documents, (v) if, for the purpose of
obtaining a judgment in any court with respect to any obligation under any of
the Related Documents, it shall be necessary to convert to any other currency
any amount in Dollars due thereunder and a change shall occur between the rate
of exchange applied in making such conversion and the rate of exchange
prevailing on the date of payment of such judgment, the obligor in respect of
such obligation will pay such additional amounts (if any) as may be necessary
to insure that the amount paid on the date of payment is the amount in such
other currency which, when converted into Dollars and transferred to New York City,
New York, in accordance with normal banking procedures, will result in
realization of the amount then due in Dollars and (vi) any amount due
under this paragraph shall be due as a separate debt and shall not be affected
by or merged into any judgment being obtained for any other sum due under or in
respect of the Related Documents.


 


Section 1316. Statutory References.
References in this Indenture and each other Related Documents for any Series to
any section of the Uniform Commercial Code or the UCC shall mean, on or after
the effective date of adoption of any revision to the Uniform Commercial Code
or the UCC in the applicable jurisdiction, such revised or successor section
thereto.


 


Section 1317. Transactions Under Original
Agreement. On the Closing Date, the Original Agreement shall be amended and
restated as provided in this Indenture and shall be superseded by this
Indenture. The terms and conditions of this Indenture shall apply to all of the
rights, obligations and remedies incurred by the Issuer under the Original
Agreement, and the Issuer agrees that this Indenture is not intended to
constitute a discharge of the rights, obligations and remedies existing under
the Original Agreement.


 


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


 


	
   

  	
  CLI FUNDING LLC

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Daniel P. DeBlasio

  
	
   

  	
  Name:

  	
  Daniel P. DeBlasio

  
	
   

  	
  Title:

  	
  VP & Chief Financial Officer

  



 

















 


	
   

  	
  U.S. BANK NATIONAL ASSOCIATION,

  
	
   

  	
  not individually but solely as Indenture Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Diane L. Reynolds

  
	
   

  	
  Name:

  	
  Diane L. Reynolds

  
	
   

  	
  Title:

  	
  Vice President