SECOND SUPPLEMENTAL
INDENTURE
SECOND SUPPLEMENTAL INDENTURE , dated as of
November 19, 2007 (this “ Second Supplemental
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 organized under the laws of the United
States, as indenture trustee (the “ Indenture Trustee
”).
WHEREAS,
the Issuer and the Indenture Trustee are parties to an amended and
restated indenture, dated as of April 12, 2006, as amended,
modified or supplemented from time to time in accordance with its
terms (the “ Indenture ”), providing, among
other things, for the authentication, delivery and administration
of the Notes described therein;
WHEREAS,
pursuant to Article X of the Indenture and subject to
certain conditions stated therein, the Issuer and the Indenture
Trustee may enter into a supplemental indenture in order to amend
the Indenture; and
WHEREAS,
the Issuer desires to amend the Indenture in accordance with the
terms and conditions set forth below;
NOW
THEREFORE, in consideration of the foregoing premises, the parties
mutually agree as follows:
SECTION
1.1. Defined Terms . Terms for which meanings are provided
in the Indenture are, unless otherwise defined herein or the
context otherwise requires, used in this Second Supplemental
Indenture with such meanings.
Amendments to the
Indenture
SECTION
2.1. Subject to the satisfaction of the conditions specified in
Article III below and effective as of the Second
Supplemental Indenture Effective Date (as defined herein), the
Indenture shall be amended as follows:
(a)
Amendments to Appendix A to the Indenture (Master Index of
Defined Terms) .
(i)
Definition of Additional Premium . The following defined
term is hereby inserted in Appendix A to the
Indenture:
“
Additional Premium : That Additional Premium payable to the
Series Enhancer of the Series 2005-1 Notes for
guaranteeing the Series 2005-1 Notes, as such amount is set
forth in the applicable Enhancement Agreement.”
(ii)
Definition of Additional Premium Overdue Amount . The
following defined term is hereby inserted in Appendix A
to the Indenture:
“
Additional Premium Overdue Amount : Such overdue amount
payable to the Series Enhancer of the Series 2005-1 Notes in
connection with the Additional Premium owing to the
Series Enhancer of the Series 2005-1 Notes in connection
with the Series 2005-1 Notes, as such amount is set forth in the
applicable Enhancement Agreement.”
(iii)
Definition of Amended and Restated Interest Rate Hedge
Agreement . The following defined term is hereby inserted in
Appendix A to the Indenture:
“
Amended and Restated Interest Rate Hedge Agreement : The
Amended and Restated Interest Rate Hedge Agreement, dated
November 19, 2007, between Fortis Bank SA/NV, New York Branch
and TAL Advantage I LLC.”
(iv)
Definition of Concentration Limits . Paragraph
“(a)” of the definition of “Concentration
Limits” is hereby deleted in its entirety and replaced with
the following:
“(a)
Maximum Concentration of Dry Freight Special Containers .
The sum of the Net Book Values of all Eligible Containers that are
Specialized Containers (other than refrigerated Containers) shall
not exceed twenty-five percent (25%) of the Aggregate Net Book
Value; provided, however , open top containers shall not
exceed fifteen percent (15%) of the Aggregate Net Book Value; flat
rack containers shall not exceed fifteen percent (15%) of the
Aggregate Net Book Value and tank containers shall not exceed five
percent (5%) of the Aggregate Net Book Value;”
(v)
Definition of Intercreditor Agreement . The definition of
“Intercreditor Agreement” is hereby deleted in its
entirety and replaced with the following:
“
Intercreditor Agreement : That certain Intercreditor
Agreement, dated as of April 12, 2006, as amended, modified or
supplemented from time to time in accordance with its terms, among
TAL International Container Corporation, TAL Advantage I LLC, U.S.
Bank National Association, Fortis Capital Corp. and various other
parties from time to time party thereto.”
(vi)
Definition of Interest Rate Hedge Agreement . The definition
of “Interest Rate Hedge Agreement” is hereby deleted in
its entirety and replaced with the following:
“
Interest Rate Hedge Agreement : An ISDA interest rate swap
or cap agreement, collar or other hedging instrument between the
Issuer and the Interest Rate Hedge Counterparty named therein, each
either (x) in form and substance reasonably acceptable to the
Requisite Global Majority or (y) containing provisions
substantially the same as and not inconsistent with those contained
in Part 1(a) – 1(l)(i) and Part 5 of the schedule to the
Amended and Restated Interest Rate Hedge Agreement in effect on
November 19, 2007, including any schedules, credit support
documents and confirmations prepared and delivered in connection
therewith, that complies with the guidelines set forth in
Section 628 of the
2
Indenture and
pursuant to which (i) the Issuer will receive payments from,
or make payments to, the Interest Rate Hedge Counterparty based on
LIBOR and (ii) recourse by the Interest Rate Hedge
Counterparty to the Issuer is limited to distributions of Available
Distribution Amount in accordance with the priority of payments set
forth in Section 302 and Section 806 of the Indenture, as
applicable.”
(vii)
Definition of ISDA Novation Agreement . The definition of
“ISDA Novation Agreement” is hereby deleted in its
entirety.
(viii)
Definition of Management Fee . The definition of
“Management Fee” is hereby deleted in its entirety and
replaced with the following:
“
Management Fee : For any Payment Date, an amount equal to
the sum of (i) the product of (x) ten percent (10%) and
(y) the Net Operating Income for the preceding Collection
Period (other than Container Revenues on Finance Leases),
(ii) the product of (x) five percent (5%) and
(y) Container Revenues on Finance Leases for the preceding
Collection Period and (iii) the sum of all Disposition Fees
for the preceding Collection Period.”
(ix)
Definition of Supplemental Payment . The following defined
term is hereby inserted in Appendix A to the
Indenture:
“
Supplemental Payment : That Supplemental Payment payable to
the Series Enhancer of the Series 2005-1 Notes in
connection with the Series 2005-1 Notes, as such amount is set
forth in the applicable Enhancement Agreement.”
(x)
Definition of Supplemental Payment Overdue Amount . The
following defined term is hereby inserted in Appendix A
to the Indenture:
“
Supplemental Payment Ov
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