EXHIBIT 10.24
TAL ADVANTAGE I LLC
Issuer
and
U.S. BANK NATIONAL ASSOCIATION,
Indenture Trustee
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INDENTURE
Dated as of August 1, 2005
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ARTICLE I
DEFINITIONS
Section 101. Defined Terms..................................................3
Section 102. Other Definitional Provisions..................................3
Section 103. Computation of Time Periods....................................3
Section 104. Duties of Administrative Agent.................................3
Section 105. General Interpretive Principles................................4
Section 106. Statutory References...........................................4
ARTICLE II
THE NOTES
Section 201. Authorization of Notes.........................................5
Section 202. Form of Notes; Global Notes....................................5
Section 203. Execution; Recourse Obligation.................................7
Section 204. Certificate of Authentication..................................7
Section 205. Registration; Registration of Transfer and Exchange
of Notes.......................................................8
Section 206. Mutilated Destroyed, Lost and Stolen Notes....................11
Section 207. Delivery, Retention and Cancellation of Notes.................11
Section 208. ERISA Deemed Representations..................................12
ARTICLE III
PAYMENT OF NOTES; STATEMENTS TO NOTEHOLDERS
Section 301. Principal and Interest........................................13
Section 302. Trust Account.................................................13
Section 303. Investment of Monies Held in the Trust Account, the
Restricted Cash Account and Series Accounts; Control over
Eligible Investments..........................................18
Section 304. Reports to Noteholders........................................20
Section 305. Records.......................................................20
Section 306. Restricted Cash Account.......................................20
Section 307. CUSIP Numbers.................................................21
Section 308. No Claim......................................................21
Section 309. Compliance with Withholding Requirements......................21
Section 310. Tax Treatment of Notes........................................21
ARTICLE IV
COLLATERAL
Section 401. Collateral....................................................22
Section 402. Pro Rata Interest.............................................22
Section 403. Indenture Trustee's Appointment as Attorney-in-Fact...........23
Section 404. Release of Security Interest..................................24
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Section 405. Administration of Collateral..................................24
Section 406. Quiet Enjoyment...............................................26
ARTICLE V
RIGHTS OF NOTEHOLDERS; ALLOCATION AND APPLICATION OF COLLECTIONS;
REQUISITE GLOBAL MAJORITY
Section 501. Rights of Noteholders.........................................27
Section 502. Collections and Allocations...................................27
Section 503. Determination of Requisite Global Majority....................27
ARTICLE VI
COVENANTS
Section 601. Payment of Principal and Interest; Payment of Taxes...........28
Section 602. Maintenance of Office.........................................28
Section 603. Corporate Existence...........................................28
Section 604. Protection of Collateral......................................29
Section 605. Performance of Obligations....................................29
Section 606. Negative Covenants............................................30
Section 607. Non-Consolidation of the Issuer...............................31
Section 608. No Bankruptcy Petition........................................31
Section 609. Liens.........................................................31
Section 610. Other Debt....................................................31
Section 611. Guarantees, Loans, Advances and Other Liabilities.............32
Section 612. Consolidation, Merger and Sale of Assets......................32
Section 613. Other Agreements; Amendment of Transaction Documents..........32
Section 614. Charter Documents.............................................32
Section 615. Capital Expenditures..........................................32
Section 616. Permitted Activities; Compliance with Organizational
Documents.....................................................32
Section 617. Investment Company Act........................................33
Section 618. Payments of Collateral........................................33
Section 619. Notices.......................................................33
Section 620. Books and Records.............................................33
Section 621. Subsidiaries..................................................33
Section 622. Investments...................................................33
Section 623. Use of Proceeds...............................................33
Section 624. Asset Base Certificate........................................34
Section 625. Financial Statements..........................................34
Section 626. UNIDROIT Convention...........................................34
Section 627. Other Information.............................................34
Section 628. Hedging Requirement...........................................34
Section 629. Ownership of Issuer...........................................35
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ARTICLE VII
DISCHARGE OF INDENTURE; PREPAYMENTS
Section 701. Full Discharge................................................36
Section 702. Prepayment of Notes...........................................36
Section 703. Unclaimed Funds...............................................37
ARTICLE VIII
DEFAULT PROVISIONS AND REMEDIES
Section 801. Event of Default..............................................38
Section 802. Acceleration of Stated Maturity; Rescission and Annulment.....40
Section 803. Collection of Indebtedness....................................41
Section 804. Remedies......................................................41
Section 805. Indenture Trustee May Enforce Claims Without Possession
of Notes......................................................42
Section 806. Allocation of Money Collected.................................42
Section 807. Limitation on Suits...........................................44
Section 808. Unconditional Right of Noteholders to Receive Principal,
Interest and Commitment Fees..................................45
Section 809. Restoration of Rights and Remedies............................45
Section 810. Rights and Remedies Cumulative................................45
Section 811. Delay or Omission Not Waiver..................................45
Section 812. Control by Requisite Global Majority..........................45
Section 813. Waiver of Past Defaults.......................................46
Section 814. Undertaking for Costs.........................................46
Section 815. Waiver of Stay or Extension Laws..............................46
Section 816. Sale of Collateral............................................46
Section 817. Action on Notes...............................................47
ARTICLE IX
CONCERNING THE INDENTURE TRUSTEE
Section 901. Duties of the Indenture Trustee...............................48
Section 902. Certain Matters Affecting the Indenture Trustee...............49
Section 903. Indenture Trustee Not Liable..................................50
Section 904. Indenture Trustee May Own Notes...............................50
Section 905. Indenture Trustee's Fees and Expenses.........................50
Section 906. Eligibility Requirements for the Indenture Trustee............51
Section 907. Resignation and Removal of the Indenture Trustee..............51
Section 908. Successor Indenture Trustee...................................52
Section 909. Merger or Consolidation of the Indenture Trustee..............52
Section 910. Separate Indenture Trustees, Co-Indenture Trustees
and Custodians................................................53
Section 911. Representations and Warranties................................54
Section 912. Indenture Trustee Offices.....................................55
Section 913. Notice of Event of Default....................................55
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ARTICLE X
SUPPLEMENTAL INDENTURES
Section 1001. Supplemental Indentures Not Creating a New Series
Without Consent of Noteholders................................56
Section 1002. Supplemental Indentures Not Creating a New Series with
Consent of Noteholders........................................56
Section 1003. Execution of Supplemental Indentures..........................58
Section 1004. Effect of Supplemental Indentures.............................58
Section 1005. Reference in Notes to Supplemental Indentures.................58
Section 1006. Issuance of Series of Notes...................................58
ARTICLE XI
NOTEHOLDERS LISTS
Section 1101. Issuer to Furnish Indenture Trustee Names and
Addresses of Noteholders......................................60
Section 1102. Preservation of Information; Communications to Noteholders....60
ARTICLE XII
EARLY AMORTIZATION EVENTS
Section 1201. Early Amortization Events.....................................61
Section 1202. Remedies......................................................61
ARTICLE XIII
MISCELLANEOUS PROVISIONS
Section 1301. Compliance Certificates and Opinions..........................62
Section 1302. Form of Documents Delivered to Indenture Trustee..............62
Section 1303. Acts of Noteholders...........................................62
Section 1304. Inspection....................................................63
Section 1305. Limitation of Rights..........................................64
Section 1306. Severability..................................................64
Section 1307. Notices.......................................................64
Section 1308. Consent to Jurisdiction.......................................66
Section 1309. Captions......................................................66
Section 1310. Governing Law.................................................66
Section 1311. No Petition...................................................66
Section 1312. WAIVER OF JURY TRIAL..........................................66
Section 1313. Waiver of Immunity............................................66
Section 1314. Judgment Currency.............................................67
Section 1315. Series Enhancer...............................................67
Section 1316. Interest Rate Hedge Counterparty..............................67
Section 1317. Consents and Approvals........................................67
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Schedule I Maximum Concentrations for Lessees
EXHIBIT A - Form of Non-Recourse Release
EXHIBIT B - Investment Letter
EXHIBIT C - Form of Control Agreement
EXHIBIT D - Depreciation Methods by Type of Managed Container
EXHIBIT E - Form of Asset Base Certificate
EXHIBIT F Interest Rate Hedge Agreement Policy
APPENDIX A - Master Index of Defined Terms
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This Indenture, dated as of August 1, 2005 (as amended, modified or
supplemented from time to time as permitted hereby, this "Indenture"), between
TAL ADVANTAGE I LLC, a limited liability company organized under the laws of
Delaware (the "Issuer"), and U.S. Bank National Association, a national banking
association, as the Indenture Trustee (the "Indenture Trustee").
Each party agrees as follows for the benefit of the other party, the
Noteholders, each Series Enhancer, if any, and each Eligible Interest Rate Hedge
Counterparty.
GRANTING CLAUSE
To secure the payment of all Outstanding Obligations and the
performance of all of the Issuer's covenants and agreements in this Indenture
and all other Transaction Documents, the Issuer hereby grants, assigns, conveys,
mortgages, pledges, hypothecates and transfers to the Indenture Trustee, for the
benefit of Noteholders, each Series Enhancer, if any, and each Interest Rate
Hedge Counterparty, a security interest in and to all of the Issuer's right,
title and interest in, to and under the following, whether now existing or
hereafter created or acquired: (i) the Managed Containers (including any and all
substitutions therefor acquired from time to time) and other Transferred Assets,
(ii) the Trust Account, the Restricted Cash Account, any Series Account and all
amounts and Eligible Investments, Financial Assets, Investment Property,
Securities Entitlements and all other instruments, assets or amounts credited to
any of the foregoing or otherwise on deposit from time to time in the foregoing,
(iii) the Contribution and Sale Agreement, all Interest Rate Hedge Agreements
and the Management Agreement, (iv) all other assets and properties of the
Issuer, whether now existing or hereafter acquired, (v) all income, payments and
proceeds of the foregoing and all other assets granted, assigned, conveyed,
mortgaged, pledged, hypothecated and transferred to the Indenture Trustee
pursuant to this clause, and (vi) all of the following, whether now existing or
hereafter acquired:
(a) All Accounts;
(b) All Chattel Paper;
(c) All Lease Agreements;
(d) All Contracts;
(e) All Documents;
(f) All General Intangibles;
(g) All Instruments;
(h) All Inventory;
(i) All Supporting Obligations;
(j) All Equipment;
(k) All Letter-of-Credit Rights;
(l) All Commercial Tort Claims;
(m) All Investment Property;
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(n) 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;
(o) To the extent not included above and without limiting the
foregoing, all Chattel Paper, all Leases and all schedules, supplements,
amendments, modifications, renewals, extensions, and guarantees thereof in every
case whether now owned or hereafter acquired and all amounts, rentals, proceeds
and other sums of money due and to become due under the Container Related
Agreements, including (in each case only to the extent related to the Managed
Containers), without limitation, (i) all rentals, payments and other monies,
including all insurance payments and claims for losses due and to become due to
the Issuer under, and all claims for damages arising out of the breach of, any
Container Related Agreement; (ii) the right of the Issuer to terminate, perform
under, or compel performance of the terms of the Container Related Agreements;
(iii) any guarantee of the Container Related Agreements and (iv) any rights of
the Issuer in respect of any subleases or assignments permitted under the
Container Related Agreements;
(p) All insurance proceeds of the Collateral and all proceeds of the
voluntary or involuntary disposition of the Collateral or such proceeds;
(q) Any and all payments made or due to the Issuer in connection with
any requisition, confiscation, condemnation, seizure or forfeiture of all or any
part of the Collateral by any Governmental Authority and any other cash or
non-cash receipts from the sale, exchange, collection or other disposition of
the Collateral; and
(r) To the extent not otherwise included, all income and Proceeds of
each of the foregoing and all accessions to, substitutions and replacements for,
and rents, profits and products of each of the foregoing.
All of the property described in this Granting Clause is herein collectively
called the "Collateral" and as such is security for all Outstanding Obligations;
provided that notwithstanding anything to the contrary in this Indenture,
Collateral shall not include monies paid to the Issuer under this Indenture,
including monies received by the Issuer pursuant to Section 302 or Section 806.
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.
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ARTICLE I
DEFINITIONS
Section 101. Defined Terms. Capitalized terms used in this Indenture
shall have the meanings set forth in Appendix A hereto and the definitions of
such terms shall be equally applicable to both the singular and plural forms of
such terms.
Section 102. Other Definitional Provisions. (a) With respect to any
Series, all terms used herein and not otherwise defined herein shall have
meanings ascribed to such terms in the related Supplement.
(b) As used in this Indenture and in any certificate or other document
made or delivered pursuant hereto, accounting terms not defined in this
Indenture or in any such certificate or other document, and accounting terms
partly defined in this Indenture or in any such certificate or other document to
the extent not defined, shall have the respective meanings given to them under
GAAP consistently applied. To the extent that the definitions of accounting
terms in this Indenture or in any such certificate or other document are
inconsistent with the meanings of such terms under GAAP or regulatory accounting
principles, the definitions contained in this Indenture or in any such
certificate or other document shall control.
(c) With respect to any Collection Period, the "related Record Date,"
the "related Determination Date," and the "related Payment Date" shall mean the
Record Date occurring on the last Business Day of such Collection Period and the
Determination Date and Payment Date occurring in the month immediately following
the end of such Collection Period.
(d) With respect to any Series of Notes, the "related Supplement"
shall mean the Supplement pursuant to which such Series of Notes is issued and
the "related Series Enhancer" shall mean the Series Enhancer for such Series of
Notes.
(e) With respect to any ratio analysis required to be performed as of
the most recently completed fiscal quarter of a Person, the most recently
completed fiscal quarter shall mean the most recently completed fiscal quarter
for which financial statements were required hereunder to have been delivered.
(f) With respect to the calculations of the ratios set forth in this
Indenture, the components of such calculations are to be determined in
accordance with GAAP, consistently applied, with respect to the Issuer or the
Manager, as the case may be.
Section 103. Computation of Time Periods. Unless otherwise stated in
this Indenture or any Supplement, in the computation of a period of time from a
specified date to a later specified date, the word "from" means "from and
including" and the words "to" and "until" each means "to but excluding."
Section 104. Duties of Administrative Agent. All of the duties and
responsibilities of the Administrative Agent set forth in this Indenture, any
Supplement or any other Transaction Document are subject in all respects to the
terms and conditions of the Administration Agreement. Each of the Issuer, the
Indenture Trustee and, by acceptance of its Notes, each Noteholder hereby
acknowledges the terms of the Administration Agreement and agrees to cooperate
with the Administrative Agent in its execution of its duties and
responsibilities.
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Section 105. General Interpretive Principles. For purposes of this
Indenture (including Appendix A hereto) except as otherwise expressly provided
or unless the context otherwise requires:
(a) the defined terms in this Indenture shall include the plural as
well as the singular, and the use of any gender herein shall be deemed to
include any other gender;
(b) references herein to "Articles", "Sections", "Subsections",
"paragraphs", and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, paragraphs and other subdivisions of
this Indenture;
(c) a reference to a Subsection without further reference to a Section
is a reference to such Subsection as contained in the same Section in which the
reference appears, and this rule shall also apply to paragraphs and other
subdivisions;
(d) the words "herein", "hereof', "hereunder" and other words of
similar import refer to this Indenture as a whole and not to any particular
provision;
(e) the term "include" or "including" shall mean without limitation by
reason of enumeration; and
(f) When referring to Section 302 or Section 806 of this Indenture,
the term "or" shall be additive and not exclusive.
Section 106. Statutory References. References in this Indenture to any
section of the Uniform Commercial Code or the UCC shall mean, on or after the
effective date of adoption of any revision to the Uniform Commercial Code or the
UCC in the applicable jurisdiction, such revised or successor section thereto.
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ARTICLE II
THE NOTES
Section 201. Authorization of Notes. (a) The number of Series or
Classes of Notes which may be created by this Indenture is not limited;
provided, however, that, the issuance of any Series of Notes shall not result
in, or with the giving of notice or the passage of time or both would not result
in, the occurrence of an Early Amortization Event or an Event of Default. The
aggregate principal amount of Notes of each Series which may be issued,
authenticated and delivered under this Indenture is not limited except as shall
be set forth in any Supplement and as restricted by the provisions of this
Indenture.
(b) The Notes issuable under this Indenture shall be issued in such
Series, and such Class or Classes within a Series, as may from time to time be
created by Supplement pursuant to this Indenture. Each Series shall be created
by a different Supplement and shall be designated to differentiate the Notes of
such Series from the Notes of any other Series. The Issuer intends that each
such Note shall constitute a "security" within the meaning of Article 8 of the
UCC.
(c) Upon satisfaction of and compliance with the requirements and
conditions to Closing set forth in the related Supplement, Notes of the Series
to be executed and delivered on a particular Series Issuance Date pursuant to
such related Supplement, may be executed by the Issuer and delivered to the
Indenture Trustee for authentication following the execution and delivery of the
related Supplement creating such Series or from time to time thereafter, and the
Indenture Trustee shall authenticate and deliver Notes upon a request set forth
in an Officer's Certificate of the Issuer signed by one of its Authorized
Signatories, without further action on the part of the Issuer.
Section 202. Form of Notes; Global Notes. (a) Notes of any Series or
Class may be issued, authenticated and delivered, at the option of the Issuer,
as Regulation S Global Notes, Rule 144A Global Notes, or as Definitive Notes or
as may otherwise be set forth in a Supplement and shall be substantially in the
form of the exhibits attached to the related Supplement. Notes of each Series
shall be dated the date of their authentication and shall bear interest at such
rate, be payable as to principal, premium, if any, and interest on such date or
dates, and shall contain such other terms and provisions as shall be established
in the related Supplement. Except as otherwise provided in any Supplement, the
Notes shall be issued in minimum denominations of $250,000 and in integral
multiples of $250,000 in excess thereof; provided that one Note of each Class
may be issued in a nonstandard denomination. Notwithstanding any other provision
of this Indenture or any Supplement thereto, Subject Notes shall only be issued
in certificated form.
(b) If the Issuer shall choose to issue Regulation S Global Notes or
Rule 144A Global Notes, such notes shall be issued in the form of one or more
Regulation S Global Notes or one or more Rule 144A Global Notes which (i) shall
represent, and shall be denominated in an aggregate amount equal to, the
aggregate principal amount of all Notes to be issued under the related
Supplement, (ii) shall be delivered as one or more Notes held by the Book-Entry
Custodian, or, if appointed to hold such Notes as provided below, the Notes
shall be registered in the name of the Depositary or its nominee, (iii) shall be
substantially in the form of the exhibits attached to the related Supplement,
with such changes therein as may be necessary to reflect that each such Note is
a Global Note, and (iv) shall each bear a legend substantially to the effect
included in the form of the exhibits attached to the related Supplement.
(c) Notwithstanding any other provisions of this Section 202 or of
Section 205, unless and until a Global Note is exchanged in whole for Definitive
Notes, a Global Note may be transferred, in whole, but not in part, and in the
manner provided in this Section 202, only by (i) the Depositary to a nominee of
such Depositary, or (ii) by a nominee of such Depositary to such Depositary or
another nominee of such Depositary or (iii) by such Depositary or any such
nominee to a successor
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Depositary selected or approved by the Issuer or to a nominee of such successor
Depositary or in the manner specified in Section 202(d). The Depositary or the
Issuer shall order the Note Registrar to authenticate and deliver any Global
Notes and any Global Note for each Class of Notes having an aggregate initial
outstanding principal balance equal to the initial outstanding balance of such
Class. Noteholders shall hold their respective Ownership Interests in and to
such Notes through the book-entry facilities of the Depositary. Without limiting
the foregoing, any Noteholders shall hold their respective Ownership Interests,
if any, in Global Notes only through Depositary Participants.
(d) If (i) the Issuer elects to issue Definitive Notes, (ii) the
Depositary for the Notes represented by one or more Global Notes at any time
notifies the Issuer that it is unwilling or unable to continue as Depositary of
the Notes or if at any time the Depositary shall no longer be a clearing agency
registered under the Exchange Act, and a successor Depositary is not appointed
or approved by the Issuer within 90 days after the Issuer receives such notice
or becomes aware of such condition, as the case may be, (iii) the Indenture
Trustee, at the written direction of the Control Party for a Series, elects to
terminate the book-entry system through the Depositary for such Series or (iv)
after an Event of Default or a Manager Default, the Control Party for a Series
notifies the Depositary or Book-Entry Custodian for such Series, as the case may
be, in writing that the continuation of a book-entry system through the
Depositary or the Book-Entry Custodian, as the case may be, is no longer in the
best interest of the Noteholders of such Series, the Issuer will promptly
execute, and the Indenture Trustee, upon receipt of an Officer's Certificate
evidencing such determination by the Issuer, will promptly authenticate and make
available for delivery, Definitive Notes, in authorized denominations and in an
aggregate principal amount equal to the principal amount of one or more Global
Notes so exchanged in exchange for such one or more Global Notes or as an
original issuance of Notes and this Section 202(d) shall no longer be applicable
to the Notes of such Series. Upon the exchange of the Global Notes for such
Definitive Notes without coupons, in authorized denominations, such Global Notes
shall be canceled by the Indenture Trustee. All Definitive Notes shall be issued
without coupons. Such Definitive Notes issued in exchange of the Global Notes
pursuant to this Section 202(d) shall be registered in such names and in such
authorized denominations as the Depositary in the case of an exchange or the
Note Registrar in the case of an original issuance, pursuant to instructions
from its direct or indirect participants or otherwise, shall instruct the
Indenture Trustee. The Indenture Trustee may conclusively rely on any such
instructions furnished by the Depositary or the Note Registrar, as the case may
be, and shall not be liable for any delay in delivery of such instructions. The
Indenture Trustee shall make such Notes available for delivery to the Persons in
whose names such Notes are so registered.
(e) As long as the Notes Outstanding are represented by one or more
Global Notes:
(1) the Note Registrar and the Indenture Trustee may deal with the
Depositary for all purposes (including the payment of principal
of and interest on the Notes) as the authorized representative of
the Note Owners;
(2) the rights of Note Owners shall be exercised only through the
Depositary and shall be limited to those established by law and
agreements between such Note Owners and the Depositary or the
Depositary Participants. Unless and until Definitive Notes are
issued, the Depositary will make book-entry transfers among the
Depositary Participants and receive and transmit payments of
principal of, and interest on, the Notes to such Depositary
Participants; and
(3) whenever this Indenture requires or permits actions to be taken
based upon instructions or directions of Noteholders evidencing a
specified percentage of the voting rights of a particular Series,
the Depositary shall be deemed to represent such percentage only
to the extent that it has received instructions to such effect
from Note Owners and/or Depositary Participants owning or
representing,
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respectively, such required percentage of the beneficial interest
in the Notes (or Class of Notes) and has delivered such
instruction to the Indenture Trustee.
(f) Whenever a notice or other communication to the Noteholders is
required under this Indenture, unless and until Definitive Notes have been
issued to the Noteholders, the Indenture Trustee shall give all such notices and
communications to the Depositary.
(g) The Indenture Trustee is hereby initially appointed as the
Book-Entry Custodian and hereby agrees to act as such in accordance with the
agreement that it has with the Depositary authorizing it to act as such. 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 Depositary, any other transfer agent (including the Depositary or
any successor Depositary) to act as Book-Entry Custodian under such conditions
as the predecessor Book-Entry Custodian and the Depositary or any successor
Depositary 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 Depositary. If the Indenture Trustee resigns
or is removed in accordance with the terms hereof, the successor Indenture
Trustee or, if it so elects, the Depositary shall immediately succeed to its
predecessor's duties as Book-Entry Custodian. The Issuer shall have the rights
to inspect, and to obtain copies of, any Notes held as Global Notes by the
Book-Entry Custodian.
(h) The provisions of Section 205(g) shall apply to all transfers of
Definitive Notes, if any, issued in respect of Ownership Interests in the Rule
144A Global Notes.
Section 203. Execution; Recourse Obligation. The Notes shall be
executed on behalf of the Issuer by an Authorized Signatory of the Issuer. The
Notes shall be dated the date of their authentication by the Indenture Trustee.
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
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be endorsed thereon a certificate of authentication by the Indenture Trustee,
substantially in the form set forth in the form of Note attached to the related
Supplement. Such certificate on any Note shall be conclusive evidence and the
only competent evidence that the Note has been duly authenticated and delivered
hereunder.
At the written direction of the Issuer, the Indenture Trustee shall
authenticate and deliver the Notes. It shall not be necessary that the same
signatory of the Indenture Trustee execute the certificate of authentication on
each of the Notes.
Section 205. Registration; Registration of Transfer and Exchange of
Notes.
(a) Initially, the Indenture Trustee shall keep at its Corporate Trust
Office books for the registration and transfer of the Notes (the "Note
Register"). The Issuer hereby appoints the Indenture Trustee as its registrar
(the "Note Registrar") and transfer agent to keep such books and make such
registrations and transfers as are hereinafter set forth in this Section 205 and
also authorizes and directs the Indenture Trustee to provide a copy of such
registration record to each of the Administrative Agent and the Manager upon
their request. The names and addresses of the Noteholders and all transfers of,
and the names and addresses of the transferee of, all Notes will be registered
in such Note Register. The Person in whose name any Note is so registered shall
be deemed and treated as the owner and Noteholder thereof for all purposes of
this Indenture, and none of the Indenture Trustee, any Series Enhancer, the Note
Registrar or the Issuer shall be affected by any notice or knowledge to the
contrary. 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
and the Administrative Agent prompt written notice of such appointment and of
the location, and any change in the location, of the successor Note Registrar,
and the Indenture Trustee and any Series Enhancer 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.
(b) Payments of principal, premium, if any, and interest on any Note
shall be payable on each Payment Date only to the Person that was the Noteholder
thereof on the Record Date immediately preceding such Payment Date. The
principal of, premium, if any, and interest on each Note shall be payable at the
Corporate Trust Office of the Indenture Trustee in immediately available funds
in such coin or currency of the United States of America as at the time for
payment shall be legal tender for the payment of public and private debts.
(c) Notwithstanding the foregoing or any provision in any Note to the
contrary, if so requested by the Noteholder by written notice (given at least
ten (10) days prior to the applicable Payment Date) to the Indenture Trustee,
all amounts payable to such Noteholder may be paid either (i) by crediting the
amount to be distributed to such Noteholder to an account maintained by such
Noteholder with the Indenture Trustee or by transferring such amount by wire to
such other bank in the United States, including a Federal Reserve Bank, as shall
have been specified in such notice, for credit to the account of such Noteholder
maintained at such bank, or (ii) by mailing a check to such address as such
Noteholder shall have specified in such notice, in either case without any
presentment or surrender of such Note to the Indenture Trustee at the Corporate
Trust Office of the Indenture Trustee.
(d) All payments on the Notes shall be paid to the Noteholders by wire
transfer of immediately available funds for receipt prior to 2:00 p.m. (New York
City time) on the related Payment Date. Any such payments received by the
Noteholders after 2:00 p.m. (New York City time) on any day shall be considered
to have been received on the next succeeding Business Day; provided, however,
that if the Issuer has deposited the required funds with the Indenture Trustee
by close of business one (1) Business Day prior to the Payment Date, then the
Issuer shall be deemed to have made such payment at
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the time so required on such date. Notwithstanding the foregoing or any
provision in any Note to the contrary, if so requested by the registered
Noteholder by written notice to the Indenture Trustee, all amounts payable to
such registered Noteholder may be paid by mailing a check to such address as
such Noteholder shall have specified in such notice, in either case without any
presentment or surrender of such Note to the Indenture Trustee at the Corporate
Trust Office of the Indenture Trustee.
(e) Upon surrender for registration of transfer of any Note at the
Corporate Trust Office, the Issuer shall execute and the Indenture Trustee, upon
written request, shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Notes of the same Series and Class,
of any authorized denominations and of alike aggregate original principal
amount.
(f) All Notes issued upon any registration of transfer or exchange of
Notes shall be the legal, valid and binding obligations of the Issuer,
evidencing the same debt, and entitled to the same benefits under this Indenture
and the relevant Supplement, as the Notes surrendered upon such registration of
transfer or exchange.
(g) Every Note presented or surrendered for registration of transfer
or for exchange shall be duly endorsed, or be accompanied by a written
instrument of transfer, in form satisfactory to the Issuer and the Indenture
Trustee duly executed, by the Noteholder thereof or his attorney duly authorized
in writing.
(h) Any service charge, fees or expenses made or expense incurred by
the Indenture Trustee for any such registration of transfer or exchange referred
to in this Section 205 shall be paid by the applicable Noteholder. The Indenture
Trustee or the Issuer may require payment by the applicable Noteholder of a sum
sufficient to cover any tax, expense or other governmental charge payable in
connection therewith.
(i) Unless otherwise specified in the related Supplement, no transfer
of any Note or interest therein shall be made unless that transfer is made
pursuant to an effective registration statement under the Securities Act, and
effective registration or qualification under applicable state securities laws,
or is made in a transaction that does not require such registration or
qualification. If a transfer of any Definitive Note is to be made without
registration under the Securities Act (other than in connection with the initial
issuance thereof or a transfer thereof by the Depositary or one of its
Affiliates), then the Note Registrar shall refuse to register such transfer
unless it receives (and upon receipt, may conclusively rely upon) either: (i) an
Investment Letter signed by such Noteholder and such Noteholder's prospective
transferee; or (ii) an Opinion of Counsel satisfactory to the Indenture Trustee
and the Issuer to the effect that such transfer may be made without registration
under the Securities Act (which Opinion of Counsel shall not be an expense of
the Issuer or any Affiliate thereof or of the Depositary, the Manager, the
Indenture Trustee, any Series Enhancer or the Note Registrar in their respective
capacities as such), together with the written certification(s) as to the facts
surrounding such transfer from the Noteholder desiring to effect such transfer
or such Noteholder's prospective transferee on which such Opinion of Counsel is
based. If such a transfer of any interest in a Global Note is to be made without
registration under the Securities Act, the transferor will be deemed to have
made each of the representations and warranties set forth on Exhibit B hereto in
respect of such interest as if it was evidenced by a Definitive Note and the
transferee will be deemed to have made each of the representations and
warranties set forth in either Exhibit B hereto in respect of such interest as
if it was evidenced by a Definitive Note. None of the Depositary, the Issuer,
the Indenture Trustee or the Note Registrar is obligated to register or qualify
any Class of Notes under the Securities Act or any other securities law or to
take any action not otherwise required under this Indenture to permit the
transfer of any Note or interest therein without such registration or
qualification. Any Noteholder or Note Owner desiring to effect such a transfer
shall, and does hereby agree to, indemnify the Depositary, the Issuer, the
Indenture Trustee and the Note Xxxxxxxxx
0
against any liability that may result if any transfer made in accordance with
the preceding sentence did in fact require registration under the Securities
Act.
(j) If Notes are issued or exchanged in definitive form under Section
202, such Notes will not be registered by the Indenture Trustee unless each
prospective initial Noteholder acquiring a Note, each prospective transferee
acquiring a Note and each prospective owner (or transferee thereof) of a
beneficial interest in Notes (each, a "Prospective Owner") acquiring such
beneficial interest provides the Manager, the Issuer, the Trustee and any
successor Manager with a written representation to the effect set forth in
either subsection (i) or (ii) of Section 208.
(k) No sale, assignment or other transfer of a Note shall be effective
or deemed effective if such sale, assignment or other transfer is to a
Competitor. Neither the Indenture Trustee nor the Issuer is under any obligation
to register the Notes under the Securities Act or any other securities law or to
bear any expense with respect to such registration by any other Person or
monitor compliance of any transfer with the securities laws of the United States
regulations promulgated in connection thereto or ERISA.
(l) Notwithstanding any other provision of this Indenture, any Note
for which an Opinion of Counsel has not been rendered to the Issuer to the
effect that such Note constitutes debt for United States federal income tax
purposes (a "Subject Note") shall be subject to the limitations of this Section
205(l). No Subject Notes may be transferred, and no transfer (or purported
transfer) of all or any part of a Subject Note (or any direct or indirect
economic or beneficial interest therein) (a "Transferred Note") whether to
another Noteholder or to a Person that is not a Noteholder (a "Transferee"),
shall be effective, and to the greatest extent permitted under Applicable Law
any such transfer (or purported transfer) shall be void ab initio, and no Person
shall otherwise become a Holder of a Subject Note, unless: (i) the Transferee
provides the Note Registrar with its representations and warranties made for the
benefit of the Issuer to the effect that: (A) either (I) it is not and will not
become for U.S. federal income tax purposes a partnership, Subchapter S
corporation or grantor trust (each such entity a "flow-through entity") or (II)
if it is or becomes a flow-through entity, then (x) none of the direct or
indirect beneficial owners of any of the interests in the Transferee have or
ever will have all or substantially all the value of its interest in the
Transferee attributable to the interest of the Transferee in any Transferred
Note, any other Notes, other interest (direct or indirect) in the Issuer, or any
interest created under this Indenture and (y) it is not and will not be a
principal purpose of the arrangement involving the investment of the Transferee
in any Transferred Note to permit any partnership to satisfy the 100 partner
limitation of Section 1.7704-1(h)(1)(ii) of the Treasury Regulations necessary
for such partnership not to be classified as a publicly traded partnership under
the Code, (B) the Transferee will not sell, assign, transfer or otherwise convey
any participating interest in any Note or any financial instrument or contract
the value of which is determined by reference in whole or in part to any Note,
(C) it is not acquiring and will not sell, transfer, assign, participate, pledge
or otherwise dispose of any Transferred Note(s) (or interest therein) or cause
any Transferred Note(s) (or interest therein) to be marketed on or through an
"established securities market" within the meaning of Section 7704(b) of the
Code, including, without limitation, an interdealer quotation system that
regularly disseminates firm buy or sell quotations, and (D) in the case of
Subject Notes other than the Series 2005-1 Notes that it is a "U.S. Person"
within the meaning of Section 7701(a)(30) of the Code, and (ii) after such
transfer there would be more than 90 members of the limited liability company
that is the Issuer (including as members, solely for purposes of this Section
205(l), Holders of any Subject Notes). The Issuer shall not recognize any
prohibited Transfer described in this paragraph either (i) by redeeming the
transferor's interest, or (ii) by admitting the Transferee as such a member or
otherwise recognizing any right of the Transferee (including, without
limitation, any right of the Transferee to receive payments or other
distributions from the Issuer, directly or indirectly).
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Section 206. Mutilated Destroyed, Lost and Stolen Notes.
(a) If (i) any mutilated Note is surrendered to the Indenture Trustee,
or the Indenture Trustee receives evidence to its satisfaction of the
destruction, loss or theft of any Note, and (ii) there is delivered to the
Indenture Trustee such security or indemnity as it and the Issuer may require to
hold the Issuer, the Manager and the Indenture Trustee harmless, then the Issuer
shall execute and the Indenture Trustee shall authenticate and deliver, in
exchange for or in lieu of any such mutilated, destroyed, lost or stolen Note, a
replacement Note of the same Series and Class and maturity and of like terms as
the mutilated, destroyed, lost or stolen Note; provided, however, that if any
such destroyed, lost or stolen Note, but not a mutilated Note, shall have
become, or within seven days shall be, due and payable, the Issuer may pay such
destroyed, lost or stolen Note when so due or payable instead of issuing a
replacement Note.
(b) If, after the delivery of such replacement Note, or payment of a
destroyed, lost or stolen Note pursuant to the proviso to the preceding
sentence, a protected purchaser (as defined in the UCC) of the original Note in
lieu of which such replacement Note was issued (or such payment was made)
presents for payment such original Note, the Issuer and the Indenture Trustee
shall be entitled to recover upon the security or indemnity provided therefor to
the extent of any and all loss, damage, cost or expense incurred by the Issuer
or the Indenture Trustee in connection therewith.
(c) The Indenture Trustee and the Issuer may, for each new Note
authenticated and delivered under the provisions of this Section 206, require
the advance payment by the Noteholder of the expenses, including counsel fees,
service charges and any tax or governmental charge that may be incurred by the
Indenture Trustee or the Issuer in connection therewith. Any Note issued under
the provisions of this Section 206 in lieu of any Note alleged to be destroyed,
mutilated, lost or stolen, shall be equally and proportionately entitled to the
benefits of this Indenture with all other Notes of the same Series and Class.
The provisions of this Section 206 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
Section 207. Delivery, Retention and Cancellation of Notes. Each
Noteholder is required, and hereby agrees, to return to the Indenture Trustee
or, if any Series Enhancer has made any unreimbursed payment on such Notes, to
such Series Enhancer, such return to be completed within thirty (30) days after
the receipt of such payment, any Note on which the final payment due thereon has
been made. Any such Note as to which the Indenture Trustee has made or holds the
final payment thereon shall be deemed canceled and unless any unreimbursed
payment on such Note has been made by a Series Enhancer, shall no longer be
Outstanding for any purpose of this Indenture, whether or not such Note is ever
returned to the Indenture Trustee. Matured Notes delivered upon final payment to
the Indenture Trustee and any Notes transferred or exchanged for other Notes
shall be canceled and disposed of by the Indenture Trustee in accordance with
its policy of disposal and the Indenture Trustee shall promptly deliver to the
Issuer such canceled Notes. If the Indenture Trustee shall acquire, for its own
account, any of the Notes, such acquisition shall not operate as a redemption or
satisfaction of the indebtedness represented by such Notes. If the Issuer shall
acquire any of the Notes, such acquisition shall operate as a redemption or
satisfaction of the indebtedness represented by such Notes. Notes which have
been canceled by the Indenture Trustee shall be deemed paid and discharged for
all purposes under this Indenture.
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Section 208. ERISA Deemed Representations. Each prospective initial
Noteholder and each Prospective Owner of a Warehouse Note will be deemed to have
represented and warranted by such purchase that it is not acquiring the
Warehouse Note with the assets of a Benefit Plan Investor. Each prospective
initial Noteholder and each Prospective Owner of a Term Note will be deemed to
have represented and warranted by such purchase that either (i) it is not
acquiring the Term Notes with the assets of a Benefit Plan; or (ii) the
acquisition and holding of the Term Note will not give rise to a nonexempt
prohibited transaction under Section 406(a) of ERISA or Section 4975 of the
Code.
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ARTICLE III
PAYMENT OF NOTES; STATEMENTS TO NOTEHOLDERS
Section 301. Principal and Interest. Distributions of principal,
premium, if any, and interest on any Series or Class of Notes shall be made to
Noteholders of each Series and Class as set forth in Section 302 of this
Indenture and in the related Supplement. Additional interest calculated at the
Default Rate shall be payable with respect to any payment of principal and/or
interest on any Note which is not paid when due. The maximum Default Rate for
any Note of any Series shall be equal to the sum of (i) two percent (2%) per
annum, plus (ii) the interest rate for such Note immediately prior to the
occurrence of the relevant Event of Default. If interest or principal amounts
owing on Notes are paid by a Series Enhancer and additional interest at the
Default Rate otherwise would be owing to the Noteholders of such Notes, then the
Default Rate shall be owed to such Series Enhancer and shall not be paid to
applicable Noteholders of such Series unless the related Series Enhancer has
failed to make payment of such amounts in accordance with the terms of any
applicable Enhancement Agreement. Except as set forth in any Supplement, all
interest payable on the Notes and all commitment and other fees payable to the
Noteholders shall be computed on the basis of a 360-day year for the actual
number of days which have elapsed in the relevant calculation period.
Section 302. Trust Account. (a) The Issuer shall establish and
maintain so long as any Outstanding Obligation remains unpaid the Trust Account
into which the Issuer shall deposit (or cause to be deposited) all of the
following amounts: (i) all amounts representing Estimated Net Operating Income
(and adjustments thereof), Casualty Proceeds and Sales Proceeds with respect to
the Managed Containers received from the Manager pursuant to the terms of the
Management Agreement, (ii) all Manager Advances, (iii) all amounts received by
the Issuer pursuant to the terms of all Interest Rate Hedge Agreements then in
effect, and (iv) other payments specified to be deposited therein pursuant to
the terms of this Indenture and the other Transaction Documents. Such Trust
Account shall initially be established and maintained with the Corporate Trust
Office of the Indenture Trustee in trust for the Indenture Trustee, on behalf of
the Noteholders, each Interest Rate Hedge Counterparty and each Series Enhancer,
until all Outstanding Obligations are paid in full. The Trust Account shall at
all times be an Eligible Account, shall be in the name of the Issuer and shall
be pledged to the Indenture Trustee pursuant to the terms of this Indenture. The
Issuer shall not establish any additional Trust Accounts without (in each
instance) prior written notice to the Indenture Trustee and each Series
Enhancer, if any.
(b) The Issuer shall cause the Manager to deposit into the Trust
Account in accordance with the provisions of Section 5.1 and 5.2 of the
Management Agreement amounts representing the Estimated Net Operating Income
(and adjustments thereof), Casualty Proceeds and Sales Proceeds with respect to
the Managed Containers. The Manager shall be permitted to require the Indenture
Trustee to withdraw from amounts on deposit in the Trust Account on each Payment
Date, or otherwise net out from amounts otherwise required to be deposited by
the Manager in the Trust Account in accordance with the provisions of Section
5.1 and 5.2 of the Management Agreement, the amount of any Management Fees or
Management Fee Arrearage that would otherwise be due and payable on the
immediately succeeding Payment Date.
(c) On each Determination Date, the Issuer shall cause the Manager,
pursuant to Section 4.1.2 of the Management Agreement, to prepare and deliver
the Manager Report. On each Payment Date, the Indenture Trustee, based on the
Manager Report and in accordance with the terms of this Indenture and each
Supplement, shall distribute from the Trust Account an amount equal to the sum
of (i) all amounts representing the Net Operating Income of the Eligible
Containers received during the related Collection Period, (ii) all other amounts
received by the Issuer subsequent to the immediately preceding Payment Date,
(iii) all amounts transferred from the Restricted Cash Account in accordance
with the provisions of Section 306 hereof; provided that the amounts described
in this clause (iii) may be
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used only to make the payments described in Section 306 hereof, (iv) any
earnings on Eligible Investments in the Trust Account, the Restricted Cash
Account and any Series Accounts, (v) all Manager Advances made by the Manager in
accordance with the terms of the Management Agreement subsequent to the
immediately preceding Payment Date, (vi) the net amount received by the Issuer
pursuant to any Interest Rate Hedge Agreement then in effect and (vii) if so
directed by the Issuer, amounts, proceeds and funds contemplated by Section
302(f) (unless the Issuer directs otherwise, the amounts and proceeds
contemplated by this clause (vii) shall be applied only in respect of principal
on Notes of one or more Series) (the sum of the amounts described in clauses (i)
through (vii) collectively, the "Available Distribution Amount"), to the
following Persons, by wire transfer of immediately available funds, in the order
of priority listed below (in the absence of any Manager Report, the Indenture
Trustee shall distribute the Available Distribution Amount in accordance with
written instructions from the Administrative Agent (with a copy to the Issuer,
each Series Enhancer and each Interest Rate Hedge Counterparty) and shall hold
until delivery of the Manager Report (i) any funds otherwise payable due to the
Issuer and (ii) any other amounts which the Administrative Agent is unable to
ascertain or allocate to a specific payment priority set forth in this
Indenture):
(I) If no Early Amortization Event or Event of Default shall have occurred and
shall then be continuing:
(1) To the Indenture Trustee, all the Indenture Trustee's Fees then
due and payable for all Series then Outstanding (subject to the
per annum dollar limitation in Section 905);
(2) To the Administrative Agent, the Administrative Agent Fees then
due and payable;
(3) To the Manager, an amount equal to the sum of: (i) the Management
Fee then due and payable, (ii) the amount of any Management Fee
Arrearage, and (iii) any Excess Deposit then due and payable, but
in each case only to the extent not previously withheld by the
Manager in accordance with the terms of the Transaction
Documents;
(4) To the Manager, reimbursement for any Manager Advances;
(5) To the Persons entitled thereto: (i) any auditing, accounting and
related fees then due and payable which are classified as an
Issuer Expense and (ii) any other Issuer Expenses then due and
payable, so long as the aggregate amount paid pursuant to this
clause (5)(ii) in any calendar year would not exceed five hundred
thousand Dollars ($500,000);
(6) To each of the following: (i) to the Issuer, the amount of any
indemnity payments payable to the officers, directors and/or
managers of the Issuer required to be made by the Issuer, and
(ii) to the Manager, the amount of any officer and director
indemnity payments required to be made by the Manager;
(7) To each Series Enhancer, pro rata based on the amount of Premiums
then due and payable, the amount of any Premium then due and
payable pursuant to the terms of each applicable Enhancement
Agreement;
(8) To each of the following on a pro rata basis: (i) to each Series
Account for each Series of Notes then Outstanding, an amount
equal to the Priority Payments for each such Series and (ii) to
each Interest Rate Hedge Counterparty, the amount of
14
any scheduled payments (but excluding termination payments) then
due and payable pursuant to the terms of any Interest Rate Hedge
Agreement then in effect. If sufficient funds do not exist to pay
in full all such Priority Payments, such amounts shall be
allocated among all Series of Notes in the same proportion as the
ratio of (x) the Priority Payments of a particular Series of
Notes then Outstanding on such Payment Date to (y) the sum of the
Priority Payments for all Series of Notes then Outstanding on
such Payment Date;
(9) To the Restricted Cash Account, an amount sufficient so that the
total amount on deposit therein, is equal to the Restricted Cash
Amount for such Payment Date;
(10) To each Series Account for each Series of Notes then Outstanding,
all Minimum Principal Payment Amounts for each such Series;
(11) To each Series Account for each Series of Notes then Outstanding,
all Scheduled Principal Payment Amounts for each such Series;
(12) To each Series Account for each Series of Notes then Outstanding,
an amount equal to the Supplemental Principal Payment Amounts for
each Series (subject to the terms of Section 702(a));
(13) To each Interest Rate Hedge Counterparty, on a pro rata basis,
the amount of any unpaid payments then due and payable (including
termination payments but excluding any payments made pursuant to
clause (8) above) pursuant to the terms of any Interest Rate
Hedge Agreement then in effect;
(14) To the Noteholders and any Series Enhancer, any Indemnified
Amounts then due and payable and to the Indenture Trustee, any
Indenture Trustee's Fees then due and payable, after giving
effect to the payment made pursuant to clause (1) above but not
subject to the per annum dollar limitation in Section 905;
(15) To the Issuer, the amount of any remaining indemnity payment
owing by it pursuant to the terms of the Transaction Documents
and not paid pursuant to clauses (5) and (6) above;
(16) To the Manager, the amount of any remaining unpaid indemnity
payments owing by it pursuant to the terms of the Management
Agreement and not paid pursuant to clauses (5) and (6) above; and
(17) To the Issuer, any remaining Available Distribution Amount which
may, any provision in the Transaction Documents to the contrary
notwithstanding, be used by the Issuer for any purpose,
including, without limitation, general corporate purposes, the
distribution of dividends, repayment of debt, paying fees and
expenses or any other purpose in the sole discretion of the
Issuer.
(II) If an Early Amortization Event shall then be continuing, but no Event of
Default shall then be continuing (or an Event of Default has occurred but the
Notes have not been accelerated in accordance with Section 802 hereof):
(1) To the Indenture Trustee, all the Indenture Trustee's Fees then
due and payable for all Series then Outstanding (subject to the
per annum dollar limitation in Section 905);
15
(2) To the Administrative Agent, the Administrative Agent Fees then
due and payable;
(3) To the Manager, an amount equal to the sum of: (i) the Management
Fee then due and payable, (ii) the amount of any Management Fee
Arrearage, and (iii) any Excess Deposit then due and payable, but
in each case only to the extent not previously withheld by the
Manager in accordance with the terms of the Transaction
Documents;
(4) To the Manager, reimbursement for any Manager Advances;
(5) To the Persons entitled thereto: (i) any auditing, accounting and
related fees then due and payable which are classified as an
Issuer Expense and (ii) any other Issuer Expenses, so long as the
aggregate amount paid pursuant to this clause (5)(ii) in any
calendar year would not exceed five hundred thousand Dollars
($500,000);
(6) To each Series Enhancer, pro rata based on the amount of Premiums
then due and payable, the amount of any Premium then due and
payable pursuant to the terms of each applicable Enhancement
Agreement;
(7) To each of the following on a pro rata basis: (i) to each Series
Account for each Series of Notes then Outstanding, an amount
equal to the Priority Payments (including reimbursements and
interest thereon payable to any related Series Enhancer) for each
such Series and (ii) to each Interest Rate Hedge Counterparty,
the amount of any scheduled payments (but excluding termination
payments then due and payable pursuant to the terms of any
Interest Rate Hedge Agreement then in effect). If sufficient
funds do not exist to pay in full all such Priority Payments,
such amounts shall be allocated among all Series of Notes in the
same proportion as the ratio of (x) the Priority Payments of a
particular Series of Notes then Outstanding on such Payment Date
to (y) the sum of the Priority Payments for all Series of Notes
then outstanding on such Payment Date;
(8) To each of the following on a pro rata basis: (i) to the Issuer,
the amount of any indemnity payments payable to the officers,
directors and/or managers of the Issuer required to be made by
the Issuer and (ii) to the Manager, the amount of any officer or
director indemnity payments required to be made by the Manager;
provided that if any Cross-Over Event is then continuing, the
aggregate amount of all payment made pursuant to this clause (8)
since the date on which such Cross-Over Event occurred shall not
exceed Two Million Dollars ($2,000,000);
(9) To the Restricted Cash Account, an amount sufficient so that the
total amount on deposit therein is equal to the Restricted Cash
Amount for such Payment Date;
(10) To each Series Account for each Series of Notes then Outstanding,
all Minimum Principal Payment Amounts for each such Series;
(11) To each Series Account for each Series of Notes then Outstanding,
all Scheduled Principal Payment Amounts for each such Series;
(12) To each Series of Notes then Outstanding, pro rata based on
unpaid principal amounts, until all Series of Notes have been
paid in full;
16
(13) To each Interest Rate Hedge Counterparty, on a pro rata basis,
the amount of any other unpaid amounts owing by the Issuer
(including termination payments) then due and payable pursuant to
the terms of any Interest Rate Hedge Agreement then in effect;
(14) To the Indenture Trustee, any Indenture Trustee's Fees then due
and payable, after giving effect to the payment made pursuant to
clause (1) above but not subject to the per annum dollar
limitation in Section 905;
(15) To each Series Account, the following amounts: (i) for each
Series of Notes then Outstanding, an amount equal to any
increased costs, funding costs, breakage costs, taxes, other
indemnification payments and any other unpaid Reimbursement
Amount then due and owing to the related Series Enhancer pursuant
to the terms of the related Enhancement Agreement and the
Transaction Documents for such Series pro rata based on such
amounts due for such Series of Notes then Outstanding, (ii) to
each Series Account for each Series of Warehouse Notes then
Outstanding, an amount equal to the Step-Up Warehouse Interest
including any accrued and unpaid Step-Up Warehouse Interest pro
rata based on such amounts due for such Series of Warehouse Notes
and (iii) an amount equal to any Default Interest then due and
owing pursuant to the terms of the related Supplement, plus
indemnity payments, increased costs and taxes pro rata based on
such amounts due for such Series of Notes then Outstanding; and
(16) To the Issuer, the amount of any indemnity payments required to
be made by the Issuer pursuant to the terms of the Transaction
Documents and not paid pursuant to clause (8) above;
(17) To the Manager, the amount of any indemnity payments not paid
pursuant to clause (8) above required to be made by the Manager;
and
(18) To the Issuer, any remaining Available Distribution Amount which
may, any provision in the Transaction Documents to the contrary
notwithstanding, be used by the Issuer for any purpose,
including, without limitation, general corporate purposes, the
distribution of dividends, repayment of debt, paying fees and
expenses or any other purpose in the sole discretion of the
Issuer.
(d) If on any Payment Date described in section (I) or (II) above,
there are not sufficient funds to pay, in full, the Minimum Principal Payment
Amounts and/or Scheduled Principal Payment Amounts owing to all Series of Notes
then Outstanding, as the case may be, then, subject to the priority of payments
set forth above, any such principal payments having the same payment priority
will be paid, in full, to the Series first issued (based on their respective
dates of issuance or Conversion Dates, as applicable) in chronological order
based on their respective dates of issuance or Conversion Dates, as applicable.
For purposes of this Section 302(d) only, any Series designated as a Warehouse
Note will be deemed to have an issuance date equivalent to its Conversion Date.
If two or more Series of the Notes were issued on the same date or have the same
Conversion Date, then principal payments having the same payment priority will
be allocated among each such Series, on a pro rata basis, based on the principal
payments then due.
(e) If any Series has more than one Class of Notes then Outstanding,
then the Available Distribution Amount shall be calculated without regard to the
payment priorities of the Classes of Notes within such Series. Once the
Available Distribution Amount has been allocated to each Series, then that
portion of the Available Distribution Amount allocable to such Series shall be
paid to each Class
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of Noteholders of such Series in accordance with the priority of payments set
forth in the related Supplement.
(f) The Issuer shall have the right, but not the obligation, to make
(or to direct the Indenture Trustee to make) principal payments on any Series of
Notes and payments of other Outstanding Obligations from some or all of (i)
amounts that are payable or have been paid to the Issuer pursuant to this
Section 302, (ii) amounts that the Issuer receives from advances or draws under
any Series of Warehouse Notes, (iii) proceeds of the issuance of any Series of
Notes, and (iv) other funds held by the Issuer. Without limiting the foregoing,
at the direction of the Issuer, amounts and proceeds contemplated by the
preceding sentence may be included in distributions in respect of principal
payments on the Notes of one or more Series and payments of other Outstanding
Obligations pursuant to Section 302(c).
(g) Notwithstanding anything in this Section 302 to the contrary, the
payments provided for in Section 302(c)(I)(6), 302(c)(II)(8), 302(c)(II)(16) and
302(c)(II)(17) shall not be made with respect to any officer or director if a
final judgment has been entered to the effect that such officer or director is
not entitled to indemnity pursuant to the terms of the applicable organizational
documents or applicable law.
Section 303. Investment of Monies Held in the Trust Account, the
Restricted Cash Account and Series Accounts; Control over Eligible Investments.
(a) The Indenture Trustee shall invest any cash deposited in the Trust
Account, the Restricted Cash Account and each Series Account in such Eligible
Investments as the Issuer shall direct in writing or by telephone and
subsequently confirm in writing. Each Eligible Investment (including
reinvestment of the income and proceeds of Eligible Investments) shall be held
to its maturity and shall mature or shall be payable on demand not later than
the Business Day immediately preceding the next succeeding Payment Date. If the
Indenture Trustee has not received written instructions from the Issuer by 2:30
p.m. (New York time) on the day such funds are received as to the investment of
funds then on deposit in any of the aforementioned accounts, the Issuer hereby
instructs the Indenture Trustee to invest such funds in overnight investments of
the type described in clause (iv) of the definition of Eligible Investments. Any
funds in the Trust Account, the Restricted Cash Account, and each Series Account
not so invested must be fully insured by the Federal Deposit Insurance
Corporation. Eligible Investments shall be made in the name of the Securities
Intermediary, and subject to the terms of the Control Agreements. Any earnings
on Eligible Investments in the Trust Account, the Restricted Cash Account, and
each Series Account shall be retained in each such account and be distributed in
accordance with the terms of this Indenture or any related Supplement. The
Indenture Trustee shall not be liable or responsible for losses on any
investments made by it pursuant to this Section 303.
(b) On or prior to the Initial Closing Date (or the related Closing
Date, as applicable), each of the Issuer and the Securities Intermediary shall
enter into control agreements (each a "Control Agreement", collectively, the
"Control Agreements") substantially in the form of Exhibit C hereto for each of
the Trust Account, the Restricted Cash Account, and any Series Accounts. At all
times on and after the Initial Closing Date (or the related Closing Date, as
applicable), each such account shall be the subject of a Control Agreement.
(c) The Indenture Trustee, acting in accordance with the terms of this
Indenture, shall be entitled to deliver an Entitlement Order to the Securities
Intermediary at which such accounts are maintained at any time; provided,
however, that the Indenture Trustee agrees not to invoke its right to provide an
Entitlement Order unless an Event of Default has occurred and is continuing.
Such Control Agreements shall provide that upon receipt of the Entitlement Order
in accordance with the provisions of this Indenture, the Indenture Trustee shall
comply with such Entitlement Order without further consent by the Issuer or any
other Person.
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(d) Each of the Trust Account, the Restricted Cash Account and the
Series Accounts shall be initially established with the Indenture Trustee and,
so long as any Outstanding Obligation remains unpaid, shall be maintained with
the Indenture Trustee so long as (A) the short-term unsecured debt obligations
of the financial institution fulfilling the role of the Indenture Trustee are
rated not less than the Required Deposit Rating or (B) each of the Trust
Account, the Restricted Cash Account and the Series Accounts are maintained at
the Corporate Trust Office of the Indenture Trustee. If any of the Trust
Account, the Restricted Cash Account or the Series Accounts are not maintained
at the Corporate Trust Office of the Indenture Trustee or if the short-term
unsecured debt obligations of the Indenture Trustee fall below the Required
Deposit Rating, then the Issuer shall within 10 Business Days after obtaining
knowledge of such condition and, with the Indenture Trustee's assistance as
necessary, cause each of the Trust Account, the Restricted Cash Account and the
Series Accounts to be transferred to either (A) an Eligible Institution which
then maintains the Required Deposit Rating and is otherwise acceptable to the
Administrative Agent and each Series Enhancer, if any, or (B) with the prior
written consent of the Administrative Agent and each Series Enhancer, if any,
the Corporate Trust Office of the successor Indenture Trustee. If any of the
Trust Account, the Restricted Cash Account or any Series Account 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 Administrative Agent and each Series Enhancer,
if any, and shall cause a new Control Agreement to be entered into with such
Person.
(e) Each of the Trust Account, the Restricted Cash Account and each
Series Account shall be maintained in the State of New York, 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 and each
Series Account (as well as the Securities Entitlements related thereto) shall be
governed by the laws of the State of New York.
(f) The Securities Intermediary has not entered into, and until the
termination of this Indenture will not enter into, any agreement with any other
Person relating to each of the Trust Account, the Restricted Cash Account, each
Series Account or any Financial Assets credited thereto pursuant to which it has
agreed to comply with Entitlement Orders of such other Person and the Securities
Intermediary has not entered into, and until the termination of this Agreement
will not enter into, any agreement with the Issuer, the Seller, the Manager or
the Indenture Trustee purporting to limit or condition the obligation of the
Securities Intermediary to comply with Entitlement Orders as set forth in
Section 303(c) hereof.
(g) Except for the claims and interest of the Indenture Trustee and of
the Issuer hereunder in each of the Trust Account, the Restricted Cash Account
and each Series Account, to the best of its knowledge without independent
investigation, the Securities Intermediary knows of no claim to, or interest in,
any of the Trust Account, the Restricted Cash Account, any Series Account or in
any Financial Asset credited thereto. If any other Person asserts any Lien,
encumbrance or adverse claim (including any writ, garnishment, judgment, warrant
of attachment, execution or similar process) against any of the Trust Account,
the Restricted Cash Account, each Series Account or in any Financial Asset
credited thereto, the Securities Intermediary will promptly notify the Indenture
Trustee, the Manager, each Series Enhancer, each Interest Rate Hedge
Counterparty 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, each Series Account and in all Proceeds thereof.
Each of the Trust Account, the Restricted Cash Account and each Series Account
shall be in the name of and under the sole dominion and control of the Indenture
Trustee for the benefit of the Noteholders, each Interest Rate Hedge
Counterparty and each Series Enhancer, if any. The Indenture Trustee shall make
withdrawals and payments from each of the Trust Account, the
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Restricted Cash 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 Administrative
Agent.
(i) The Issuer shall not direct the Indenture Trustee to make any
investment of any funds or to sell any investment held in any of the Trust
Account, the Restricted Cash Account or any Series Account unless the security
interest of the Indenture Trustee in such account and any funds or investments
held therein shall continue to be perfected without any further action by any
Person.
(j) U.S. Bank National Association (including in its capacity as
Securities Intermediary) hereby agrees that any security interest it may have in
the Trust Account, the Restricted Cash Account and any Series Account or any
Security Entitlement credited thereto shall be subordinate to the security
interest created by this Indenture. The Financial Assets and other items
deposited to the Trust Account, the Restricted Cash Account and any Series
Account will not be subject to deduction, set-off, banker's lien, or any other
right in favor of any Person except as created pursuant to this Indenture. For
the sake of clarity, the fees and expenses of the Indenture Trustee shall be
payable solely pursuant to Section 302 or 806 of this Indenture and will not be
subject to deduction, set-off, bankers lien or other right of the Indenture
Trustee.
Section 304. Reports to Noteholders. The Indenture Trustee shall, make
available to each Noteholder, the Administrative Agent, each Interest Rate Hedge
Counterparty and each Series Enhancer, a copy of all reports, financial
statements and notices received by the Indenture Trustee pursuant to the
Contribution and Sale Agreement or the Management Agreement, by posting copies
thereof on its password-protected website (xxx.xxxxxx.xxx/xxx) and shall notify
the Administrative Agent, each Noteholder, each Interest Rate Hedge
Counterparty, and each Series Enhancer by e-mail when such notices or reports
are available.
Section 305. Records. The Indenture Trustee shall cause to be kept and
maintained customary records pertaining to the Trust Account, the Restricted
Cash Account and each Series Account and all receipts and disbursements
therefrom. The Indenture Trustee shall deliver monthly an accounting thereof in
the form of a trust statement to the Issuer, the Seller, the Administrative
Agent and the Manager, each Series Enhancer and each Interest Rate Hedge
Counterparty.
Section 306. Restricted Cash Account. (a) The Issuer shall establish
on or prior to the Initial Closing Date, and shall maintain so long as any
Outstanding Obligation remains unpaid, an Eligible Account in the name of the
Issuer with the Indenture Trustee which shall be designated as the Restricted
Cash Account, which account shall be held by the Indenture Trustee for the
benefit of the Noteholders of all Series of Notes and each Series Enhancer
pursuant to the terms of this Indenture and the related Supplements. The
Restricted Cash Account shall only be relocated to another financial institution
in accordance with the express provisions of Section 303(d) hereof. On each
Closing Date, the Issuer will deposit, or cause to be deposited, the Restricted
Cash Amount in the Restricted Cash Account and thereafter amounts shall be
deposited in the Restricted Cash Account in accordance with Section 302 of this
Indenture. Any and all monies on deposit in the Restricted Cash Account shall be
invested in Eligible Investments in accordance with this Indenture and shall be
distributed in accordance with this Section 306.
(b) On each Determination Date, the Indenture Trustee shall, in
accordance with the Manager Report (or, in the absence of any Manager Report, in
accordance with written instructions from the Administrative Agent), withdraw
from the Restricted Cash Account and deposit into the Series Account for each
Series an amount equal to the Deficiency Amount (determined after giving effect
to all other deposits to the Series Account for such Series (other than funds
transferred from the Restricted Cash Account)) on or prior to such Determination
Date. Amounts transferred to the Series Account pursuant to
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the provisions of this Section 306(b) may only be used to pay amounts specified
in the definition of "Permitted Payment Date Withdrawals". If the amount on
deposit in the Restricted Cash Account on a Determination Date is not sufficient
to pay in full the aggregate Permitted Payment Date Withdrawals referred to in
this Section 306(b), then the amount of funds then available in the Restricted
Cash Account will be allocated among the various Series on a pro rata basis in
proportion to the amount of their respective Permitted Payment Date Withdrawals.
(c) On each Payment Date, the Indenture Trustee shall, in accordance
with the Manager Report (or, in the absence of any Manager Report, in accordance
with written instructions from the Administrative Agent), deposit in the Trust
Account for distribution in accordance with the terms of this Indenture the
excess, if any, of (A) the amounts then on deposit in the Restricted Cash
Account (after giving effect to any withdrawals therefrom on such Payment Date)
over (B) an amount equal to the Restricted Cash Amount for such Payment Date. On
the Legal Final Maturity Date for the Series with the latest Legal Final
Maturity Date, any remaining funds in the Restricted Cash Account shall be
deposited in the Trust Account and, subject to the limitations set forth in the
related Supplement, distributed in accordance with Section 302 of this Indenture
and the related Supplement.
Section 307. CUSIP Numbers. The Issuer in issuing the Notes may use
"CUSIP" numbers (if then generally in use), and, if so, the Indenture Trustee
shall use "CUSIP" numbers in notices of redemption as a convenience to
Noteholders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Notes or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Notes, and any such redemption
shall not be affected by any defect in or omission of such numbers. The Issuer
will promptly notify the Indenture Trustee of any change in the "CUSIP" numbers.
Section 308. No Claim. Indemnities payable to the Indenture Trustee,
the Manager, the Independent Director Provider, the Administrative Agent and any
other Person, shall be non-recourse to the Issuer and shall not constitute a
claim (as defined in Section 101(5) of the Bankruptcy Code) against the Issuer
or the Collateral in the event such amounts are not paid in accordance with
Section 302 or 806 of this Indenture.
Section 309. Compliance with Withholding Requirements. Notwithstanding
any other provision of this Indenture, the Indenture Trustee shall comply with
all United States federal income tax withholding requirements with respect to
payments to Noteholders of interest, original issue discount, or other amounts
that the Indenture Trustee reasonably believes are applicable under the Code.
The consent of Noteholders shall not be required for any such withholding.
Section 310. Tax Treatment of Notes. The Issuer has entered into this
Indenture, and the Notes will be issued, with the intention that, for United
States federal, state and local income, single business and franchise tax
purposes, the Notes will qualify as indebtedness. The Issuer and the Indenture
Trustee, by entering into this Indenture, and each Noteholder, 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.
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ARTICLE IV
COLLATERAL
Section 401. Collateral. (a) The Notes and all other Outstanding
Obligations shall be obligations of the Issuer as provided in Section 203
hereof. The Indenture Trustee, on behalf of the Noteholders, each Interest Rate
Hedge Counterparty and each Series Enhancer, if any, shall also have the benefit
of, and the Outstanding Obligations shall be secured by and be payable from, the
Issuer's right, title and interest in the Collateral. The income, payments and
proceeds of such Collateral shall be allocated to each such Person strictly in
accordance with the applicable payment priorities set forth in Section 302 or
Section 806 hereof.
(b) Notwithstanding anything contained in this Indenture to the
contrary, the Issuer expressly agrees that it shall remain liable under each of
its Contracts and Leases to observe and perform all the conditions and
obligations to be observed and performed by it thereunder and that it shall
perform all of its duties and obligations thereunder, all in accordance with and
pursuant to the terms and provisions of each such Contract or Lease, as the case
may be.
(c) The Indenture Trustee hereby acknowledges the appointment by the
Issuer of the Manager to service and administer the Collateral in accordance
with the provisions of the Management Agreement. So long as the Management
Agreement shall not have been terminated in accordance with its terms, the
Indenture Trustee hereby agrees to provide the Manager with such documentation,
and to take all such actions with respect to the Collateral as the Manager may
reasonably request in accordance with the express provisions of the Management
Agreement; provided, however, that the Indenture Trustee shall be entitled to
receive from the Manager reasonable compensation and cost reimbursement for any
such action. Until such time as the Management Agreement has been terminated in
accordance with its terms, the Manager, on behalf of the Issuer, shall continue
to collect all Accounts and payments on the Leases of the Managed Containers in
accordance with the provisions of the Management Agreement and deposit such
amounts into the Trust Account in accordance with the provisions of the
Management Agreement. Any Proceeds received directly by the Issuer in payment of
any Account or Leases with respect to, or in payment for or in respect of, any
of the Managed Containers or on account of any of the Contracts to which the
Issuer is a party shall be promptly deposited by the Issuer in precisely the
form received (with all necessary endorsements) in the Trust Account in
accordance with the provisions of the Management Agreement, and until so
deposited shall be deemed to be held in trust by the Issuer for the Indenture
Trustee and shall continue to be collateral security for all of the obligations
secured by this Indenture and shall not constitute payment thereof until applied
as hereinafter provided. If (i) an Event of Default has occurred, (ii) any Sale
of the Collateral pursuant to Section 816 hereof shall have occurred or (iii) a
Manager Default has occurred, the Issuer shall at the request of the Indenture
Trustee, acting with the consent of or at the direction of the Requisite Global
Majority, to the extent practicable, deliver to the Indenture Trustee (or such
other Person as the Indenture Trustee may direct) originals (or, to the extent
originals cannot be delivered, copies) of all other documents evidencing, and
relating to, the sale, lease and delivery of such Managed Containers and the
Issuer shall, to the extent practicable, deliver originals (or, to the extent
originals cannot be delivered, copies) of all other documents evidencing and
relating to, the performance of any labor, maintenance, remarketing or other
service which created such Accounts, including, without limitation, all original
orders, invoices and shipping receipts.
Section 402. Pro Rata Interest.
(a) Except as expressly provided for herein or in any Supplement, the
Notes of all Outstanding Series shall be equally and ratably entitled to the
benefits of this Indenture without preference, priority or distinction, all in
accordance with the terms and provisions of this Indenture and
22
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) If the conditions specified in Section 701 of this Indenture are
met with respect to such Series of Notes, the security interest, and all other
estate and rights granted by this Indenture with respect to such Series of Notes
shall cease and become null and void, and all of the property, rights, and
interest granted as security for the Notes of such Series shall revert to and
revest in the Issuer without any other act or formality whatsoever.
Section 403. Indenture Trustee's Appointment as Attorney-in-Fact.
(a) The Issuer hereby irrevocably constitutes and appoints the
Indenture Trustee, and any officer or agent thereof, with full power of
substitution, as its true and lawful attorney-in-fact with full irrevocable
power and authority in the place and stead of the Issuer and in the name of the
Issuer or in its own name, from time to time, for the purpose of carrying out
the terms of this Indenture, to take any and all appropriate action and to
execute and deliver any and all documents and instruments which may be necessary
or desirable to accomplish the purposes of this Indenture; provided, however,
that the Indenture Trustee has no obligation or duty to take such action or to
determine whether to perfect, file, record or maintain any perfected, filed or
recorded document or instrument (all of which the Issuer shall prepare, deliver
and instruct the Indenture Trustee to execute) in connection with the grant or
security interest in the Collateral hereunder.
(b) The Indenture Trustee shall not exercise the power of attorney or
any rights granted to the Indenture Trustee pursuant to this Section 403 unless
an Event of Default shall have occurred and then be continuing. The Issuer
hereby ratifies, to the extent permitted by law, all actions that said attorney
shall lawfully do, or cause to be done, by virtue hereof. The power of attorney
granted pursuant to this Section 403 is a power coupled with an interest and
shall be irrevocable until all Series of Notes are paid and performed in full.
(c) The powers conferred on the Indenture Trustee hereunder are solely
to protect the Indenture Trustee's interests in the Collateral and shall not
impose any duty upon it to exercise any such powers except as set forth herein.
The Indenture Trustee shall be accountable only for amounts that it actually
receives as a result of the exercise of such powers and neither it nor any of
its officers, directors, employees, agents or representatives shall be
responsible to the Issuer for any act or failure to act, except for its own
negligence or willful misconduct.
(d) The Issuer also authorizes (but does not obligate) the Indenture
Trustee to (i) so long as a Manager Default is continuing and a Manager
Termination Notice has been delivered in accordance with the terms of the
Management Agreement, communicate in its own name, or to direct any other
Person, including the Manager or a replacement Manager, to communicate with any
party to any Contract or Lease relating to a Managed Container and (ii) so long
as an Event of Default is continuing, and a Manager Termination Notice has been
delivered in accordance with the terms of the Management Agreement, execute in
connection with the sale of Collateral provided for in Article VIII hereof, any
endorsements, assignments or other instruments of conveyance or transfer with
respect to the Collateral.
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(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
the Requisite Global Majority, shall cause performance or compliance, or acting
at the direction of the Requisite Global Majority shall perform or comply, with
such agreement; provided, however, that the Indenture Trustee shall have no
obligation to so perform or comply if it has reasonable grounds to believe that
payment of its expenses and interest thereon (as set forth in the following
sentence) is not reasonably assured. The reasonable and documented expenses,
including reasonable and documented attorneys' fees and expenses, of the
Indenture Trustee incurred in connection with such performance or compliance,
shall be payable by the Issuer to the Indenture Trustee on demand and shall
constitute additional Outstanding Obligations secured hereby and shall be paid
in accordance with the provisions of Section 302 or Section 806 hereof.
Section 404. Release of Security Interest. The Indenture Trustee, at
the written direction of the Manager, shall release from the Lien of this
Indenture, any Managed Container and the Related Assets sold or transferred
pursuant to Section 606(a) hereof. In effectuating such release, the Indenture
Trustee shall be provided with and entitled to rely on: (A) so long as no Early
Amortization Event is then continuing, a written direction of the Manager (with
a copy to the Administrative Agent and each Series Enhancer, if any) identifying
each Managed Container or other items to be released from the Lien of this
Indenture in accordance with the provisions of this Section 404 accompanied by
an Asset Base Certificate, or (B) if an Early Amortization Event is then
continuing, all of the following: (i) the items set forth in (A), (ii) a
certificate from the Manager (with a copy to the Administrative Agent and each
Series Enhancer) stating that such release is in compliance with Sections 404
and 606(a) hereof and (iii) a written direction from the Administrative Agent
and each Series Enhancer approving such release. The Administrative Agent shall
provide such direction if the Administrative Agent has received the items
referred to in (B) above and the officers of the Administrative Agent who
regularly deal with the Manager in connection with the transactions contemplated
hereby do not have actual knowledge that such certificates are inaccurate in any
significant manner.
The Indenture Trustee will, promptly upon receipt of such certificate
from the Manager and at the Issuer's expense, execute and deliver to the Issuer,
the Seller or the Manager, as appropriate, each Series Enhancer, each Interest
Rate Hedge Counterparty and the Administrative Agent, a non-recourse certificate
of release substantially in the form of Exhibit A hereto and such additional
documents and instruments as that Person may reasonably request to evidence the
termination and release from the Lien of this Indenture of such Managed
Container and the Related Assets.
Section 405. Administration of Collateral. (a) The Indenture Trustee
shall as promptly as practicable notify the Noteholders, each Series Enhancer,
each Interest Rate Hedge Counterparty and the Administrative Agent of any
Manager Default of which a Corporate Trust Officer has actual knowledge. If a
Manager Default shall have occurred and then be continuing, the Indenture
Trustee, at the written direction of the Requisite Global Majority, shall
deliver to the Manager (with a copy to the Administrative Agent, each Series
Enhancer, each Interest Rate Hedge Counterparty and each Rating Agency) a
Manager Termination Notice terminating the Manager of its responsibilities in
accordance with the terms of the Management Agreement. Pursuant to the
Administration Agreement, the Administrative Agent shall seek to appoint a
replacement Manager acceptable to the Requisite Global Majority. If the
Administrative Agent is unable to locate and qualify a replacement Manager
acceptable to the Requisite Global Majority within sixty (60) days after the
date of delivery of the Manager Termination Notice, then the Indenture Trustee
may (and shall, upon the direction of the Requisite Global Majority) appoint, or
petition a court of competent jurisdiction to appoint, a company acceptable to
the Requisite Global Majority, having a net worth of not less than $5,000,000
and whose regular business includes equipment leasing or servicing, as the
successor to the Manager of all or any part of the responsibilities, duties or
liabilities of the Manager under the Management Agreement and the other
Transaction Documents to which it is a party. The Manager shall continue to
fulfill its duties and
24
responsibilities as Manager until such time as its replacement is appointed and
has assumed such responsibilities. The replaced Manager shall not be entitled to
receive any compensation for any period after the effective date of such
replacement, but shall be entitled to receive compensation for services rendered
through the effective date of such replacement except to the extent that it is
unable to fulfill such duties pending the appointment of a replacement Manager.
If the Manager is unable to fulfill such duties pending the appointment of a
replacement Manager, the Administrative Agent shall take such actions, which it
is reasonably capable of performing and as the Requisite Global Majority shall
direct to aid in the transition of the Manager; provided, however, that no
provisions of this Indenture or the Administration Agreement shall require the
Administrative Agent to expend or risk its own funds or otherwise incur any
financial liability in the performance of its duties hereunder or under the
Administration Agreement, or in the exercise of any of its rights, powers or
duties, if the Administrative Agent shall have reasonable grounds for believing
that timely repayment in full of such funds or adequate security or indemnity
against such risk or liability is not reasonably assured after taking into
account the reimbursement provisions set forth in Section 302 or Section 806, as
applicable. All reimbursements to the Administrative Agent shall (unless the
Requisite Global Majority has otherwise agreed in writing to indemnify the
Administrative Agent) be payable on the immediately succeeding Payment Date
pursuant to the provisions of Section 302 or Section 806, as applicable, hereof.
Each Noteholder, the Indenture Trustee, each Series Enhancer and each Interest
Rate Hedge Counterparty shall, by accepting the benefits of this Indenture, be
deemed to have agreed that the duties of the Administrative Agent are not to be
construed as those of a replacement Manager. In connection with the appointment
of a replacement Manager, the Indenture Trustee or Administrative Agent may,
with the written consent of the Requisite Global Majority, make such
arrangements for the compensation of such replacement Manager out of Collections
as the Indenture Trustee, the Administrative Agent and such replacement Manager
shall agree; provided, however, that no such revised compensation shall be in
excess of the Management Fees permitted the Manager under the Management
Agreement and the arrangement for reimbursement of expenses shall be no more
favorable than that set forth in the Management Agreement unless the Requisite
Global Majority shall approve such higher amounts; provided, further, that in no
event shall any of the Indenture Trustee, any Series Enhancer, any Interest Rate
Hedge Counterparty or the Administrative Agent be liable to any replacement
Manager for the Management Fees or any additional amounts (including expenses
and indemnifications) payable to such replacement Manager, either pursuant to
the Management Agreement or otherwise. The Indenture Trustee and such successor
shall take such action, consistent with the Management Agreement, as shall be
necessary to effectuate any such succession including exercising the power of
attorney granted by the Manager pursuant to Section 9.4 of the Management
Agreement.
(b) So long as a Manager Default has occurred and a Manager
Termination Notice has been delivered in accordance with the terms of the
Management Agreement, the Indenture Trustee may and shall, if directed in
writing by the Requisite Global Majority, after first notifying the Issuer of
its intention to do so, notify Account Debtors of the Issuer (and the Issuer
hereby agrees to provide the Indenture Trustee all commercially reasonable
information to identify and locate such Account Debtors), parties to the
Contracts of the Issuer, obligors in respect of Instruments of the Issuer and
obligors in respect of Chattel Paper of the Issuer that the Accounts and the
right, title and interest of the Issuer in and under such Contracts,
Instruments, and Chattel Paper (to the extent related to the Managed Containers)
have been pledged to Indenture Trustee and that payments shall be made directly
to the Indenture Trustee or the Trust Account; provided that a replacement
Manager appointed pursuant to this Section 405 shall unless otherwise directed
by the Requisite Global Majority exercise all of the foregoing rights, and that
pending appointment of such replacement Manager, the then current Manager shall,
unless otherwise directed by the Requisite Global Majority, be permitted to
exercise such rights until the replacement Manager assumes the responsibility of
the Manager. Upon the request of the Requisite Global Majority, the Issuer
shall, or shall direct Manager to, so notify such Account Debtors, parties to
such Contracts, obligors in respect of such Instruments and obligors in respect
of such Chattel Paper. So long as a Manager Default has occurred and a Manager
Termination Notice has been delivered in accordance with
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the terms of the Management Agreement, the Indenture Trustee shall at the
written direction of the Requisite Global Majority communicate with such Account
Debtors, parties to such Contracts, obligors in respect of such Instruments and
obligors in respect of such Chattel Paper to verify with such parties, the
existence, amount and terms of any such Accounts, Contracts, Instruments or
Chattel Paper.
(c) Upon a Corporate Trust Officer's obtaining actual knowledge or the
actual receipt of written notice by the Indenture Trustee that any repurchase
obligations of the Seller under Section 3.03 of the Contribution and Sale
Agreement have arisen, the Indenture Trustee shall notify each Series Enhancer,
each Rating Agency, each Interest Rate Hedge Counterparty and the Administrative
Agent of such event and shall enforce such repurchase obligations at the written
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 Managed Container so long as such lessee is not
in default under the Lease therefor.
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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
allocable to Noteholders of such Series pursuant to this Indenture and the
related Supplement, (ii) funds on deposit in the Trust Account (subject to the
priorities set forth in Sections 302 and 806 hereof) and the Restricted Cash
Account and (iii) funds on deposit in any Series Account for such Series, or
payable with respect to any Series Enhancement for such Series. Each Noteholder,
by acceptance of its Notes, (a) acknowledges and agrees that (except as
expressly provided herein and in a Supplement entered into in accordance with
Section 1006(b) hereof) the Noteholders of a Series or Class shall not have any
interest in any Series Account or Series Enhancement for the benefit of any
other Series or Class and (b) ratifies and confirms the terms of this Indenture
and the Transaction Documents executed in connection with such Series.
Section 502. Collections and Allocations. With respect to each
Collection Period, Collections on deposit in the Trust Account will be allocated
to each Series then Outstanding in accordance with Article III of this Indenture
and the Supplements.
Section 503. Determination of Requisite Global Majority. A Requisite
Global Majority shall exist with respect to any action proposed to be taken
pursuant to the terms of this Indenture or any Supplement if (a) the Control
Party or Control Parties representing more than fifty percent (50%) of the sum
of the Existing Commitments of all Series of Outstanding Notes shall approve or
direct such proposed action (in making such a determination, each Control Party
shall be deemed to have voted the entire Existing Commitment of the related
Series in favor of, or in opposition to, such proposed action, as the case may
be) and (b) unless Control Parties representing more than sixty-six and
two-thirds percent (66 2/3%) of the sum of the Existing Commitments of all
Series shall have approved or directed such proposed action (in making such a
determination, each Control Party shall be deemed to have voted the entire
Existing Commitment of the related Series in favor of, or in opposition to, such
proposed action, as the case may be), each Series Enhancer which is then a
Control Party for any Series of Outstanding Notes shall have also approved or
directed such proposed action. The Indenture Trustee shall be responsible for
identifying the 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 Outstanding Obligations have not been paid or
performed, the Issuer shall observe each of the following covenants:
Section 601. Payment of Principal and Interest; Payment of Taxes. (a)
The Issuer will duly and punctually pay the principal of, and interest, on the
Notes in accordance with the terms of the Notes, this Indenture and the related
Supplement.
(b) The Issuer will take all actions as are necessary to insure that
all taxes, assessments and governmental levies that are payable by the Issuer
are paid when due except (i) such as are contested in good faith and by
appropriate proceedings and (ii) if the failure to make such payment is not
adverse in any material respect to the Noteholders.
Section 602. Maintenance of Office. As of the Initial Closing Date,
the Issuer's only "place of business" within the meaning of Section 9-307 of the
UCC is located at its address set forth in Section 1307. The Issuer shall not
establish a new place of business or location for its chief executive office or
change its jurisdiction of formation unless (i) the Issuer shall provide each of
the Indenture Trustee, each Rating Agency, the Administrative Agent, each
Interest Rate Hedge Counterparty and each Series Enhancer not less than thirty
(30) days' prior written notice of its intention so to do, clearly describing
such new location and providing such other information in connection therewith
as the Indenture Trustee, the Administrative Agent, each Interest Rate Hedge
Counterparty or each Series Enhancer may reasonably request, (ii) not less than
fifteen (15) days prior to the effective date of such relocation, the Issuer
shall have taken, at its own cost, all action necessary so that such change of
location does not impair the security interest of the Indenture Trustee in the
Collateral, or the perfection of the sale or contribution of the Containers to
the Issuer, and shall have delivered to the Indenture Trustee, the
Administrative Agent, each Interest Rate Hedge Counterparty and each Series
Enhancer copies of all filings required in connection therewith and (iii) the
Issuer has delivered to the Indenture Trustee, the Administrative Agent, each
Series Enhancer, each Eligible Interest Rate Hedge Counterparty and each Rating
Agency, one or more Opinions of Counsel satisfactory to the Requisite Global
Majority, stating that, after giving effect to such change of location: (A) the
Seller and the Issuer will not, pursuant to applicable Insolvency Law, be
substantively consolidated in the event of any Insolvency Proceeding by, or
against, the Seller, (B) under applicable Insolvency Law, the transfers of
Transferred Assets made in accordance with the terms of the Transaction
Documents will be treated as a "true sale" in the event of any Insolvency
Proceeding by, or against, the Seller and (C) either (1) in the opinion of such
counsel, all registration of charges, financing statements, or other documents
of similar import, and amendments thereto have been executed (if applicable) and
filed that are necessary to perfect the interest of the Issuer and the Indenture
Trustee in the Transferred Assets, or (2) stating that, in the opinion of such
counsel, no such action shall be necessary to perfect such interest; provided
that the opinions required in this Section 602(iii)(A) and (B) shall not be
required unless the Issuer establishes a new place of business outside of the
United States or a location for its chief executive office outside of the United
States or changes its jurisdiction of formation to a location outside of the
United States.
Section 603. Corporate Existence. The Issuer will keep in full effect
its existence, rights and franchises as a limited liability company organized
under the laws of the State of Delaware, and will obtain and preserve its
qualification in each jurisdiction in which such qualification is necessary to
protect the validity and enforceability of this Indenture, any Supplements and
the Notes except where the failure to obtain or preserve such qualification is
not reasonably expected to result in a Material Adverse Change.
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Section 604. Protection of Collateral. The Issuer will from time to
time execute (if applicable) and deliver all financing statements, all
amendments thereto and continuation statements, instruments of further assurance
and other instruments, and will, upon the reasonable request of the Manager, the
Indenture Trustee, the Administrative Agent, any Interest Rate Hedge
Counterparty or any Series Enhancer, take such other action necessary or
advisable to:
(a) maintain or preserve the Lien of this Indenture (and the priority
thereof) including executing and filing such documents as may be required under
any international convention for the perfection of interests in Managed
Containers that may be adopted subsequent to the date of this Indenture;
(b) perfect, publish notice of, and protect the validity of the
security interest in the Collateral created pursuant to this Indenture;
(c) enforce any of the items of the Collateral;
(d) preserve and defend its right, title and interest to the
Collateral and the rights of the Indenture Trustee in such Collateral against
the claims of all Persons (other than the Noteholders or any Person claiming
through the Noteholders); and
(e) pay any and all taxes levied or assessed upon all or any part of
the Collateral, except such as are contested in good faith and by appropriate
proceedings or where the failure to effect such payment is not adverse in any
material respect to the Noteholders.
In furtherance of clauses (b) and (c) above, the Issuer hereby agrees that if at
any time subsequent to a Closing Date there is a change in Applicable Law (or a
change in the interpretation of Applicable Law as in effect on such Closing
Date) which, in the reasonable judgment of the Requisite Global Majority, may
affect the perfection of the Indenture Trustee's security interest in the
Collateral, then the Issuer shall, within thirty (30) days after request from
the Requisite Global Majority, furnish to the Indenture Trustee, the
Administrative Agent, each Rating Agency and each Series Enhancer, an Opinion of
Counsel either (i) stating that, in the opinion of such counsel, such action has
been taken with respect to the recording, filing, recording and refiling of this
Indenture, any Supplements hereto and any other requisite documents, and with
respect to the filing of any financing statements and continuation statements,
as are necessary to maintain the Lien created by this Indenture and reciting the
details of such action, or (ii) stating that, in the opinion of such counsel, no
such action is necessary to maintain such Lien. Such Opinion of Counsel shall
also describe the recording, filing, re-recording and refiling of this
Indenture, any Supplements hereto and any other requisite documents and the
execution and filing of any financing statements and continuation statements
that, in the opinion of such counsel, are required to maintain the lien and
security interest of this Indenture.
Section 605. Performance of Obligations.
(a) Except as otherwise permitted by this Indenture, the Management
Agreement or the Contribution and Sale Agreement, the Issuer will not take, or
fail to take, any action, and will use its best efforts not to permit any action
to be taken by others, which would release any Person from any of such Person's
covenants or obligations under any agreement or instrument included in the
Collateral, or which would result in the amendment, hypothecation,
subordination, termination or discharge of, or impair the validity or
effectiveness of, any such agreement or instrument; provided that, nothing in
this Indenture shall prohibit the Issuer, or the Manager on the Issuer's behalf,
from renegotiating, amending or consenting to waivers to Leases in accordance
with the terms of the Management Agreement.
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(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 Counterparty 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 such 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:
(a) at any time sell, transfer, exchange or otherwise dispose of any
of the Collateral, except as follows:
(i) in connection with a sale, conveyance or transfer pursuant to
the provisions of Section 612 or Section 816 hereof; or
(ii) in connection with a substitution or repurchase of Managed
Containers as permitted or required in accordance with the terms of
the Contribution and Sale Agreement; or
(iii) sales of Managed Containers to unaffiliated third parties,
and to the extent that such sales are on terms and conditions that
would be obtained in an arms-length transaction, to Affiliates,
regardless of whether such sales are considered to have been made in
the ordinary course of business, that will not result in an Asset Base
Deficiency; or
(iv) sales of Managed Containers to unaffiliated third parties in
the ordinary course of business and consistent with past practices of
the Manager, regardless of the Sales Proceeds realized from such
sales; or
(v) in connection with a Casualty Loss.
Notwithstanding the foregoing limitation of this Section 606(a), sales
of Managed Containers shall be permitted at such other times and in such other
amounts as the Indenture Trustee (acting at the direction of the Requisite
Global Majority) shall permit.
Notwithstanding anything to the contrary, during the continuation of
an Early Amortization Event, the Issuer shall not sell all, or substantially
all, of the Managed Containers without the consent of the Requisite Global
Majority if an Asset Base Deficiency shall have occurred and be continuing or
would result from such proposed sale.
(b) claim any credit on, make any deduction from the principal,
premium, if any, or interest payable in respect of the Notes (other than amounts
properly withheld from such payments under any Applicable Law) or assert any
claim against any present or former Noteholder by reason of the payment of any
taxes levied or assessed upon any of the Collateral; or
(c) release any item from the Collateral, except as permitted pursuant
to the terms of a Transaction Document.
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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 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) not commingle its funds with any other Person (except for any
commingling of Collections which may occur prior to the identification and
segregation of such amounts in accordance with the terms of the Management
Agreement) and maintain its bank accounts separate from those of any other
Person, (4) maintain separate financial statements, showing its assets and
liabilities separate and apart from those of any other Person, (5) 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 commercially reasonable and on the
same terms as would be available in an arm's length transaction with a Person
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 organizational formalities.
(b) Notwithstanding any provision of law which otherwise empowers the
Issuer, the Issuer shall not (1) hold itself out as being liable for the debts
of any other Person, (2) act other than in its limited liability company name
and through its duly authorized officers, managers or agents, (3) engage in any
joint activity or transaction of any kind with or for the benefit of any
Affiliate including any of the transactions described in Section 611 hereof,
except (i) payment of lawful distributions to its members and (ii) the
execution, delivery and performance of the Management Agreement and any Note
Purchase Agreement, (4) enter into any transaction described in Section 610
(except pursuant to this Indenture) other than trade payables and expense
accruals incurred in the ordinary course of its business or (5) take any other
action that would be inconsistent with maintaining the separate legal identity
of the Issuer or engage in any other activity not contemplated by this Indenture
or other Transaction 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 to the extent
that such Lien can be perfected pursuant to Applicable Law.
Section 610. Other Debt. The Issuer shall not contract for, create,
incur, assume or suffer to exist any Indebtedness of the Issuer other than (i)
the Notes issued pursuant to this Indenture or any Supplement, (ii) any
Management Fee, Manager Advances and all other amounts payable pursuant to the
provisions of the Management Agreement, (iii) any obligation (including a
deferred purchase price note and any normal warranty) arising in connection with
a purchase or sale of Containers permitted by the Transaction Documents, but
only to the extent of the time limit contemplated by Section 3.01(ii) of the
Contribution and Sale Agreement, (iv) the Subordinated Note, (v) any
Indebtedness (including any Interest Rate Hedge Agreement or Currency Hedge
Agreement) that is permitted or required pursuant to the terms of any
Transaction Document, and (vi) 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.
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Section 611. Guarantees, Loans, Advances and Other Liabilities. Except
for investments in Eligible Investments, the Issuer will not make any loan,
advance or credit to, or guarantee (directly or indirectly or by an instrument
having the effect of assuring another's payment or performance on any obligation
or capability of so doing, or otherwise), endorse (except for the endorsement of
checks for collection or deposit) or otherwise become contingently liable,
directly or indirectly, in connection with the obligations, stock or dividends
of, or own, purchase, repurchase or acquire (or agree contingently to do so) any
stock, obligations or securities of, or any other interest in, or make any
capital contribution to, any other Person. However, the preceding sentence shall
not limit the terms of any Note Purchase Agreement or prevent the execution,
delivery and performance of any Note Purchase Agreement by the Issuer.
Section 612. Consolidation, Merger and Sale of Assets. (a) The Issuer
shall not consolidate with or merge with, or into, any other Person or sell,
convey, transfer or lease any of its assets, whether in a single transaction or
a series of transactions, to any Person except for (i) any such sale, conveyance
or transfer contemplated in this Indenture or any Supplement or the Management
Agreement and (ii) the leasing or sale of the Managed Containers in accordance
with the terms of the Management Agreement.
(b) The obligations of the Issuer hereunder shall not be assignable
nor shall any Person succeed to the obligations of the Issuer hereunder except
in each case in accordance with the provisions of this Indenture.
Section 613. Other Agreements; Amendment of Transaction Documents. (a)
The Issuer will not after the date of the issuance of any Notes enter into, or
become a party to, any agreements or instruments other than the Transaction
Documents and any other agreement(s) contemplated by the terms of the
Transaction Documents, including, without limitation, (i) any agreement(s) for
disposition of the Transferred Assets permitted by Sections 606, 804 or 816
hereof and (ii) any agreement(s) for the sale, repurchase, lease or re-lease of
a Managed Container made in accordance with the provisions of the Contribution
and Sale Agreement and the Management Agreement.
(b) The Issuer will not amend, modify or waive any provision of any
Transaction Document, or give any approval or consent or permission provided for
therein, except in accordance with the express terms of such Transaction
Document.
Section 614. Charter Documents. The Issuer will not amend or modify
(a) its certificate of formation or (b) Section 4.1, 8.3, 8.4, 16.1, 16.2 or
16.3 of its limited liability company agreement without (i) the prior written
consent of the Requisite Global Majority, and (ii) satisfaction of the Rating
Agency Condition.
Section 615. Capital Expenditures. The Issuer will not make any
expenditure (by long term or operating lease or otherwise) for capital assets
(both realty and personalty), except for (a) acquisition of additional Managed
Containers from the Seller in accordance with the terms of the Contribution and
Sale Agreement or (b) capital improvements to the Managed Containers made in the
ordinary course of its business and in accordance with the terms of the
Management Agreement.
Section 616. Permitted Activities; Compliance with Organizational
Documents. The Issuer will not engage in any activity or enter into any
transaction except for those activities that are specified in its organizational
documents or that are contemplated by a Transaction Document. The Issuer will
observe all organizational and managerial procedures required by its
organizational documents and applicable law. The Issuer shall (i) keep complete
minutes of the meetings of the managers and/or members of the Issuer and (ii)
continuously maintain the resolutions, agreements and other instruments
underlying the transaction contemplated by the Transaction Documents.
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Section 617. Investment Company Act. The Issuer will conduct its
operations in a manner which will not subject it to registration as an
"investment company" under the Investment Company Act of 1940, as amended.
Section 618. Payments of Collateral. If the Issuer shall receive from
any Person any payments with respect to the Collateral (to the extent such
Collateral has not been released from the Lien of this Indenture), the Issuer
shall receive such payment in trust for the Indenture Trustee, as secured party
hereunder, and subject to the Indenture Trustee's security interest and shall
deposit such payment in the Trust Account as required under this Indenture.
Section 619. Notices. The Issuer shall notify the Indenture Trustee in
writing of any of the following promptly upon its learning of the occurrence
thereof, describing the same and, if applicable, the steps being taken by the
Person(s) affected with respect thereto:
(a) Default. The occurrence of an Event of Default;
(b) Litigation. The institution of any litigation, arbitration
proceeding or Proceeding before any Governmental Authority which reasonably will
be expected to result in a Material Adverse Change;
(c) Material Adverse Change. The occurrence of a Material Adverse
Change; or
(d) Other Events. The occurrence of an Early Amortization Event or
such other events that would, with the giving of notice or the passage of time
or both, constitute an Event of Default.
Section 620. Books and Records. The Issuer shall maintain complete and
accurate books and records in which full and correct entries in conformity with
GAAP shall be made of all dealings and transactions in relation to its business
and activities. In connection with each transfer of Transferred Assets to the
Issuer, the Issuer shall report, or cause to be reported, on its financial
records the transfer of the Transferred Assets as a purchase or capital
contribution (if applicable) under GAAP. The Issuer will ensure that any
consolidated financial statements of TAL and Container Holdings note that Issuer
is a bankruptcy remote special purpose subsidiary established to obtain
securitized financing.
Section 621. Subsidiaries. The Issuer shall not create any
Subsidiaries.
Section 622. Investments. The Issuer shall not make or permit to exist
any Investment in any Person except for Investments in Eligible Investments made
in accordance with the terms of this Indenture.
Section 623. Use of Proceeds. (a) The Issuer shall use the proceeds of
the Notes only for (i) the purchase of Containers and Related Assets and (ii)
other general company purposes including the distribution of dividends,
repayment of debt and paying costs relating to the issuance of the Notes and any
other purposes contemplated by Section 302.
(b) The Issuer shall not permit any proceeds of the Notes to be used,
either directly or indirectly, for the purpose, whether immediate, incidental or
ultimate, of "purchasing or carrying any margin stock" within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System, as amended
from time to time, and shall furnish to each Noteholder, upon its request, a
statement in conformity with the requirements of Regulation U.
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Section 624. Asset Base Certificate. The Issuer shall prepare and
deliver to the Indenture Trustee on or before each Determination Date, an Asset
Base Certificate as of the end of the immediately preceding fiscal month of the
Issuer.
Section 625. Financial Statements. The Issuer shall deliver to the
Indenture Trustee the following financial statements prepared in accordance with
GAAP (subject to the limitations set forth below): (a) the quarterly financial
statements of the Issuer within sixty (60) days after the end of each fiscal
quarter ending on or after December 31, 2005; (b) annual unaudited financial
statements of the Issuer within one hundred and twenty (120) days after the end
of each fiscal year ending on or after December 31, 2005; (c) annual audited
consolidated and unaudited consolidating financial statements of Container
Holdings and its consolidated subsidiaries together with the report of its
Independent Accountants, within one hundred fifty days (150) days after the end
of each fiscal year ending on or after December 31, 2005 and (d) a report
addressed to the manager of the Issuer, to the effect that such firm of
accountants has audited the books and records of Container Holdings, and issued
its report in connection with the audit report on the consolidated financial
statements of Container Holdings and specifying the results of the application
of such agreed upon procedures, as the Administrative Agent shall reasonably
agree from time to time, relating to the objectives specified on Exhibit D to
the Management Agreement. All such financial statements shall be prepared in
accordance with GAAP, subject to, in the case of unaudited financial statements,
the absence of footnotes, and in the case of the quarterly financial statements,
the absence of year-end adjustments. 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 626. UNIDROIT Convention. The Issuer shall comply with the
terms and provisions of the UNIDROIT Convention or any other internationally
recognized system for recording interests in or liens against shipping
containers at the time that such convention is adopted.
Section 627. Other Information. For so long as any of the Notes are
"restricted securities" within the meaning of Rule 144(a)(3) under the
Securities Act and the Issuer is not subject to Section 13 or 15(d) of the
Exchange Act, the Issuer will, provide or cause to be provided to any Noteholder
and any prospective purchaser thereof designated by such a Noteholder, upon the
request of such Noteholder or prospective purchaser, the information required to
be provided to such Noteholder or prospective purchaser by Rule 144A(d)(4) under
the Securities Act.
Section 628. Hedging Requirement. On the Initial Closing Date and
thereafter within thirty (30) days after the end of each calendar quarter
thereafter, the Issuer will enter into, and maintain for so long as any Notes or
other obligations under the Transaction Documents remain unpaid, one or more
Interest Rate Hedge Agreements with respect to a minimum of seventy percent
(70%) of that portion of the Aggregate Note Principal Balance attributable to
(i) those Eligible Containers that are then subject to a Lease that has a then
remaining term of more than three years and (ii) without duplication of the
Leases referred to in clause (i), those Eligible Containers that are then
subject to a Finance Lease, all of which Interest Rate Hedge Agreements shall
have an aggregate notional principal amount required by the formula set forth in
Exhibit F hereto and have a projected amortization schedule as set forth in such
Exhibit.
(a) If the Issuer, or the Manager, on behalf of the Issuer, fails to
comply with the Hedging Requirement, the Requisite Global Majority shall have
the right, in its sole discretion and at the expense of the Issuer if necessary
(as determined in the sole discretion of the Requisite Global Majority), to
direct the Indenture Trustee, to enter into or maintain one or more Interest
Rate Hedge Agreements selected by the Requisite Global Majority (in its sole
discretion) on behalf of the Issuer such that, after
34
giving effect to such action, the Issuer will be in compliance with the Hedging
Requirement. In the event the Requisite Global Majority determines to direct the
Indenture Trustee to enter into or maintain an Interest Rate Hedge Agreement on
the Issuer's behalf, the Requisite Global Majority shall promptly send a copy of
any such agreement to the Issuer and may provide the Indenture Trustee and
Manager on behalf of the Issuer with a written direction to deposit in the Trust
Account certain amounts to reimburse the Requisite Global Majority or a third
party for the costs of such Interest Rate Hedge Agreement.
(b) If at any time while the Notes are Outstanding an Interest Rate
Hedge Counterparty ceases to be an Eligible Interest Rate Hedge Counterparty,
the Issuer shall within sixty (60) days after it obtains knowledge of such
event, either (i) replace the non-conforming Interest Rate Hedge Counterparty
with an Eligible Interest Rate Hedge Counterparty or (ii) require the
non-conforming Interest Rate Hedge Counterparty to deliver a letter of credit or
provide alternative credit support in order to support its obligations under the
Interest Rate Hedge Agreement, as Issuer and such non-conforming Interest Rate
Hedge Counterparty may agree, subject to the consent of the Requisite Global
Majority and the prior written confirmation that the Rating Agency Condition has
been satisfied.
(c) All payments received from all such Interest Rate Hedge Agreements
shall be deposited directly into the Trust Account.
Section 629. Ownership of Issuer. At all times after the Initial
Closing Date, all of the issued and outstanding membership interests in the
Issuer shall be owned by TAL.
Section 630. Officer and Director Insurance. The Issuer shall
maintain, or cause to be maintained, directors' and officers' insurance in an
amount equal to a minimum of least Thirty Million Dollars ($30,000,000) per
occurrence and with deductibles per occurrence not to exceed One Million Dollars
($1,000,000), which insurance policy or policies shall include a provision
specifying that the Indenture Trustee shall receive not less than thirty (30)
days prior notice of the termination or non-renewal of such policy.
Section 631. Tax Election of the Issuer. The Issuer will not elect or
agree to elect to be treated as an association taxable as a corporation for
United States federal income tax or any State income or franchise tax purposes.
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ARTICLE VII
DISCHARGE OF INDENTURE; PREPAYMENTS
Section 701. Full Discharge. Upon payment in full of all Outstanding
Obligations, the Indenture Trustee shall execute and deliver to the Issuer such
deeds or other instruments as shall be requisite to evidence the satisfaction
and discharge of this Indenture and the security hereby created with respect to
each Series, and to release the Issuer from its covenants contained in this
Indenture and the related Supplement with respect to each such Series. In
connection with the satisfaction and discharge of this Indenture, the Indenture
Trustee shall be provided with, and shall be entitled to conclusively rely upon,
an Opinion of Counsel stating that all conditions precedent specified in the
Indenture to such satisfaction and discharge have been satisfied.
Section 702. Prepayment of Notes.
(a) Mandatory Prepayments. Unless otherwise specified in a Supplement,
the Issuer shall be required to prepay the then unpaid principal balance of all,
or a portion of, one or more Series of Notes then Outstanding if, on any Payment
Date, an Asset Base Deficiency exists, and has not otherwise been cured by such
date through the acquisition of additional Eligible Containers or otherwise.
Such Prepayment (a "Supplemental Principal Payment") shall be in the amount of
such Asset Base Deficiency and shall be paid in accordance with the priority of
payments set forth in Section 302 hereof. The calculations referred to herein
shall be evidenced by the Asset Base Certificate received by the Indenture
Trustee on any Determination Date. On each Payment Date, any Supplemental
Principal Payment Amount then due and owing, shall be applied first to each
Series of Warehouse Notes then Outstanding on a pro rata basis, in proportion to
the then unpaid principal balance of such Warehouse Notes, until the principal
balances of all Warehouse Notes have been paid in full, and then to all Series
of Term Notes then Outstanding on a pro rata basis, in proportion to the then
unpaid principal balance of each such Series of Term Notes. Notwithstanding the
foregoing, if sufficient funds are not available to allow the Issuer to prepay
the principal balance of the Warehouse Notes in an amount equal to the Asset
Base Deficiency on such Payment Date, then the amount of any Supplemental
Principal Payment Amount to be actually paid on such Payment Date shall be
allocated among all Series of Notes then Outstanding (including the Term Notes)
on a pro rata basis, in proportion to the then unpaid principal balance of such
Notes.
(b) Voluntary Prepayments. So long as no Early Amortization Event is
then continuing, the Issuer may, from time to time, make an optional Prepayment
of principal of the Notes of a Series at the times, in the amounts and subject
to the conditions and limitations set forth in the Supplement for the Series of
Notes to be prepaid. If an Early Amortization Event is then continuing, all
optional Prepayments made in accordance with the provisions of this Section
702(b) shall be applied in accordance with the applicable provisions of Section
302 hereof. The Issuer shall promptly confirm any telephonic notice of
prepayment in writing. Any optional Prepayment of principal made by the Issuer
pursuant to this Section 702(b) shall also include accrued interest to the date
of the prepayment on the amount being prepaid. Any optional Prepayment made
pursuant to the provisions of this Section 702(b) shall be accomplished by a
deposit of funds directly into the Trust Account and, unless otherwise specified
in the Supplement for any Series of Notes then Outstanding, may be applied by
the Issuer to reduce the unpaid principal balance of one or more Series of Notes
then Outstanding, such Series to be selected in the sole discretion of the
Issuer. Notice of any voluntary prepayment of a Series of Term Notes to be made
by the Issuer pursuant to the provisions of this Section 702(b) shall be given
by the Issuer to the Indenture Trustee and, if applicable, the Noteholders of
the Series of Notes to be prepaid, not later than the third (3rd) Business Day
(or such longer period of time as specified in the related Supplement for a
Series), prior to the date of such prepayment and not earlier than the Payment
Date immediately preceding the date of such Prepayment.
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(c) Adjustment of Prospective Minimum Principal Payment Amounts and
Scheduled Principal Payment Amounts. In the event that the Issuer makes a
prepayment of less than all of the aggregate unpaid principal balance of any
Series of Term Notes in accordance with the provisions of Section 702(a) or
Section 702(b), then the Issuer shall promptly (but in any event within five (5)
Business Days after the date on which such Prepayment is made) thereafter
recalculate (subject to verification by the Administrative Agent) the Minimum
Principal Payment Amount and Scheduled Principal Payment Amount for each future
Payment Date such that, after giving effect to such adjustment, the Minimum
Principal Payment Amounts and Scheduled Principal Payment Amounts for all
subsequent Payment Dates for each Series of Term Notes shall be reduced by an
amount equal to the quotient of (i) the aggregate amount of the prepayment
actually received by the Noteholders of such Series divided by (ii) the number
of remaining Payment Dates to and including, (A) the Legal Final Maturity Date
(with respect to the Minimum Principal Payment Amount) or (B) the Expected Final
Maturity Date (with respect to the Scheduled Principal Payment Amount), for such
Series of Notes.
Section 703. Unclaimed Funds. In the event that any amount due to any
Noteholder remains unclaimed, the Issuer shall, at its expense, cause to be
published once, in the eastern edition of The Wall Street Journal, notice that
such money remains unclaimed. Any such unclaimed amounts shall not be invested
by the Indenture Trustee (notwithstanding the provisions of Section 303 hereof)
and no additional interest shall accrue on the related Note subsequent to the
date on which such funds were first available for distribution to such
Noteholder. Any such unclaimed amounts shall be held by the Indenture Trustee in
trust until the latest of (i) two (2) years after the date of the publication
described in the second preceding sentence, (ii) the date all other Noteholders
of such Series shall have received full payment of all principal, interest,
premium, if any, and other sums payable to them on such Notes or the Indenture
Trustee shall hold (and shall have notified the Noteholders that it holds) in
trust for that purpose an amount sufficient to make full payment thereof when
due and (iii) the date the Issuer shall have fully performed and observed all
its covenants and obligations contained in this Indenture and the related
Supplement with respect to such Series of Notes. Thereafter, any such unclaimed
amounts shall be paid to the Issuer by the Indenture Trustee on written demand;
and thereupon each of the Indenture Trustee and the Issuer shall be released
from all further liability with respect to such monies, and thereafter the
Noteholders in respect of which such monies were so paid to the Issuer shall
have no rights in respect thereof; provided, that if such money or any portion
thereof that would be paid to the Issuer had been previously deposited by the
Series Enhancer of such Series with the Indenture Trustee for the payment of
principal or interest on the Notes of such Series, to the extent any amounts are
owing to such Series Enhancer, such amounts shall be paid promptly to such
Series Enhancer.
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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):
(1) the occurrence of the events set forth in clause (A) or clause
(B) at the times set forth herein;
(A) default in (x) the payment on any Payment Date of any
interest payment then due and payable on any Series of Notes and
the continuation of such default for more than five (5) Business
Days, or (y) the payment on the Legal Final Maturity Date of any
Series of Notes of the then unpaid principal balance of such
Series of Notes;
(B) default in the payment of (x) any Indenture Trustee's Fees
then due and payable, (y) a Premium or other amounts due and
owing to any Series Enhancer or (z) other amounts not dealt with
in clause (A) above owing to the Noteholders of any Series, and
the continuation of such default for more than fifteen (15)
Business Days after the same shall have become due and payable in
accordance with the terms of such Notes, this Indenture and the
related Supplement;
(2) default in the observation or performance of any covenant of the
Issuer set forth in Sections 608, 612, 621 or 630 hereof which
breach materially and adversely affects the interest of any
Noteholder or Series Enhancer (if such Series Enhancer is then
the Control Party for a Series of Outstanding Notes);
(3) default in the observation or performance of any covenant of the
Issuer set forth in Sections 606, 607, 609, 610, 611, 613, 616 or
622 hereof which breach materially and adversely affects the
interest of any Noteholder or Series Enhancer (if such Series
Enhancer is then the Control Party for a Series of Outstanding
Notes), and, if curable, continues unremedied for twenty (20)
days after the date on which there has been given to the Issuer,
by the Indenture Trustee, any Series Enhancer or any Noteholder,
a written notice specifying such default or breach and requiring
it to be remedied;
(4) default in the observation or performance of any covenant of the
Issuer set forth in Sections 602, 614, 615, 619 or 623(b) hereof
which breach materially and adversely affects the interest of any
Noteholder or Series Enhancer (if such Series Enhancer is then
the Control Party for a Series of Outstanding Notes), and, if
curable, continues for thirty (30) days after the date on which
there has been given to the Issuer, by the Indenture Trustee, any
Series Enhancer or any Noteholder, a written notice specifying
such default or breach and requiring it to be remedied;
(5) default in the performance, or breach, in any material respect,
of (a) any covenant of the Issuer in this Indenture or any other
Transaction Document (other than a covenant or agreement a breach
of which or default in the performance of which
38
is specifically dealt with elsewhere in this Section 801) which
materially and adversely affects the interest of any Noteholder
or any Series Enhancer (if such Series Enhancer is then the
Control Party for a Series of Outstanding Notes) and which, if
curable, continues for sixty (60) days after the date on which
there has been given to the Issuer, by the Indenture Trustee, or
to the Issuer or the Seller and the Indenture Trustee by any
Series Enhancer or any Noteholders, a written notice specifying
such default or breach and requiring it to be remedied, provided,
however, that if the Issuer is diligently attempting to effect
such cure at the end of such sixty (60) day period, the Issuer
shall be entitled to an additional sixty (60) day period in which
to complete such cure; or (b) any representation or warranty of
the Issuer made in any other Transaction Documents or in any
certificate or other writing delivered pursuant hereto or thereto
or in connection herewith with respect to or affecting any
Outstanding Notes shall prove to be inaccurate in any respect
which materially and adversely affects the interests of any
Noteholder or any Series Enhancer (if such Series Enhancer is
then the Control Party for a Series of Outstanding Notes) as of
the time when the same shall have been made, and such inaccuracy,
if curable, continues for sixty (60) days after the date on which
there has been given to the Issuer by the Indenture Trustee, or
to the Issuer and the Indenture Trustee by any Series Enhancer or
any Noteholders, a written notice specifying such inaccuracy and
requiring it to be remedied, provided, however, that if such
inaccuracy is capable of cure and the Issuer is diligently
attempting to effect such cure at the end of such sixty (60) day
period, the Issuer shall be entitled to an additional sixty (60)
day period in which to complete such cure;
(6) 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;
(7) the commencement by the Issuer of a voluntary case under any
applicable Insolvency Law, or other similar law or hereafter in
effect, or the consent by the Issuer to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or other similar official) of the
Issuer, or any substantial part of its properties, or the making
by the Issuer of any general assignment for the benefit of
creditors, or the failure by the Issuer generally to pay its
debts as they become due, or the taking of corporate action by
the Issuer in furtherance of any such action;
(8) as of any date of determination, the Aggregate Note Principal
Balance shall exceed the sum of (A) the product of (i) one
hundred percent (100%) and (ii) the Aggregate Net Book Value,
plus (B) the product of (i) one hundred percent (100%) and (ii)
the then current balance on deposit in the Restricted Cash
Account, plus (C) one hundred percent (100%) of the unpaid
balance of any receivables resulting from the sale or other
disposition of one or more Eligible Containers that were either
owned by the Issuer or subject to a Finance Lease for which the
Issuer is the lessor, so long as such receivables are not then
outstanding for more than ninety (90) days (measured from the
issue date of such receivables);
39
(9) the occurrence of a contribution failure with respect to a Plan
maintained by Issuer or an ERISA Affiliate of the Issuer, which
contribution failure is sufficient to give rise to a lien under
Section 302(f) of ERISA; or
(10) the Indenture Trustee shall fail to have a first priority
perfected security interest under the laws of the United States
in any material portion of the Collateral (other than as a result
of a Permitted Encumbrance) and such condition continues for
fifteen (15) days without being cured or waived by each Control
Party unless such failure is due to any act or omission of the
Indenture Trustee or the Noteholders;
(11) the Issuer is required to register as an investment company under
the Investment Company Act of 1940, as amended;
(12) the rendering against the Issuer of a final judgment, decree or
order for the payment of money in excess of One Million Dollars
($1,000,000), (to the extent not paid when due or covered by a
reputable and solvent insurance company, with any portion of such
judgment, decree or order not so paid or not so covered, as
applicable, to be included in the determination of the dollar
amount specified in this clause (12)) which judgment, decree or
order results in a claim that would entitle the claimholder to
petition for the involuntary bankruptcy of the Issuer under the
Bankruptcy Code, and the continuance of such judgment, decree or
order for a period of 60 consecutive days; or
(13) all of the following shall have occurred: (A) a Manager Default
shall have occurred and be continuing, (B) the Requisite Global
Majority shall have delivered the Manager Termination Notice to
the Manager in accordance with the terms of the Management
Agreement and (C) a replacement Manager has not assumed the
duties of the terminated Manager within the earlier of (i) ninety
(90) days, if on such 90th day or any day thereafter there exists
an Asset Base Deficiency, or (ii) one hundred twenty (120) days
at all times not covered by clause (i); in each case measured
from the date of such Manager Termination Notice.
The occurrence of an Event of Default with respect to one Series of
Notes, except to the extent waived by the related Control Party for such Series
of Notes, shall constitute an Event of Default with respect to all other Series
of Notes then Outstanding unless the related Supplement with respect to each
such Series of Notes shall specifically provide to the contrary.
Section 802. Acceleration of Stated Maturity; Rescission and
Annulment. (a) Upon the occurrence of an Event of Default of the type described
in paragraph (6) or (7) of Section 801, the unpaid principal balance of, and
accrued interest on, all Series of Notes, together with all other amounts then
due and owing to the Noteholders, each Series Enhancer and each Interest Rate
Hedge Counterparty, shall become immediately due and payable without further
action by any Person. Except as set forth in the immediately preceding sentence,
if an Event of Default under Section 801 occurs and is continuing, then and in
every such case the Indenture Trustee shall at the direction of the Requisite
Global Majority declare the principal of and accrued interest on all Notes of
all Series then Outstanding to be due and payable immediately, by a notice in
writing to the Issuer and to the Indenture Trustee given by the Requisite Global
Majority, and upon any such declaration such principal and accrued interest
shall become immediately due and payable.
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(b) At any time after such a declaration of acceleration has been made
and before a judgment or decree for payment of the money due has been obtained
by the Indenture Trustee as hereinafter in this Article provided, the Requisite
Global Majority, in its sole discretion, by written notice to the Issuer and the
Indenture Trustee, may rescind and annul such declaration and its consequences
if:
(i) the Issuer has paid or deposited with the Indenture Trustee a
sum sufficient to pay:
(A) all of the installments of interest and, if the Legal
Final Maturity Date has occurred with respect to any Series,
principal of all Notes of such Series, in each case to the extent
such amounts were overdue prior to the date of such acceleration;
(B) to the extent that payment of such interest is lawful,
interest at the Default Rate on the amounts set forth in clause
(A) above;
(C) all unpaid Indenture Trustee's Fees and sums paid or
advanced by the Indenture Trustee hereunder or by the Manager and
the reasonable and documented compensation, out-of-pocket
expenses, disbursements and advances of the Indenture Trustee,
its agents and counsel incurred in connection with the
enforcement of this Indenture;
(D) all amounts due to each Series Enhancer; and
(E) all 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, the Issuer will, upon demand
of the Indenture Trustee, pay to the Indenture Trustee, for the benefit of the
Noteholders of all Series then Outstanding, all Interest Rate Hedge
Counterparties and all Series Enhancers, an amount equal to the whole amount
then due and payable on all Series of Notes for principal and interest, with
interest upon the overdue principal and, to the extent that payment of such
interest shall be legally enforceable, upon overdue installments of interest, at
the Default Rate payable with respect to each such Note and, in addition
thereto, such further amount as shall be sufficient to cover all other
Outstanding Obligations, the costs and out-of-pocket expenses of collection,
including the reasonable and documented compensation, expenses, disbursements
and advances of the Indenture Trustee and the Requisite Global Majority, their
respective agents and counsel incurred in connection with the enforcement of
this Indenture.
Section 804. Remedies. If an Event of Default occurs and is
continuing, the Indenture Trustee, by such officer or agent as it may appoint,
shall notify each Noteholder, each Eligible Interest Rate Hedge Counterparty,
the Administrative Agent, each Series Enhancer and the applicable Rating
41
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:
(i) institute any Proceedings, in its own name and as trustee of
an express trust, for the collection of all amounts then due and
payable on the Notes of all Series under this Indenture or the related
Supplement with respect thereto, whether by declaration or otherwise,
enforce any judgment obtained, and collect from the Collateral and any
other assets of the Issuer any monies adjudged due;
(ii) subject to the quiet enjoyment rights of any lessee of a
Managed Container, sell (including any sale made in accordance with
Section 816 hereof), hold or lease the Collateral or any portion
thereof or rights or interest therein, at one or more public or
private transactions conducted in any manner permitted by law;
(iii) institute any Proceedings from time to time for the
complete or partial foreclosure of the Lien created by this Indenture
with respect to the Collateral;
(iv) institute such other appropriate Proceedings to protect and
enforce any other rights, whether for the specific enforcement of any
covenant or agreement in this Indenture or in aid of the exercise of
any power granted herein, or to enforce any other proper remedy;
(v) exercise any remedies of a secured party under the Uniform
Commercial Code or any applicable law and take any other appropriate
action to protect and enforce the rights and remedies of the Indenture
Trustee or the Noteholders hereunder; and
(vi) appoint a receiver or a manager over the Issuer or its
assets.
Section 805. Indenture Trustee May Enforce Claims Without Possession
of Notes.
(a) In all Proceedings brought by the Indenture Trustee (and also any
Proceedings involving the interpretation of any provision of this Indenture to
which the Indenture Trustee shall be a party), the Indenture Trustee shall be
held to represent all of the Noteholders, and it shall not be necessary to make
any Noteholder a party to any such Proceedings.
(b) All rights of action and claims under this Indenture, the related
Supplement or any of the Notes may be prosecuted and enforced by the Indenture
Trustee without the possession of such Notes or the production thereof in any
Proceeding relating thereto, and any such Proceeding instituted by the Indenture
Trustee shall be brought in its own name as trustee of an express trust, and any
recovery whether by judgment, settlement or otherwise shall, after provision for
the payment of the reasonable compensation, expenses, and disbursements incurred
and advances made, by the Indenture Trustee, its agents and counsel, be for the
ratable benefit of the Noteholders of the Notes, subject to the subordination of
payments among Classes of a particular Series as set forth in the related
Supplement for such Series.
Section 806. Allocation of Money Collected. If the Notes of all Series
have been declared due and payable following an Event of Default and such
declaration and its consequences have not been rescinded or annulled, any money
collected by the Indenture Trustee pursuant to this Article or otherwise and any
other monies that may be held or thereafter received by the Indenture Trustee as
security for such Notes and the obligations secured hereby shall be applied, to
the extent permitted by law, in the following order, at the date or dates fixed
by the Indenture Trustee by wire transfer of immediately available funds:
42
(1) To the Indenture Trustee, all the Indenture Trustee's Fees then
due and payable for all Series then Outstanding subject to the
per annum dollar limitation in Section 905, plus any costs
incurred by the Indenture Trustee in enforcing any of the rights
of the Indenture Trustee or the Noteholders hereunder or under
any of the other Transaction Documents;
(2) To the Administrative Agent, the Administrative Agent Fees then
due and payable;
(3) To the Manager, an amount equal to the sum of: (i) the Management
Fee then due and payable, (ii) the amount of any Management Fee
Arrearage, and (iii) any Excess Deposit then due and payable, but
in each case only to the extent not previously withheld by the
Manager in accordance with the terms of the Transaction
Documents;
(4) To the Manager, the reimbursement for any Manager Advances;
(5) To the Persons entitled thereto: (i) auditing, accounting and
related fees then due and payable which are classified as an
Issuer Expense, and (ii) any other Issuer Expenses, so long as
the aggregate amount paid pursuant to this clause (5)(ii) in any
calendar year would not exceed five hundred thousand Dollars
($500,000);
(6) To each Series Enhancer, on a pro rata basis, based on the amount
of Premiums then due and payable, the amount of any Premium then
due and payable pursuant to the terms of each applicable
Enhancement Agreement;
(7) To each of the following on a pro rata basis: (i) to each Series
Account for each Series of Notes then Outstanding, an amount
equal to the Priority Payments for each such Series and (ii) to
each Interest Rate Hedge Counterparty, the amount of any
scheduled payments (but excluding termination payments then due
and payable pursuant to the terms of any Interest Rate Hedge
Agreement then in effect. If sufficient funds do not exist to pay
in full all such Priority Payments, such amounts shall be
allocated among all Series of Notes in the same proportion as the
ratio of (x) the Priority Payments of a particular Series of
Notes then Outstanding on such Payment Date to (y) the sum of the
Priority Payments for all Series of Notes then Outstanding at
such Payment Date;
(8) To pay each of the amounts set forth in clause (i) and (ii) on a
pro rata and a pari passu basis (based on amounts then due): (i)
to each Series Account, the then unpaid principal balance of the
related Notes (pro rata based on the amounts unpaid on the date
on which such Event of Default first occurs) (including
Reimbursement Amounts payable in respect thereof to the Series
Enhancer), and (ii) to each Interest Rate Hedge Counterparty, the
remaining amounts then due and payable under the related Interest
Rate Hedge Agreement, until such amounts are paid in full; or
(9) To each of the following on a pro rata basis: to the Series
Account for each Series of Notes then Outstanding, an amount
equal to all other amounts then due and payable to the
Noteholders of such Series and the related Series Enhancer, if
any, including, without limitation, Default Interest, increased
costs, taxes and indemnity payments identified in the related
Supplement; and (ii) to each Interest Rate Hedge Counterparty, on
a pro rata basis, the amount of any other unpaid
43
amounts owing by the Issuer (including termination payments) then
due and payable pursuant to the terms of any Interest Rate Hedge
Agreement then in effect;
(10) To each Interest Rate Hedge Counterparty, on a pro rata basis,
all remaining amounts then due and owing (after giving effect to
the amounts paid pursuant to clauses (7) and (8) above);
(11) To the Indenture Trustee, any Indenture Trustee's Fees then due
and payable, after giving effect to the payment made pursuant to
clause (1) above but not subject to the per annum dollar
limitation in Section 905;
(12) To the Issuer, the amount of any indemnity payment owing by it
pursuant to the terms of the Transaction Documents;
(13) To the Manager, the amount of any indemnity payment owing by it
pursuant to the terms of the Transaction Documents; and
(14) To the Issuer, any remaining monies which may, any provision in
the Transaction Documents to the contrary notwithstanding, be
used by the Issuer for any purpose, including, without
limitation, general corporate purposes, the distribution of
dividends, repayment of debt, paying fees and expenses or any
other purpose in the sole discretion of the Issuer.
Section 807. Limitation on Suits. Except to the extent provided in
Section 808 hereof, no Noteholder shall have the right to institute any
Proceeding, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(i) such Noteholder has previously given written notice to the
Indenture Trustee of a continuing Event of Default;
(ii) the Requisite Global Majority shall have made written
request to the Indenture Trustee to institute Proceedings in respect
of such Event of Default in its own name as Indenture Trustee
hereunder;
(iii) such Noteholder or Noteholders have offered to the
Indenture Trustee reasonable security or indemnity satisfactory to it
against the costs, expenses and liabilities to be incurred in
compliance with such request;
(iv) the Indenture Trustee has, for thirty (30) days after its
receipt by a Corporate Trust Officer of such notice, request and offer
of security or indemnity, failed to institute any such Proceeding; and
(v) no direction inconsistent with such written request has been
given to the Indenture Trustee during such thirty (30) day period by
the Requisite Global Majority;
it being understood and intended that no one or more Noteholders shall have any
right in any manner whatsoever by virtue of, or by availing of, any provision of
this Indenture to affect, disturb or prejudice the rights of any other
Noteholder, or to obtain or to seek to obtain priority or preference over any
other Noteholder (except to the extent provided in the related Supplement) or to
enforce any right under this Indenture, except in the manner herein provided and
for the benefit of all Noteholders.
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Section 808. Unconditional Right of Noteholders to Receive Principal,
Interest and Commitment Fees. Notwithstanding any other provision of this
Indenture, each Noteholder shall have the right, which is absolute and
unconditional, to receive payment of the principal of, interest on and
commitment fees in respect of such Note as such principal, interest and
commitment fees become due and payable in accordance with the provisions of this
Indenture and the related Supplement and to institute any Proceeding for the
enforcement of such payment, and such rights shall not be impaired without the
consent of such Noteholder.
Section 809. Restoration of Rights and Remedies. If the Indenture
Trustee, any Series Enhancer or any Noteholder has instituted any Proceeding to
enforce any right or remedy under this Indenture or the related Supplement and
such Proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Indenture Trustee, such Series Enhancer or to such
Noteholder, then and in every such case, subject to any determination in such
Proceeding, the Issuer, the Indenture Trustee, such Series Enhancer and the
Noteholders shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Indenture
Trustee, such Series Enhancer and the Noteholders shall continue as though no
such Proceeding had been instituted.
Section 810. Rights and Remedies Cumulative. No right or remedy
conferred upon or reserved to the Indenture Trustee, any Series Enhancer, any
Interest Rate Hedge Counterparty or to the Noteholders pursuant to this
Indenture or any Supplement is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
Section 811. Delay or Omission Not Waiver. No delay or omission of the
Indenture Trustee, of any Series Enhancer, of any Interest Rate Hedge
Counterparty or of any Noteholder to exercise any right or remedy accruing upon
any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Indenture Trustee, any Interest
Rate Hedge Counterparty, any Series Enhancer or to the Noteholders may be
exercised from time to time, and as often as may be deemed expedient, by the
Indenture Trustee, by any Series Enhancer, by any Interest Rate Hedge
Counterparty or by the Noteholders, as the case may be.
Section 812. Control by Requisite Global Majority.
(a) Upon the occurrence of an Event of Default, the Requisite Global
Majority shall have the right to direct the time, method and place of conducting
any Proceeding for any remedy available to the Indenture Trustee or exercising
any trust or power conferred on the Indenture Trustee, provided that (i) such
direction shall not be in conflict with any rule of law or with this Indenture,
including, without limitation, Section 804 hereof and (ii) the Indenture Trustee
may take any other action deemed proper by the Indenture Trustee which is not
inconsistent with such direction.
(b) Notwithstanding the grant of a security interest to secure the
Outstanding Obligations owing to the Indenture Trustee, for the benefit the
Noteholders, each Series Enhancer and each Interest Rate Hedge Counterparty, all
rights to direct actions or to exercise rights or remedies under this Indenture
or the UCC (including these set forth in Section 804 hereof) shall be vested
solely in the Requisite Global Majority and, by accepting the benefits of this
Indenture, each Noteholder and Interest Rate Hedge Counterparty acknowledges
such statement; provided, however, that nothing contained in this paragraph
shall constitute a modification of Section 808, Section 813(b) or Section 816(d)
hereof.
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Section 813. Waiver of Past Defaults. (a) The Requisite Global
Majority may, on behalf of all Noteholders of all Series, waive any past Event
of Default and its consequences, except an Event of Default:
(i) in the payment of (x) the principal balance of any Note on
the Legal Final Maturity Date of such Note, (y) interest on any Note
of any Series on any Payment Date, or (z) commitment fees in respect
of any Note of any Series on any Payment Date, all of which defaults
can be waived solely by the affected Noteholders; or
(ii) in respect of a covenant or provision hereof which cannot be
modified or amended without the consent of all of the Noteholders
affected thereby pursuant to Section 1002 of this Indenture.
(b) Upon any such waiver, such Event of Default shall cease to exist
and shall be deemed to have been cured and not to have occurred for every
purpose of this Indenture; provided, however, that no such waiver shall extend
to (i) any subsequent or other Event of Default or impair any right consequent
thereon or (ii) affect any Interest Rate Hedge Agreement which has been
terminated in accordance with its terms.
Section 814. Undertaking for Costs. All parties to this Indenture
agree, and each Noteholder by acceptance of a Note shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Indenture Trustee for any action taken, suffered or omitted by it as the
Indenture Trustee, the filing by any party litigant in such suit of an
undertaking to pay the costs of such suit, and that such court may in its
discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant;
provided, however, that the provisions of this Section shall not apply to any
suit instituted by the Indenture Trustee, to any suit instituted by any
Noteholder, or group of Noteholders, holding in the aggregate more than ten
percent (10%) of the aggregate principal balance of the Notes of all Series then
Outstanding, or to any suit instituted by any Noteholder for the enforcement of
the payment of the principal of or interest on any Note on or after the Legal
Final Maturity Date of such Note.
Section 815. Waiver of Stay or Extension Laws. The Issuer covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which may affect the covenants or the performance of this
Indenture; and the Issuer (to the extent that it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law and covenants that it
will not hinder, delay or impede the execution of any power herein granted to
the Indenture Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
Section 816. Sale of Collateral.
(a) The power to effect any sale (a "Sale") of any portion of the
Collateral pursuant to Section 804 hereof shall not be exhausted by any one or
more Sales as to any portion of the Collateral remaining unsold, but shall
continue unimpaired until the entire Collateral shall have been sold or all
Outstanding Obligations shall have been paid in full. The Indenture Trustee at
the direction of the Requisite Global Majority may from time to time postpone
any Sale by public announcement made at the time and place of such Sale.
(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
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Indenture: (i) the Indenture Trustee, at the written direction of the Requisite
Global Majority, may bid for and purchase the property being sold, and upon
compliance with the terms of such Sale may hold, retain and possess and dispose
of such property in accordance with the terms of this Indenture; and (ii) the
receipt of the Indenture Trustee or of any officer thereof making such Sale
shall be a sufficient discharge to the purchaser or purchasers at such Sale for
its or their purchase money, and such purchaser or purchasers, and its or their
assigns or personal representatives, shall not, after paying such purchase money
and receiving such receipt of the Indenture Trustee or of such officer therefor,
be obliged to see to the application of such purchase money or be in any way
answerable for any loss, misappropriation or non-application thereof.
(c) The Indenture Trustee shall execute and deliver an appropriate
instrument of conveyance provided to it transferring its interest in any portion
of the Collateral in connection with a Sale thereof. In addition, the Indenture
Trustee is hereby irrevocably appointed the agent and attorney-in-fact of the
Issuer to transfer and convey its interest (subject to lessees' rights of quiet
enjoyment) in any portion of the Collateral in connection with a Sale thereof,
and to take all action necessary to effect such Sale. No purchaser or transferee
at such a Sale shall be bound to ascertain the Indenture Trustee's authority,
inquire into the satisfaction of any conditions precedent or see to the
application of any monies.
(d) The Indenture Trustee acknowledges that its right to sell,
transfer or otherwise convey any Interest Rate Hedge Agreement or any
transaction outstanding thereunder, or to exercise foreclosure rights with
respect thereto shall be subject to compliance with the provisions of the
applicable Interest Rate Hedge Agreement.
Section 817. Action on Notes. The Indenture Trustee's right to seek
and recover judgment on the Notes or under this Indenture or any Supplement
shall not be affected by the seeking, obtaining or application of any other
relief under or with respect to this Indenture or any Supplement. Neither the
Lien of this Indenture nor any rights or remedies of the Indenture Trustee, any
Series Enhancer, any Interest Rate Hedge Counterparty or the Noteholders shall
be impaired by the recovery of any judgment by the Indenture Trustee against the
Issuer or by the levy of any execution under such judgment upon any portion of
the Collateral or upon any of the assets of the Issuer.
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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 any
Supplement and no implied duties shall be inferred against it. If an Event of
Default has occurred and is continuing, the Indenture Trustee, at the written
direction of the Requisite Global Majority, shall exercise such of the rights
and powers vested in it by this Indenture and the related Supplements, and use
the same degree of care and skill in its exercise as a prudent Person would
exercise or use under the circumstances in the conduct of such Person's own
affairs.
The Indenture Trustee, upon receipt of all resolutions, certificates,
statements, opinions, reports, documents, orders or other instruments furnished
to the Indenture Trustee which are specifically required to be furnished
pursuant to any provisions of this Indenture and any applicable Supplement,
shall determine whether they are substantially in the form required by this
Indenture and any applicable Supplement; provided, however, that the Indenture
Trustee shall not be responsible for the accuracy or content (including
mathematical calculations) of any such resolution, certificate, statement,
opinion, report, document, order or other instrument furnished pursuant to this
Indenture and any applicable Supplement.
No provision of this Indenture or any Supplement shall be construed to
relieve the Indenture Trustee from liability for its own negligent action, its
own negligent failure to act or its own willful misconduct; provided, however,
that:
(i) Prior to the occurrence of an Event of Default and after the cure
or waiver of any Event of Default that may have occurred, the duties and
obligations of the Indenture Trustee shall be determined solely by the
express provisions of this Indenture and any Supplements. The Indenture
Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture and any
Supplements, and no implied covenants or obligations shall be read into
this Indenture against the Indenture Trustee and, in the absence of bad
faith on the part of the Indenture Trustee, the Indenture Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon any certificates, statements, reports,
documents, orders, opinions or other instruments (whether in their original
or facsimile form) furnished to the Indenture Trustee and conforming to the
requirements of this Indenture and any Supplements (and is entitled to rely
on the accuracy of any mathematical calculation or other facts stated
therein);
(ii) The Indenture Trustee shall not be liable for an error of
judgment made in good faith by a Corporate Trust Officer or Corporate Trust
Officers of the Indenture Trustee, unless it shall be proved that the
Indenture Trustee was negligent in ascertaining the pertinent facts; and
(iii) The Indenture Trustee shall not be personally liable with
respect to any action taken, suffered or omitted to be taken by it in good
faith in accordance with the direction of the Requisite Global Majority
relating to the time, method and place of conducting any proceeding for any
remedy available to the Indenture Trustee, or exercising any trust or power
conferred upon the Indenture Trustee, under this Indenture.
No provision of this Indenture shall require the Indenture Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of
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such funds or adequate security or indemnity against such risk or liability is
not reasonably assured to it (the unsecured indemnity of each Series Enhancer
(so long as its claims paying ability is rated "AAA" or "Aaa", as applicable)
upon such terms as may be reasonably acceptable to the Indenture Trustee being
deemed satisfactory for such purpose).
Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording
protection to the Indenture Trustee shall be subject to the provisions of this
Section 901.
Section 902. Certain Matters Affecting the Indenture Trustee. Except
as otherwise provided in Section 901 hereof:
(i) The Indenture Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any Opinion of Counsel,
certificate of an officer of the Issuer or the Manager, certificate of
auditors or any other certificate, statement, instrument, opinion, report,
notice, request, consent, order, appraisal, bond or other paper or document
(whether in its original or facsimile form) reasonably believed by it to be
genuine and to have been signed or presented by the proper party or
parties;
(ii) The Indenture Trustee may consult with counsel of its selection
and any advice or opinion of such counsel shall be full and complete
authorization and protection in respect of any action taken or suffered or
omitted by it hereunder in good faith and in accordance in reliance
therewith;
(iii) The Indenture Trustee shall be under no obligation to institute,
conduct or defend any litigation or proceeding hereunder or in relation
hereto at the request, order or direction of the Requisite Global Majority,
pursuant to the provisions of this Indenture, unless the Indenture Trustee
shall have security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities which may be incurred therein or thereby
(the unsecured indemnity of each Series 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 reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture;
(v) The Indenture Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval,
bond or other paper or document, unless requested in writing to do so by
the Requisite Global Majority; provided, however, that the Indenture
Trustee may require reasonable security or indemnity satisfactory to it
against any cost, expense or liability likely to be incurred in making such
investigation as a condition to so proceeding (the unsecured indemnity of
each Series Enhancer (so long as its claims paying ability is rated "AAA"
or "Aaa", as applicable) upon such terms as may be reasonably acceptable to
the Indenture Trustee being deemed satisfactory for such purpose). The
reasonable expense of any such examination shall be paid, on a pro rata
basis, by the Noteholders of the applicable Series requesting such
examination or, if paid by the Indenture Trustee, shall be reimbursed by
such Noteholders upon demand;
(vi) The Indenture Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
its agents or attorneys and the Indenture Trustee shall not be responsible
for any misconduct or negligence on the part of any agent or attorney
appointed by it with due care hereunder;
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(vii) The Indenture Trustee shall not be charged with knowledge of any
Default, Event of Default or Early Amortization Event unless either a
Responsible Officer of the Indenture Trustee shall have actual knowledge
thereof or written notice of such shall have been actually received by a
Responsible Officer of the Indenture Trustee; and
(viii) The rights, privileges, protections, immunities and benefits
given to the Indenture Trustee, including, without limitation, its right to
be indemnified, are extended to, and shall be enforceable by, the Indenture
Trustee in each of its capacities hereunder, and to each agent, custodian
and other Person employed to act on behalf of the Indenture Trustee
hereunder.
The provisions of this Section 902 shall be applicable to the
Indenture Trustee in its capacity as the Note Registrar under this Indenture.
Section 903. Indenture Trustee Not Liable. (a) The recitals contained
herein (other than the representations and warranties contained in Section 911
hereof), in any Supplement and in the Notes (other than the certificate of
authentication on the Notes) shall be taken as the statements of the Issuer, and
the Indenture Trustee assumes no responsibility for their correctness. The
Indenture Trustee makes no representations as to the validity or sufficiency of
this Indenture, any Supplement, the Notes, the Collateral or of any related
document; provided that this sentence shall not limit the representations and
warranties made by the Indenture Trustee in Section 911. The Indenture Trustee
shall not be accountable for the use or application by the Issuer of the
proceeds of any Series or Class of Notes, or for the use or application of any
funds paid to the Issuer or the Manager in respect of the Collateral.
(b) The Indenture Trustee shall have no responsibility or liability
for or with respect to the existence or validity of any Collateral the
perfection of any security interest (whether as of the date hereof or at any
future time), the maintenance of or the taking of any action to maintain such
perfection, the validity of the assignment of any portion of the Collateral to
the Indenture Trustee or of any intervening assignment, the compliance by the
Seller or the Manager with any covenant or the breach by the Seller or the
Manager of any warranty or representation made hereunder, in any Supplement or
in any related document or the accuracy of such warranty or representation, any
investment of monies in the Trust Account, the Restricted Cash Account or any
Series Account or any loss resulting therefrom (provided that such investments
are made in accordance with the provisions of Section 303 hereof), or the acts
or omissions of the Seller or the Manager taken in the name of the Indenture
Trustee.
(c) Except as expressly provided herein or in any Supplement, the
Indenture Trustee shall not have any obligation or liability under any Contract
by reason of or arising out of this Indenture or the granting of a security
interest in such Contract hereunder or the receipt by the Indenture Trustee of
any payment relating to any Contract pursuant hereto, nor shall the Indenture
Trustee be required or obligated in any manner to perform or fulfill any of the
obligations of the Issuer, the Seller or the Manager under or pursuant to any
Contract, or to make any payment, or to make any inquiry as to the nature or the
sufficiency of any payment received by it, or the sufficiency of any performance
by any party, under any Contract.
Section 904. Indenture Trustee May Own Notes. Subject to compliance
with subsection (a)(4)(i) of Rule 3a-7 under the Investment Company Act of 1940,
the Indenture Trustee in its individual or any other capacity may become the
owner or pledgee of Notes with the same rights it would have if it were not the
Indenture Trustee.
Section 905. Indenture Trustee's Fees and Expenses. The fees,
expenses, disbursements and advances of the Indenture Trustee shall be paid only
by the Issuer in accordance with Section 302 or 806 hereof. The Issuer shall
indemnify the Indenture Trustee (and any predecessor Indenture Trustee) and each
of its officers, directors and employees for, and hold them harmless against,
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any loss, liability, damage claim or expense incurred without negligence or
willful misconduct on their part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses of
defending itself both individually and in its representative capacity against
any claim or liability in connection with the exercise or performance of any of
its powers or duties hereunder (together with the fees, expenses, disbursements
and advances of the Indenture Trustee, "Indenture Trustee Fees"); provided
however, that the Indenture Trustee's Fees payable pursuant to clauses (c)(I)(1)
and (c)(II)(1) in Section 302 or Section 806 hereof shall not exceed One Hundred
Thousand Dollars ($100,000) per annum.
The obligations of the Issuer under this Section 905 to compensate the
Indenture Trustee, and to indemnify and hold harmless, the Indenture Trustee
shall constitute Outstanding Obligations hereunder and shall survive the
resignation or removal of the Indenture Trustee and the satisfaction and
discharge of this Indenture.
When the Indenture Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 801(4) or Section
801(5), the expenses and the compensation for the services are intended to
constitute expenses of administration under any bankruptcy law.
Section 906. Eligibility Requirements for the Indenture Trustee. The
Indenture Trustee hereunder shall at all times be a national banking association
or a corporation, organized and doing business under the laws of the United
States of America or any State, and authorized under such laws to exercise
corporate trust powers. In addition, the Indenture Trustee or its parent
corporation shall at all times (i) have a combined capital and surplus of at
least $50,000,000, (ii) be subject to supervision or examination by Federal or
state authority, (iii) have (A) in the case of U.S. Bank National Association, a
long-term unsecured debt rating of "A" or better by Xxxxx'x and S&P or (B) in
all other instances, a long-term unsecured senior debt rating of "A-2" or better
by Xxxxx'x and a long-term unsecured senior debt rating of "A" or better by S&P
and short-term unsecured senior debt rating of "P-1" or better by Xxxxx'x and a
short-term unsecured senior debt rating of "A-2" or better by S&P; provided that
with respect to a successor Indenture Trustee, clauses (i), (ii) and (iii) shall
not apply if, as of the date on which the successor Indenture Trustee is
appointed, such successor Indenture Trustee is acceptable to the Requisite
Global Majority and each Interest Rate Hedge Counterparty. The Indenture Trustee
shall at all times satisfy the requirements of subsection (a)(4)(i) of Rule 3a-7
of the Investment Company Act of 1940. If the Indenture Trustee publishes
reports of condition at least annually, pursuant to law or to the requirements
of such supervising or examining authority, then, for the purposes of this
Section 906, the combined capital and surplus of the Indenture Trustee shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Indenture Trustee
shall cease to be eligible in accordance with the provisions of this Section,
the Indenture Trustee shall resign promptly in the manner and with the effect
specified in Section 907 hereof.
Section 907. Resignation and Removal of the Indenture Trustee. The
Indenture Trustee may at any time resign and be discharged from the trusts
hereby created by giving written notice thereof to the Issuer, the Manager, the
Administrative Agent, each Series Enhancer and the Noteholders. Upon receiving
such notice of resignation, the Issuer, at the direction and subject to the
consent of the Requisite Global Majority, shall promptly appoint a successor
trustee by written instrument, in duplicate, one copy of which instrument shall
be delivered to the resigning Indenture Trustee, each Eligible Interest Rate
Hedge Counterparty, the Administrative Agent, each Series Enhancer, and one copy
to the successor Indenture Trustee. If no successor Indenture Trustee shall have
been so appointed and have accepted appointment within thirty (30) days after
the giving of such notice of resignation, the Requisite Global Majority may
appoint a successor Indenture Trustee or, if it does not do so within thirty
(30) days after the end of such thirty (30) day period, the resigning Indenture
Trustee may petition at the expense of the Issuer any court of competent
jurisdiction for the appointment of a successor Indenture Trustee, which
successor trustee shall meet the eligibility standards set forth in Section 906.
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If at any time (i) the Indenture Trustee shall cease to be eligible in
accordance with the provisions of Section 906 hereof and shall fail to resign
after written request therefor by the Issuer, at the direction of the Requisite
Global Majority, or (ii) if at any time the Indenture Trustee shall become
incapable of acting, or (iii) shall be adjudged a bankrupt or insolvent, or a
receiver of the Indenture Trustee, or of its property shall be appointed, or any
public officer shall take charge or control of the Indenture Trustee or of its
property or affairs for the purpose of rehabilitation, conservation or
liquidation, or (iv) the Indenture Trustee shall have defaulted in the
performance of its duties under this Indenture which default materially and
adversely affects the interest of any Noteholder or Series Enhancer (if such
Series Enhancer is then the Control Party for a Series of Outstanding Notes)
and, if curable, continues unremedied for thirty (30) days after the date on
which there has been given to the Indenture Trustee by the Issuer, any Series
Enhancer or any Noteholder, a written notice specifying such default or breach
and requiring it to be remedied, then the Issuer, at the direction of the
Requisite Global Majority, shall remove the Indenture Trustee and appoint a
successor Indenture Trustee by written instrument, in duplicate, one copy of
which instrument shall be delivered to the Indenture Trustee so removed and one
copy to the successor Indenture Trustee.
Any resignation or removal of the Indenture Trustee and appointment of
a successor Indenture Trustee pursuant to any of the provisions of this Section
shall become effective upon acceptance of appointment by the successor Indenture
Trustee as provided in Section 908 hereof.
Section 908. Successor Indenture Trustee. Any successor Indenture
Trustee appointed as provided in Section 907 hereof shall execute, acknowledge
and deliver to the Issuer and to its predecessor Indenture Trustee an instrument
accepting such appointment hereunder, and thereupon the resignation or removal
of the predecessor Indenture Trustee shall become effective and such successor
Indenture Trustee, without any further act, deed or conveyance, shall become
fully vested with all the rights, powers, duties and obligations of its
predecessor hereunder, with like effect as if originally named as the Indenture
Trustee herein. The predecessor Indenture Trustee shall upon payment of all
charges due it, its agents and counsel deliver to the successor Indenture
Trustee all documents relating to the Collateral, if any, delivered to it,
together with any amount remaining in the Trust Account, the Restricted Cash
Account and any Series Accounts. In addition, the predecessor Indenture Trustee
and, upon request of the successor Indenture Trustee, the Issuer shall execute
and deliver such instruments and do such other things as may reasonably be
required for more fully and certainly vesting and confirming in the successor
Indenture Trustee all such rights, powers, duties and obligations.
No successor Indenture Trustee shall accept appointment as provided in
this Section unless at the time of such acceptance such successor Indenture
Trustee shall be eligible under the provisions of Section 906 hereof.
Upon acceptance of appointment by a successor Indenture Trustee as
provided in this Section, the Issuer shall mail notice of the succession of such
Indenture Trustee hereunder to all Noteholders at their addresses as shown in
the Note Register and to each Interest Rate Hedge Counterparty. If the Issuer
fails to mail such notice within ten (10) days after acceptance of appointment
by the successor Indenture Trustee, the successor Indenture Trustee shall cause
such notice to be mailed at the expense of the Issuer.
Section 909. Merger or Consolidation of the Indenture Trustee. Any
Person into which the Indenture Trustee may be merged or converted or with which
it may be consolidated, or any Person resulting from any merger, conversion or
consolidation to which the Indenture Trustee shall be a party, or any Person
succeeding to all or substantially all of the business of the Indenture Trustee,
shall be the successor of the Indenture Trustee hereunder, provided such Person
shall be eligible under the provisions of Section 906 hereof, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, anything herein to the contrary notwithstanding.
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Section 910. Separate Indenture Trustees, Co-Indenture Trustees and
Custodians. If the Indenture Trustee is not capable of acting outside the United
States or exercising trust powers within the United States, it shall have the
power from time to time to appoint (subject to satisfaction of the Rating Agency
Condition, or, if no Series of Notes then has an outstanding rating, subject to
the approval of the Administrative Agent) one or more Persons or corporations to
act either as co-trustees jointly with the Indenture Trustee, or as separate
trustees, or as custodians, for the purpose of holding title to, foreclosing or
otherwise taking action with respect to any of the Collateral, when such
separate trustee or co-trustee is necessary or advisable under any applicable
laws or for the purpose of otherwise conforming to any legal requirement,
restriction or condition in any applicable jurisdiction. The separate trustees,
co-trustees, or custodians so appointed shall be trustees, co-trustees, or
custodians for the benefit of all Noteholders, each Interest Rate Hedge
Counterparty and each Series Enhancer and shall have such powers, rights and
remedies as shall be specified in the instrument of appointment; provided,
however, that no such appointment shall, or shall be deemed to, constitute the
appointee an agent of the Indenture Trustee. The Issuer shall join in any such
appointment, but such joining shall not be necessary for the effectiveness of
such appointment.
Every separate trustee, co-trustee and custodian shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all powers, duties, obligations and rights conferred upon the
Indenture Trustee in respect of the receipt, custody and payment of
monies shall be exercised solely by the Indenture Trustee;
(ii) all other rights, powers, duties and obligations conferred
or imposed upon the Indenture Trustee shall be conferred or imposed
upon and exercised or performed by the Indenture Trustee and such
separate trustee, co-trustee, or custodian jointly, except to the
extent that under any law of any jurisdiction in which any particular
act or acts are to be performed the Indenture Trustee shall be
incompetent or unqualified to perform such act or acts, in which event
such rights, powers, duties and obligations (including the holding of
title to the Collateral or any portion thereof in any such
jurisdiction) shall be exercised and performed by such separate
trustee, co-trustee or custodian;
(iii) no trustee or custodian hereunder shall be personally
liable by reason of any act or omission of any other trustee or
custodian hereunder; and
(iv) the Issuer or the Indenture Trustee may at any time accept
the resignation of or remove any separate trustee, co-trustee or
custodian so appointed by it or them if such resignation or removal
does not violate the other terms of this Indenture.
Any notice, request or other writing given to the Indenture Trustee
shall be deemed to have been given to each of the then separate trustees and
co-trustees, as effectively as if given to each of them. Every instrument
appointing any separate trustee, co-trustee, or custodian shall refer to this
Indenture and the conditions of this Article. Each separate trustee and
co-trustee, upon its acceptance of the trusts conferred, shall be vested with
the estates or property specified in its instrument of appointment, either
jointly with the Indenture Trustee or separately, as may be provided therein,
subject to all the provisions of this Indenture, specifically including every
provision of this Indenture relating to the conduct of, affecting the liability
of, or affording protection to, the Indenture Trustee. Every such instrument
shall be furnished to the Indenture Trustee, each Interest Rate Hedge
Counterparty and each Series Enhancer.
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Any separate trustee, co-trustees, or custodian may, at any time,
constitute the Indenture Trustee, its agent or attorney-in-fact, with full power
and authority, to the extent not prohibited by law, to do any lawful act under
or in respect of this Indenture on its behalf and in its name. If any separate
trustee, co-trustee, or custodian shall die, become incapable of acting, resign
or be removed, all of its estates, properties, rights, remedies and trusts shall
vest in and be exercised by the Indenture Trustee, to the extent permitted by
law, without the appointment of a new or successor trustee or custodian.
No separate trustee, co-trustee or custodian hereunder shall be
required to meet the terms of eligibility as a successor Indenture Trustee under
Section 906 hereof and no notice to Noteholders of the appointment thereof shall
be required under Section 908 hereof.
The Indenture Trustee agrees to instruct the co-trustees, if any, to
the extent necessary to fulfill the Indenture Trustee's obligations hereunder.
Section 911. Representations and Warranties. The Indenture Trustee
hereby represents and warrants as of the Closing Date of each Series that:
(a) Organization and Good Standing. The Indenture Trustee is a
national association duly organized, validly existing and in good standing under
the laws of the United States of America, and has the power to own its assets
and to transact the business in which it is presently engaged;
(b) Authorization. The Indenture Trustee has the power, authority and
legal right to execute, deliver and perform this Indenture and each Supplement
and to authenticate the Notes, and the execution, delivery and performance of
this Indenture and each Supplement and the authentication of the Notes has been
duly authorized by the Indenture Trustee by all necessary corporate action;
(c) Binding Obligations. Each of this Indenture and each Supplement,
assuming due authorization, execution and delivery by the Issuer, constitutes
the legal, valid and binding obligations of the Indenture Trustee, enforceable
against the Indenture Trustee in accordance with its terms, except that (i) such
enforcement may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws (whether statutory, regulatory or decisional) now or
hereafter in effect relating to creditors' rights generally and the rights of
trust companies in particular and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to certain
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought, whether in a proceeding at law or in equity;
(d) No Violation. The performance by the Indenture Trustee of its
obligations under this Indenture and each Supplement will not conflict with,
result in any breach of any of the terms and provisions of, or constitute (with
or without notice, lapse of time or both) a default under, the charter documents
or bylaws of the Indenture Trustee;
(e) No Proceedings. There are no proceedings or investigations to
which the Indenture Trustee is a party pending, or, to the knowledge of the
Indenture Trustee without independent investigation, threatened, before any
court, regulatory body, administrative agency or other tribunal or Governmental
Authority (A) asserting the invalidity of this Indenture or the Notes, (B)
seeking to prevent the issuance of the Notes or the consummation of any of the
transactions contemplated by this Indenture or (C) seeking any determination or
ruling that would materially and adversely affect the performance by the
Indenture Trustee of its obligations under, or the validity or enforceability
of, this Indenture or the Notes; and
(f) Approvals. Neither the execution or delivery by the Indenture
Trustee of this Indenture nor the consummation of the transactions by the
Indenture Trustee contemplated hereby
54
requires the consent or approval of, the giving of notice to, the registration
with or the taking of any other action with respect to any Governmental
Authority under any existing federal or State law governing the banking or trust
powers of the Indenture Trustee.
Section 912. Indenture Trustee Offices. The Indenture Trustee shall
maintain in the State of New York an office or offices or agency or agencies
where Notes may be surrendered for registration of transfer or exchange, which
office currently is located at 00 Xxxxxxxxxx Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000,
and shall promptly notify the Issuer, the Manager, each Interest Rate Hedge
Counterparty and the Noteholders of any change of such location.
Section 913. Notice of Event of Default. If a Responsible Officer of
the Indenture Trustee shall have actual knowledge that an Event of Default with
respect to any Series shall have occurred and be continuing, the Indenture
Trustee shall promptly (but in any event within five (5) Business Days) give
written notice thereof to each Noteholder, the Administrative Agent, any Rating
Agency, the Interest Rate Hedge Counterparty and the Series Enhancer of such
Series. For all purposes of this Indenture, in the absence of actual knowledge
by a Responsible Officer of the Indenture Trustee, the Indenture Trustee shall
not be deemed to have actual knowledge of any Event of Default unless notified
in writing thereof by the Issuer, the Seller, the Manager, any Series Enhancer,
the Administrative Agent or any Noteholder, and such notice references the
applicable Series of Notes generally, the Issuer, this Indenture or the
applicable Supplement.
Section 914. Notices. The Indenture Trustee shall make reasonable
efforts to forward, to the Deal Agents, within five (5) Business Days of receipt
thereof, copies of all notices, reports and other written communications that it
delivers or receives, at the address for notices provided in the Transaction
Documents, pursuant to the terms of the Transaction Documents.
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ARTICLE X
SUPPLEMENTAL INDENTURES
Section 1001. Supplemental Indentures Not Creating a New Series
Without Consent of Noteholders. (a) Without the consent of any Noteholder and
based on an Officer's Certificate of the Issuer to the effect that such
Supplement is for one of the purposes set forth in clauses (i) through (vii)
below, the Issuer and the Indenture Trustee, at any time and from time to time,
may, with the consent of each affected Interest Rate Hedge Counterparty
(provided that the consent of an Interest Rate Hedge Counterparty shall be
required only if such proposed amendment would materially and adversely affect
the rights, duties or immunities of such Interest Rate Hedge Counterparty under
this Indenture or otherwise), enter into one or more Supplements to this
Indenture for any of the following purposes:
(i) to add to the covenants of the Issuer in this Indenture for
the benefit of the Noteholders of all Series of Notes then Outstanding
or of any Series Enhancer, or to surrender any right or power
conferred upon the Issuer in this Indenture;
(ii) to cure any ambiguity, to correct or supplement any
provision in this Indenture that may be inconsistent with any other
provision in this Indenture, or to make any other provisions with
respect to matters or questions arising under this Indenture;
(iii) to correct or amplify the description of any property at
any time subject to the Lien of this Indenture, or better to assure,
convey and confirm unto the Indenture Trustee any property subject or
required to be subjected to the Lien of this Indenture, or to subject
additional property to the Lien of this Indenture;
(iv) to add to the conditions, limitations and restrictions on
the authorized amount, terms and purposes of issue, authentication and
delivery of the Notes, as herein set forth, or additional conditions,
limitations and restrictions thereafter to be observed by the Issuer;
(v) to convey, transfer, assign, mortgage or pledge any
additional property to or with the Indenture Trustee;
(vi) to evidence the succession of the Indenture Trustee pursuant
to Article IX; or
(vii) to add any additional Events of Default or Early
Amortization Events.
Prior to the execution of any Supplement issued pursuant to this Section 1001,
the Issuer shall provide 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 Indenture Trustee shall
mail to the Noteholders of all Series of Notes then Outstanding, each Rating
Agency, the Administrative Agent, each Interest Rate Hedge Counterparty 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 1002. Supplemental Indentures Not Creating a New Series with
Consent of Noteholders.
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(a) If Section 1001 does not apply to a Supplement, then with the
consent of the Requisite Global Majority and each Interest Rate Hedge
Counterparty (provided that, in the case of each Interest Rate Hedge
Counterparty, the consent of such Interest Rate Hedge Counterparty shall be
required only if such proposed amendments would materially and adversely affect
the Interest Rate Hedge Counterparty's rights, duties or immunities under this
Indenture or otherwise), the Issuer and the Indenture Trustee may enter into a
Supplement hereto for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of modifying in
any manner the rights of the Noteholders under this Indenture; provided,
however, that no such Supplement shall, without the consent of the Noteholder of
each Note adversely affected thereby and the Series Enhancer adversely affected
thereby:
(i) reduce the principal amount of any Note, the rate of interest
thereon, amend the priority of any such payments (other than to
increase the priority thereof) required pursuant to this Indenture or
any Supplement in a manner adverse to the Noteholder, or change the
date on which or the amount of which, or the place of payment where,
or the coin or currency in which, any Note or the interest thereon, or
impair the right to institute suit for the enforcement of any such
payment on or after the Legal Final Maturity Date thereof;
(ii) reduce the percentage of Outstanding Notes or Existing
Commitments required for (a) the consent of any Supplement to this
Indenture, (b) the consent required for any waiver of compliance with
certain provisions of this Indenture or certain Events of Default
hereunder and their consequences as provided for in this Indenture or
(c) the consent required to waive any payment default on the Notes;
(iii) modify any provision of this Indenture or any Supplement
which specifies that such provision cannot be modified or waived
without the consent of the Noteholder affected thereby;
(iv) in a manner adverse to such Noteholder, modify or alter the
definition of the terms "Outstanding," "Requisite Global Majority",
"Asset Base", "Existing Commitment", "Initial Commitment", "Advance
Rate", "Aggregate Net Book Value" in this Indenture or any of the
terms used in or necessary to interpret such terms;
(v) impair or adversely affect the Collateral in any material
respect as a whole, except as otherwise permitted herein;
(vi) modify or alter Section 702(a) of this Indenture; or
(vii) permit the creation of any Lien ranking prior to or on a
parity with the Lien of this Indenture with respect to any part of the
Collateral or terminate the Lien of this Indenture on any property at
any time subject hereto or deprive in any material respect the
Noteholder of the security afforded by the Lien of this Indenture,
except as otherwise permitted in this Indenture.
Prior to the execution of any Supplement pursuant to this Section 1002, the
Issuer shall provide a written notice to each Rating Agency, the Administrative
Agent and each Interest Rate Hedge Counterparty setting forth in general terms
the substance of any such Supplement.
(b) Promptly after the execution by the Issuer and the Indenture
Trustee of any Supplement pursuant to this Section, the Indenture Trustee shall
mail to the Noteholders of the Notes, each Rating Agency, the Administrative
Agent, each Interest Rate Hedge Counterparty and each Series
57
Enhancer related to such Series, a copy of the text of such Supplement. Any
failure of the Indenture Trustee to mail such copy, or any defect therein, shall
not, however, in any way impair or affect the validity of any such Supplement.
Section 1003. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, a Supplement permitted by this
Article or the modification thereby of the trusts created by this Indenture, the
Indenture Trustee shall be entitled to receive, and shall be fully protected in
relying upon, an Opinion of Counsel stating that all conditions precedent
specified in this Indenture for the execution of such Supplement have been
satisfied. The Indenture Trustee may, but shall not be obligated to, enter into
any such Supplement which affects the Indenture Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 1004. Effect of Supplemental Indentures. Upon the execution of
any Supplement under this Article, this Indenture shall be modified in
accordance therewith, and such Supplement shall form a part of this Indenture
for all purposes, and every Noteholder of Notes theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
Section 1005. Reference in Notes to Supplemental Indentures. Notes
authenticated and delivered after the execution of any Supplement pursuant to
this Article may, and shall if required by the Issuer, bear a notation in form
approved by the Indenture Trustee as to any matter provided for in such
Supplement. If the Issuer shall so determine, new Notes so modified as to
conform, in the opinion of the Indenture Trustee, may be prepared and executed
by the Issuer and authenticated and delivered by the Indenture Trustee in
exchange for Outstanding Notes.
Section 1006. Issuance of Series of Notes. (a) The Issuer may from
time to time direct the Indenture Trustee in writing to execute and authenticate
one or more Series of Notes (each, a "Series").
(b) On or before the Series Issuance Date relating to any Series, the
parties hereto will execute and deliver a Supplement which will specify the
Principal Terms of such Series. The terms of such Supplement may modify or amend
the terms of this Indenture solely as applied to such Series, and, with the
consent of the Requisite Global Majority, may amend this Indenture as applicable
to such other Series, in accordance with Section 1002 hereof. The obligation of
the Indenture Trustee to authenticate, execute and deliver the Notes of such
Series and to execute and deliver the related Supplement is subject to the
satisfaction of the following conditions:
(i) on or before the Series Issuance Date, the Issuer shall have
given the Indenture Trustee, the Manager, the Administrative Agent,
each Rating Agency (and, if such Series is to be registered pursuant
to the Securities Act, all Rating Agencies that have rated any prior
Series), each Interest Rate Hedge Counterparty and each 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 executed by the Issuer;
(iii) the Issuer shall have delivered to the Indenture Trustee
any related Enhancement Agreement executed by each of the parties
thereto and each Series Enhancer under such Enhancement Agreement
shall have acknowledged in writing the terms of the Administration
Agreement;
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(iv) the Rating Agency Condition, if applicable, shall have been
satisfied with respect to the Series;
(v) the Issuer shall have delivered to the Indenture Trustee,
each Rating Agency, each Interest Rate Hedge Counterparty, each Series
Enhancer and, if required, any Noteholder, any Opinions of Counsel
required by the related Supplement, including without limitation with
respect to true sale, enforceability, non-consolidation and security
interest perfection issues;
(vi) the Issuer shall have delivered to the Indenture Trustee an
Officer's Certificate stating that no Early Amortization Event or
Event of Default has occurred and is then continuing (or would result
from the issuance of such additional Series) and that the issuance of
such additional Series would not result in an Early Amortization Event
or Event of Default;
(vii) such other conditions as shall be specified in the related
Supplement; and
(viii) the Issuer shall have delivered to the Indenture Trustee
an Officer's Certificate that all of the conditions specified in
clauses (i) through (vii) have been satisfied.
Upon satisfaction of the above conditions, the Indenture Trustee shall execute
the Supplement and authenticate, execute and deliver the Notes of such Series;
provided, however, that, prior to the issuance of Notes of any Series (other
than the Series 2005-1 Notes), the Issuer shall receive an Opinion of Counsel (a
copy of which Opinion of Counsel shall be delivered by the Issuer to the
Indenture Trustee) to the effect that, for U.S. federal income tax purposes, the
issuance of the Notes of such Series will not (x) adversely affect the tax
characterization as debt of any outstanding Notes of any Series for which an
Opinion of Counsel was rendered in connection with the original issuance of such
Notes to the effect that such Notes are treated as debt for federal tax purposes
and (y) such issuance will not cause the Issuer to be treated as an association
(or publicly traded partnership) taxable as a corporation; and provided further
that, notwithstanding any other provision of this Article, clauses (i), (iii)
and (iv) of this Section shall not apply to the issuance of the initial Series
of Notes or the related Supplement.
(c) Notwithstanding any other provision of this Indenture, no Subject
Notes may be issued hereunder except in a transaction or transactions (i) that
are not required to be registered under the Securities Act and (ii) to the
extent such issuance is not required to be so registered by reason of Regulation
S under the Securities Act, that would not be required to be so registered if
the interests so offered or sold were offered and sold within the United States.
Any purported issuance of any Subject Notes in violation of the immediately
preceding sentence shall be void to the greatest extent permitted under
Applicable Law.
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ARTICLE XI
NOTEHOLDERS LISTS
Section 1101. Issuer to Furnish Indenture Trustee Names and Addresses
of Noteholders. Unless otherwise provided in the related Supplement, the Issuer
will furnish or cause to be furnished to the Indenture Trustee and each Series
Enhancer (i) not more than ten (10) days after receipt of a request from the
Indenture Trustee, a list, in such form as the Indenture Trustee may reasonable
require, of the names and addresses and tax identification numbers of the
Noteholders as of such date, and (ii) at such other times as the Indenture
Trustee may request in writing, within 30 days after the receipt by the Issuer
of any such request, a list of similar form and content as of a date not more
than 15 days prior to the time such list is furnished; provided, however, that
so long as the Indenture Trustee maintains the Note Register, no such lists
shall be required to include the names and addresses received by the Indenture
Trustee in such capacity; provided, further, that if the Indenture Trustee is
the Note Registrar, all references in this Section to the Issuer shall be deemed
to refer instead to the Indenture Trustee.
Section 1102. Preservation of Information; Communications to
Noteholders. The Indenture Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Noteholders contained in the
most recent list furnished to the Indenture Trustee as provided in Section 1101
and the names and addresses of Noteholders received by the Indenture Trustee in
its capacity as Note Registrar. The Indenture Trustee may destroy any list
furnished to it as provided in Section 1101 upon receipt of a new list so
furnished.
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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
shall constitute an Early Amortization Event:
(1) The occurrence of (i) an Event of Default, or (ii) a breach by
the Seller of all of its obligations under the Contribution and
Sale Agreement or any other Transaction Document to which it is a
party, which breach materially and adversely affects the
interests of any Noteholder and which continues, if curable, for
sixty (60) days after the occurrence of such breach;
(2) a Manager Default shall have occurred and then be continuing;
(3) if on any Payment Date, the Aggregate Note Principal Balance
exceeds the Asset Base, and such condition remains unremedied for
a period of thirty (30) days;
(4) if as of any Payment Date, the Asset Base is less than
$250,000,000;
(5) as of any Payment Date, the Issuer EBIT to Issuer Cash Interest
Expense Ratio shall be less than (A) for any measurement date
prior to the Payment Date occurring in April 2007, 1.0 to 1.0; or
(B) for any measurement date on or subsequent to the Payment Date
occurring in April 2007, 1.1 to 1.0;
(6) as of any Payment Date, the Weighted Average Age of the Eligible
Containers shall be greater than eight and one-half (8.5) years;
and
(7) the occurrence of any other event or condition specified as an
Early Amortization Event in a Supplement for any Series.
If the Early Amortization Event described in either of clauses (5) or (6) has
occurred, such condition shall be deemed cured if it does not exist on any
subsequent Payment Date. Except as set forth in the immediately preceding
sentence, if an Early Amortization Event exists on any Payment Date, then such
Early Amortization Event shall, be deemed to continue until the Business Day on
which the Requisite Global Majority waives, in writing, such Early Amortization
Event. The Indenture Trustee shall promptly provide notice of any such waiver to
the Rating Agencies.
Section 1202. Remedies. If an Early Amortization Event shall have
occurred and then be continuing, the Indenture Trustee shall have in addition to
the rights provided in the Transaction Documents, all rights and remedies
provided under all applicable laws.
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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 required
pursuant to the terms of this Indenture, an Opinion of Counsel stating that in
the opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual,
he has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether such covenant
or condition has been complied with; and
(iv) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with;
provided that in the case of an opinion delivered by a law firm, such
opinion may, but need not, make such statements with regard to the
individual signing such opinion.
Section 1302. Form of Documents Delivered to Indenture Trustee. (a) In
any case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters be
certified by, or covered by the opinion of, only one such Person, or that they
be so certified or covered by only one document, but one such Person may certify
or give an opinion with respect to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion
as to such matters in one or several documents.
(b) Any certificate or opinion may be based, insofar as it relates to
legal matters, upon a certificate or opinion of, or representations by, another
Person, unless the Person providing such certificate or opinion knows that the
certificate or opinion or representations with respect to the matters upon which
such Person's certificate or opinion is based are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1303. Acts of Noteholders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture or any Supplement to be given or taken by Noteholders may be (i)
embodied in and evidenced by one or more instruments of substantially similar
62
tenor signed by such Noteholders in person or by an agent duly appointed in
writing, (ii) evidenced by the written consent or direction of Noteholders of
the specified percentage of the principal amount of the Notes, or (iii)
evidenced by a combination of such instrument or instruments; and, except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments, or consent or direction, are delivered to the
Indenture Trustee and, where it is hereby expressly required, to the Issuer.
Proof of execution of any such instrument or of a writing appointing any such
agent or of the execution of any written consent or direction shall be
sufficient for any purpose of this Indenture and conclusive in favor of the
Indenture Trustee and the Issuer, if made in the manner provided in this
Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Indenture Trustee deems sufficient.
(c) The ownership of Notes shall be proved by the Note Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Noteholder shall bind every future Noteholder of the
same Note and the Noteholder of every Note issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Indenture Trustee or the
Issuer in reliance thereon, whether or not notation of such action is made upon
such Note.
Section 1304. Inspection. (a) Upon reasonable request, the Issuer
agrees that it shall make available to any representative of the Indenture
Trustee, the Administrative Agent, any Interest Rate Hedge Counterparty 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 Managed Containers and copies of all Leases or other
documents relating thereto at the times and in accordance with the provisions of
the Management Agreement. Each Noteholder, the Administrative Agent, each Series
Enhancer, each Interest Rate Hedge Counterparty and the Indenture Trustee agrees
that it and its Affiliates and their respective shareholders, directors, agents,
representatives, accountants and attorneys shall keep confidential any matter of
which any of them becomes aware through such inspections or discussions (unless
readily available from public sources that did not receive such information from
such Person or otherwise in its possession from a source not having any
confidentiality agreement with the Issuer or the Manager with respect thereto),
except as may be otherwise required by regulation, law or court order or
required by appropriate governmental authorities or as necessary to preserve or
exercise its rights or security under or to enforce the Transaction Documents,
provided that the foregoing shall not limit the right of any Noteholder, any
Series Enhancer or any Interest Rate Hedge Counterparty, as the case may be, to
make such information available to its regulators, securities rating agencies,
and to reinsurers and credit and liquidity providers whom such party reasonably
believes will respect the confidential nature of such information and from whom
such party has requested confidential treatment of such information. Any expense
incident to the reasonable exercise by the Indenture Trustee, the Administrative
Agent, any Series Enhancer, any Interest Rate Hedge Counterparty or any
Noteholder of any right under this Section shall be done 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 to make available on a reasonable basis to
the Indenture Trustee, Administrative Agent, each Series Enhancer and each
Interest Rate Hedge Counterparty a
63
Managing Officer for the purpose of answering reasonable questions respecting
recent developments affecting the Issuer.
Section 1305. Limitation of Right. Except as expressly set forth in
this Indenture, this Indenture shall be binding upon the Issuer, the Noteholders
and their respective successors and permitted assigns and shall not inure to the
benefit of any Person other than the parties hereto, the Noteholders and the
Manager as provided herein. Notwithstanding the previous sentence, the parties
hereto, the Seller and the Manager acknowledge that each Interest Rate Hedge
Counterparty and any Series Enhancer for a Series of Notes is an express third
party beneficiary hereof entitled to enforce its rights hereunder as if actually
a party hereto.
Section 1306. Severability. If any provision of this Indenture is held
to be in conflict with any applicable statute or rule of law or is otherwise
held to be unenforceable for any reason whatsoever, such circumstances shall not
have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other
provision or provisions herein contained invalid, inoperative, or unenforceable
to any extent whatsoever.
The invalidity of any one or more phrases, sentences, clauses or
Sections of this Indenture shall not affect the remaining portions of this
Indenture, or any part thereof.
Section 1307. Notices. (a) All demands, notices, instructions,
directions and communications hereunder shall be in writing, personally
delivered, or by facsimile (with subsequent telephone confirmation of receipt
thereof), or sent by internationally recognized overnight courier service to:
Manager: TAL International Container Corporation
000 Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attn: Chand Khan, Vice President and Chief
Financial Officer
Fax: 000-000-0000
with a copy to:
TAL International Group, Inc.
000 Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attn: Xxxx X. Xxxxxxx, Vice President, General
Counsel & Secretary
Fax: 000-000-0000
Issuer: TAL Advantage I LLC
000 Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attn: Chand Khan
64
with a copy to:
TAL International Container Corporation
000 Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000-0000
Attn: Chand Khan, Vice President and Chief
Financial Officer
Fax: 000-000-0000
Indenture Trustee: U.S. Bank National Association
00 Xxxxxxxxxx Xxxxxx
Xx. Xxxx, Xxxxxxxxx 00000
Attention: TAL
Advantage I, LLC, Variable Rate
Secured Notes
Fax: 000-000-0000
Administrative Fortis Capital Corp.
Agent: Three Stamford Plaza
000 Xxxxxxx Xxxxxxxxx
Xxxxxxxx, XX 00000
Attn: Loan Administration
Fax: 000-000-0000
With a copy to:
Fortis Bank (Nederland) N.V.
Xxxxxxxxxx 00
X.X. Xxx 000
0000 XX Xxxxxxxxx
Xxx Xxxxxxxxxxx
Attn: Aviation and Intermodal Finance Group
Fax: 00 00 000 0000
Phone: 00 00 000 0000
Series Enhancer: at the address set forth in the related
Enhancement Agreement
Interest Rate Hedge To its address as set forth in the applicable
Counterparty: Interest Rate Hedge Agreement
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 certified first class mail, postage prepaid (return
receipt requested), or by courier, or by facsimile, with subsequent telephone
confirmation of receipt thereof, in each case at the address of such Noteholder
as shown in the Note Register or to the telephone and fax number furnished by
such Noteholder. Notice shall be effective and
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deemed received (a) two (2) days after being delivered to the courier service,
if sent by courier, (b) upon receipt of confirmation of transmission, if sent by
fax, or (c) when delivered, if delivered by hand. Any rights to notices conveyed
to a Rating Agency pursuant to the terms of this Indenture with respect to any
Series or Class shall terminate immediately if such Rating Agency no longer has
a rating outstanding with respect to such Series or Class.
Section 1308. Consent to Jurisdiction. ANY LEGAL SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE, OR ANY TRANSACTION
CONTEMPLATED HEREBY, MAY BE INSTITUTED IN ANY FEDERAL OR STATE COURT IN THE
COUNTY OF NEW YORK, STATE OF NEW YORK AND EACH PARTY HERETO HEREBY WAIVES ANY
OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH
SUIT, ACTION OR PROCEEDING, AND, SOLELY FOR THE PURPOSES OF THIS INDENTURE, EACH
PARTY HERETO HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF ANY SUCH COURT IN
ANY SUCH SUIT, ACTION OR PROCEEDING.
Section 1309. Captions. The captions or headings in this Indenture are
for convenience only and in no way define, limit or describe the scope or intent
of any provisions or sections of this Indenture.
Section 1310. Governing Law. THE INDENTURE SHALL BE CONSTRUED BY AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, INCLUDING
SECTION 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW BUT OTHERWISE WITHOUT
GIVING EFFECT TO THE PRINCIPLES OF CONFLICTS OF LAW, AND THE RIGHTS, OBLIGATIONS
AND REMEDIES OF THE PARTIES HERETO SHALL BE DETERMINED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK.
Section 1311. No Petition. The Indenture Trustee, on its own behalf,
hereby covenants and agrees, and each Noteholder by its acquisition of a Note
shall be deemed to covenant and agree, that it will not institute (or cause or
direct or solicit any Person to institute) against the Issuer any bankruptcy,
reorganization, arrangement, insolvency or liquidation proceedings, or other
proceedings under any federal or state bankruptcy or similar law, at any time
other than on a date which is at least one (1) year and one (1) day after the
later of (a) the last date on which any Note of any Series was Outstanding and
(b) the date on which all amounts owing to the Series Enhancers pursuant to the
terms of the Indenture and the Insurance Agreements have been paid in full.
Section 1312. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES, AS AGAINST THE OTHER PARTY HERETO, ANY RIGHTS IT MAY HAVE TO
A JURY TRIAL IN RESPECT OF ANY CIVIL ACTION OR PROCEEDING (WHETHER ARISING IN
CONTRACT OR TORT OR OTHERWISE), INCLUDING ANY COUNTERCLAIM, ARISING UNDER OR
RELATING TO THIS INDENTURE OR ANY OTHER TRANSACTION DOCUMENT, INCLUDING IN
RESPECT OF THE NEGOTIATION, ADMINISTRATION OR ENFORCEMENT HEREOF OR THEREOF.
Section 1313. Waiver of Immunity. To the extent that any party hereto
or any of its property is or becomes entitled at any time to any immunity on the
grounds of sovereignty or otherwise from any legal actions, suits or
proceedings, from set-off or counterclaim, from the jurisdiction or judgment of
any competent court, from service of process, from execution of a judgment, from
attachment prior to judgment, from attachment in aid of execution, or from
execution prior to judgment, or other legal process in any jurisdiction, such
party, for itself and its successors and assigns and its property, does hereby
irrevocably and unconditionally waive, and agrees not to plead or claim, any
such immunity with respect to its obligations, liabilities or any other matter
under or arising out of or in
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connection with this Indenture, the other Transaction Documents or the subject
matter hereof or thereof, subject, in each case, to the provisions of the
Transaction Documents and mandatory requirements of Applicable Law.
Section 1314. Judgment Currency. The parties hereto (A) acknowledge
that the matters contemplated by this Indenture are part of an international
financing transaction and (B) hereby agree that (i) specification and payment of
Dollars is of the essence, (ii) Dollars shall be the currency of account in the
case of all obligations under the Transaction Documents unless otherwise
expressly provided herein or therein, (iii) the payment obligations of the
parties under the Transaction Documents shall not be discharged by an amount
paid in a currency or in a place other than that specified with respect to such
obligations, whether pursuant to a judgment or otherwise, except to the extent
actually received by the Person entitled thereto and converted into Dollars by
such Person (it being understood and agreed that, if any party hereto shall so
receive an amount in a currency other than Dollars, it shall (A) if it is not
the Person entitled to receive payment, promptly return the same (in the
currency in which received) to the Person from whom it was received or (B) if it
is the Person entitled to receive payment, either, in its sole discretion, (x)
promptly return the same (in the currency in which received) to the Person from
whom it was received or (y) subject to reasonable commercial practices, promptly
cause the conversion of the same into Dollars), (iv) to the extent that the
amount so paid on prompt conversion to Dollars under normal commercial practices
does not yield the requisite amount of Dollars, the obligee of such payment
shall have a separate cause of action against the party obligated to make the
relevant payment for the additional amount necessary to yield the amount due and
owing under the Transaction Documents, (v) if, for the purpose of obtaining a
judgment in any court with respect to any obligation under any of the
Transaction Documents, it shall be necessary to convert to any other currency
any amount in Dollars due thereunder and a change shall occur between the rate
of exchange applied in making such conversion and the rate of exchange
prevailing on the date of payment of such judgment, the obligor in respect of
such obligation will pay such additional amounts (if any) as may be necessary to
insure that the amount paid on the date of payment is the amount in such other
currency which, when converted into Dollars and transferred to New York City,
New York, in accordance with normal banking procedures, will result in
realization of the amount then due in Dollars and (vi) any amount due under this
paragraph shall be due as a separate debt and shall not be affected by or merged
into any judgment being obtained for any other sum due under or in respect of
the Transaction Documents.
Section 1315. Series Enhancer. Notwithstanding any term or provision
of this Indenture, if a Series Enhancer is not the Control Party for a Series of
Outstanding Notes, then such Series Enhancer shall not have any right to give or
withhold any consent, direction, notice, request, permission or approval under
this Indenture or to receive any notice, report or other document under this
Indenture or to exercise any other right, power or remedy under this Indenture.
Section 1316. Interest Rate Hedge Counterparty. Notwithstanding any
term or provision of this Indenture, if an Interest Rate Hedge Counterparty is
in default under the related Interest Rate Hedge Agreement, then such Interest
Rate Hedge Counterparty shall not have any right to give or withhold any
consent, direction, notice, request, permission or approval under this Indenture
or to receive any notice, report or other document under this Indenture or to
exercise any other right, power or remedy under this Indenture; provided,
however, that, notwithstanding this Section 1316, no amendment of this Indenture
shall change the rights of the Interest Rate Hedge Counterparty pursuant to
Section 1001, 1002 or Section 1006 hereof without the prior written consent of
such Interest Rate Hedge Counterparty.
Section 1317. Consents and Approvals. If a consent or approval from
any Person (other than the Issuer and other than any Noteholder) is required
under this Indenture or any Supplement, such consent or approval shall be deemed
to have been given if the Issuer does not receive a written objection from such
Person with ten (10) Business Days after a written request for such consent or
approval shall have been given.
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Section 1318. Counterparts. This Indenture may be executed in two or more
counterparts, and by different parties on separate counterparts, each of which
shall be an original, but all of which shall constitute one and the same
instrument. Delivery of an executed counterpart of this Indenture by facsimile
or by electronic means shall be equally effective as of the delivery of an
originally executed counterpart.
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IN WITNESS WHEREOF, the Issuer and the Indenture Trustee have caused
this Indenture to be duly executed and delivered, all as of the day and year
first above written.
TAL ADVANTAGE I LLC,
By: TAL International Container Corporation,
its manager
By: /s/ Chand Khan
--------------------------------------------
Name: Chand Khan
Title: Vice President and CFO
U.S. BANK NATIONAL ASSOCIATION,
not individually but solely as Indenture Trustee
By: /s/ Xxx X. Xxxxxx
---------------------------------------------
Name: Xxx X. Xxxxxx
Title: Vice President
