Eligible Container. Any Container which shall comply with each of the following requirements as of the date indicated below: (i) Purchase Parameters. Such Container conformed, on the date of its original acquisition by the Borrower, with the Purchase Parameters in effect on such date of acquisition; (ii) Casualty Losses. Such Container shall not have suffered a Casualty Loss on such date of determination; (iii) Title. The Borrower shall have had good and marketable title to such Container,
... free and clear of all Liens other than Permitted Liens, on such date of determination; (iv) Maximum Concentration of Non-Monthly Lease Agreements. If such Container is on lease, then when considered with all other Eligible Containers owned by the Borrower, the sum of the Net Book Values of all Eligible Containers then subject to a Lease for which rent is payable on other than a monthly basis shall not exceed five percent (5%) of the Aggregate Net Book Value; (v) Valid and Perfected Security Interest. The Security Agreement is effective to create in favor of the Agent a valid and perfected first security interest in such Container, subject only to Permitted Liens; (vi) Maximum Concentration of Refrigerated Containers. When considered with all other Eligible Containers owned by the Borrower, the sum of the Net Book Values of all refrigerated Containers will not exceed an amount equal to forty percent (40%) of the then Aggregate Net Book Value; (vii) Specialized Containers. Each of the following: (A) When considered with all other Eligible Containers owned by the Borrower, (i) the sum of the Net Book Values of all Specialized Containers (including refrigerated Containers) will not exceed an amount equal to seventy-five percent (75%) of the then Aggregate Net Book Value and (ii) the sum of the Net Book Values of all Specialized Containers (other than refrigerated Containers) will not exceed an amount equal to forty percent (40%) of the then Aggregate Net Book Value, and (B) all Specialized Containers (other than rolltrailers) acquired by the Borrower after the Restatement Date shall be twenty feet (20') long, forty feet (40') long, or forty-five feet (45') long; E28 Exhibit 10.9 (viii) Maximum Lessee Concentrations. If such Container is then on lease, then, when considered with all other Eligible Containers then on lease, the sum of the Net Book Values of all Eligible Containers then on lease to any single lessee will not exceed the following: (a) if such lessee is set forth on Exhibit E hereto, twelve percent (12%) of the then Aggregate Net Book Value; or (b) in all other instances not covered by clause (a), five percent (5%) of the then Aggregate Net Book Value; (ix) Maximum Concentration of Finance Leases. If such Container is then subject to the terms of a Finance Lease, then, when considered with all other Eligible Containers then on lease, the sum of the Net Book Values of all Containers subject to Finance Leases shall not exceed twenty (20%) of the then Aggregate Net Book Value; (x) Maximum Concentration of Non-USD Denominated Leases. When considered with all other Eligible Containers owned by the Borrower, the sum of the Net Book Values of all Containers subject to Non-USD Denominated Leases will not exceed an amount equal to five percent (5%) of the then Aggregate Net Book Value; (xi) Compliance with ISO; Age; Term Lease. Each New Container acquired by the Borrower on or after the Restatement Date shall comply with all of the following: (A) be an ISO compliant Container (excluding any tank containers), (B) be less than twenty-four (24) months old as of the date of acquisition by the Borrower, and (C) when considered with all other Eligible Containers owned by the Borrower, at least seventy-five percent (75%) of such New Containers (based on the sum of the Net Book Values of all such New Containers) shall then be subject to a Term Lease; provided, that clauses (B) and (C) shall not apply to the acquisition by the Borrower of $73,750,101 of New Containers from Cronos Finance (Bermuda) Limited that occurred in August 2005; (xii) Purchase Price. The purchase price for any New Container acquired by the Borrower on or after the Restatement Date shall not exceed its then fair market value; and (xiii) Lessee Bankruptcy. If such Container is then subject to a Finance Lease, the related lessee is not, to the knowledge of the Borrower or the Manager, subject to bankruptcy, insolvency or similar proceedings.
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