EXHIBIT 4.40


 


AMENDMENT 3 TO SERIES 2009-1 NOTE PURCHASE AGREEMENT


 


THIS AMENDMENT 3, dated as of April 9, 2010 (the “Amendment”),  is to the Series 2009-1 Note Purchase
Agreement, dated as of October 23, 2009 (as amended, supplemented and
otherwise modified from time to time in accordance with its terms, the “Agreement”),
among TAL ADVANTAGE III LLC, a limited liability company organized under the
laws of the State of Delaware (the “Issuer”), WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Purchaser (“WFBNA”), and WELLS FARGO SECURITIES, LLC, as
Wells Fargo Deal Agent (“WFS”).


 


W
I T N E S S E T H:


 


WHEREAS, the parties have previously entered into the Agreement;


 


WHEREAS, the parties hereto desire to amend the Agreement in order to
provide for an increase in the Series 2009-1 Note Existing Commitment and
Purchase Limit of WFBNA in an amount equal to Ninety-Five Million Dollars
($95,000,000) (subject to certain reductions from time to time in the event
that certain Additional Series 2009-1 Noteholders shall become parties to
the Agreement);


 


WHEREAS, the parties hereto desire to amend the Agreement to amend and
restate Section 2.3(c) and Section 8.11 of the Agreement and
Schedule 2 to the Agreement accordingly; and


 


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


 


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


 


2.             Amendment to
the Agreement.  On the
Effective Date (as defined in Section 4(a) of this Amendment),


 


(a)           Section 2.3(c) of
the Agreement is hereby amended and restated as follows:


 


“(c)         The Issuer may, by means of a letter delivered to
Administrative Agent and the Indenture Trustee (with a copy to each Interest
Rate Hedge Counterparty) on not more than five (5) occasions prior to April 9,
2011, request that the aggregate Series 2009-1 Note Existing Commitments
be increased by an aggregate amount not to exceed One Hundred Forty-Five
Million Dollars ($145,000,000), by issuing additional Series 2009-1 Notes
to one or more commercial banks, finance companies or other Persons (each an “Additional
Series 2009-1 Noteholder”) having an aggregate Series 2009-1 Note
Existing Commitment in an amount agreed to by any such Additional Series 2009-1
Noteholder.  Notwithstanding the
foregoing, however, in the event that one or more Additional Series 2009-1
Noteholders shall become a party to this Agreement (other than the initial
Additional Series 2009-1 Noteholder having a Series 2009-1 Note
Existing Commitment of not more than $50,000,000 that becomes a party to the
Note Purchase 


 

















 


Agreement on or prior to May 9,
2010, the “Excluded Incremental Series 2009-1 Noteholder”), then,
until a Successful Syndication is completed, Wells Fargo Bank, National
Association, as Series 2009-1 Noteholder (“WFBNA”), shall assign to
each such Additional Series 2009-1 Noteholder (i) a portion of the
then Series 2009-1 Note Existing Commitment of WFBNA in an amount equal to
the Series 2009-1 Note Existing Commitment of each such Additional Series 2009-1
Noteholder (and WFBNA’s Series 2009-1 Note Existing Commitment shall
concurrently be reduced by an equal amount), and (ii) a proportionate
amount of the aggregate Series 2009-1 Principal Balance of the Series 2009-1
Notes then owned by WFBNA (and WFBNA’s Series 2009-1 Principal Balance
shall concurrently be reduced by a payment in such amount from such Additional Series 2009-1
Noteholder to WFBNA (which payment shall include any accrued interest
thereon)).  In this regard, a “Successful
Syndication” means the Series 2009-1 Note Existing Commitment of Wells
Fargo Bank, National Association shall be reduced to One Hundred Fifty Million
Dollars ($150,000,000) or less.”


 


(b)           Section 8.11
of the Agreement is hereby amended and restated as follows:


 


“Section 8.11         Ratable
Payments.  If any
Purchaser, whether by setoff or otherwise, has payment made to it with respect
to any portion of any amount of the principal amount of any Note or other
amount owing to such Purchaser (other than payments received pursuant to Article VI
and principal repayments received by any Series 2009-1 Noteholders
pursuant to the last sentence of Section 2.3(c) hereof) in a greater
proportion than that received by any other Purchaser, such Purchaser agrees,
promptly upon demand, to pay to the Deal Agent, for distribution ratably to all
other Purchasers, the amount of such excess such that all Purchasers shall
receive their ratable portion of such payment.


 


(c)           The Agreement
is hereby amended by amending and restating Schedule 2 to the Agreement
in the form attached as Schedule 2 hereto.


 


3.             Representations,
Warranties and Covenants of the Issuer.  The Issuer hereby represents, warrants and
covenants for itself (unless otherwise provided):


 


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


 


(ii)           It has power,
and is duly authorized, to execute and deliver this Amendment, and it is
authorized to perform its obligations under this Amendment;


 


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


 


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


 


2

















 


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


 


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


 


4.             Scope and
Effectiveness of Amendment.


 


(a)           This Amendment
and the agreements set forth herein shall be effective upon execution and
delivery hereof (the “Effective Date”) and shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns.


 


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


 


(c)           Except as
expressly amended or modified hereby, the Agreement shall remain in full force
and effect and is hereby ratified and confirmed by the parties hereto.


 


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


 


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


 


6.             Execution in
Counterparts.  This
Amendment may be executed in two or more counterparts, and by different parties
on separate counterparts (including by PDF file), each of which shall be an
original, but all of which shall constitute one and the same instrument.


 


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


 


[Signature Pages Follow]


 


3

















 


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


 




	
  THE ISSUER:

  	
   

  	
  TAL ADVANTAGE III LLC

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By: TAL International Container Corporation, its manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
					






 


Amendment 3 to Series 2009-1 Note Purchase
Agreement


 

















 




	
  THE PURCHASER: 

  	
   

  	
  WELLS FARGO BANK, NATIONAL ASSOCIATION, as 

  
	
   

  	
   

  	
  Purchaser

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  






 


 




	
  THE DEAL AGENT:

  	
   

  	
  WELLS FARGO SECURITIES, LLC, as Wells Fargo Deal 

  
	
   

  	
   

  	
  Agent

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  






 


Amendment 3 to Series 2009-1 Note Purchase
Agreement


 

















 


SCHEDULE 2


 


PURCHASE LIMITS


 


	
  Purchaser

  	
   

  	
  Purchase Limit

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  Wells Fargo Bank, National
  Association

  	
   

  	
  $

  	
  245,000,000