EXHIBIT 4.33


 


MANAGEMENT AGREEMENT


 






 


between


 


TAL INTERNATIONAL CONTAINER CORPORATION


Manager


 


and


 


TAL ADVANTAGE III LLC


Owner


 






 


Dated as of

October 23, 2009


 

















 


TABLE OF CONTENTS


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
  Section 1.

  	
  Definitions

  	
  1

  
	
   

  	
   

  	
   

  
	
  Section 2.

  	
  Appointment
  of the Manager

  	
  1

  
	
   

  	
   

  	
   

  
	
   

  	
  2.1

  	
  Appointment
  of Manager

  	
  1

  
	
   

  	
  2.2

  	
  Appointment
  of Subservicers

  	
  2

  
	
   

  	
  2.3

  	
  Retention
  of Title

  	
  2

  
	
   

  	
  2.4

  	
  Exclusive
  Representation of Owner

  	
  2

  
	
   

  	
   

  	
   

  
	
  Section 3.

  	
  Manager’s
  Services with Respect to the Managed Containers

  	
  2

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  3.1

  	
  Non-Discrimination

  	
  2

  
	
   

  	
  3.2

  	
  Terms
  of Lease Agreements

  	
  3

  
	
   

  	
  3.3

  	
  Leasing

  	
  3

  
	
   

  	
  3.4

  	
  Maintenance
  and Repair

  	
  4

  
	
   

  	
  3.5

  	
  Compliance
  With Law

  	
  4

  
	
   

  	
  3.6

  	
  Markings

  	
  4

  
	
   

  	
  3.7

  	
  Casualty
  Losses; Sale of Managed Containers; Lost or Destroyed Containers

  	
  4

  
	
   

  	
  3.8

  	
  Sales
  of Managed Containers

  	
  5

  
	
   

  	
  3.9

  	
  Insurance

  	
  5

  
	
   

  	
  3.10

  	
  Books
  and Records; Inspection of Books and Records; Inspection of Managed
  Containers; Back-up Tape

  	
  6

  
	
   

  	
  3.11

  	
  Concentration
  Account and Payment Instructions

  	
  7

  
	
   

  	
  3.12

  	
  Identification
  of Funds in the Concentration Account

  	
  8

  
	
   

  	
  3.13

  	
  Transfer
  of Funds Received by the Manager

  	
  8

  
	
   

  	
  3.14

  	
  Time
  and Attention to Duties

  	
  8

  
	
   

  	
  3.15

  	
  OFAC

  	
  8

  
	
   

  	
   

  	
   

  
	
  Section 4.

  	
  Reporting
  Obligations of the Manager

  	
  9

  
	
   

  	
   

  	
   

  
	
   

  	
  4.1

  	
  Reports
  Due from the Manager

  	
  9

  
	
   

  	
  4.2

  	
  Manager
  Advances

  	
  10

  
	
   

  	
   

  	
   

  
	
  Section 5.

  	
  Deposits
  to Trust Account; Payment of Management Fee

  	
  11

  
	
   

  	
   

  	
   

  
	
   

  	
  5.1

  	
  Deposits

  	
  11

  
	
   

  	
  5.2

  	
  Compensation
  of Manager

  	
  11

  
	
   

  	
   

  	
   

  
	
  Section 6.

  	
  Term

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 7.

  	
  Reserved

  	
  13

  
	
   

  	
   

  	
   

  
	
  Section 8.

  	
  Representations
  and Warranties; Covenants

  	
  13

  
	
   

  	
   

  	
   

  
	
   

  	
  8.1

  	
  Manager
  Representations

  	
  13

  
	
   

  	
  8.2

  	
  Owner
  Representations

  	
  15

  



 


i

















 


TABLE
OF CONTENTS


(continued)


 


	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  
	
   

  	
  8.3

  	
  Covenants
  of the Manager

  	
  16

  
	
   

  	
   

  	
   

  
	
  Section 9.

  	
  Manager
  Default

  	
  17

  
	
   

  	
   

  	
   

  
	
   

  	
  9.1

  	
  Manager
  Default

  	
  17

  
	
   

  	
  9.2

  	
  Remedies

  	
  20

  
	
   

  	
  9.3

  	
  Transfer
  of Managed Containers

  	
  20

  
	
   

  	
  9.4

  	
  Power
  of Attorney

  	
  21

  
	
   

  	
  9.5

  	
  Owner
  Power of Attorney

  	
  22

  
	
   

  	
   

  	
   

  
	
  Section 10.

  	
  No
  Partnership

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 11.

  	
  No
  Warranties

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 12.

  	
  Non-Exclusivity

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 13.

  	
  Assignment

  	
  23

  
	
   

  	
   

  	
   

  
	
  Section 14.

  	
  Indemnification

  	
  23

  
	
   

  	
   

  	
   

  
	
   

  	
  14.1

  	
  By
  the Owner

  	
  23

  
	
   

  	
  14.2

  	
  By
  the Manager

  	
  24

  
	
   

  	
   

  	
   

  
	
  Section 15.

  	
  No
  Bankruptcy Petition Against the Owner

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 16.

  	
  Notices

  	
  25

  
	
   

  	
   

  	
   

  
	
  Section 17.

  	
  Governing
  Law; Consent to Jurisdiction

  	
  26

  
	
   

  	
   

  	
   

  
	
   

  	
  17.1

  	
  Governing
  Law

  	
  26

  
	
   

  	
  17.2

  	
  Consent
  to Jurisdiction

  	
  26

  
	
   

  	
  17.3

  	
  Waiver
  of Jury Trial

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 18.

  	
  Successors
  and Assigns

  	
  26

  
	
   

  	
   

  	
   

  
	
  Section 19.

  	
  Severability

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 20.

  	
  Entire
  Agreement; Amendments; Waiver

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 21.

  	
  Counterparts

  	
  27

  
	
   

  	
   

  	
   

  
	
  Section 22.

  	
  Intended Third Party Beneficiaries

  	
  27

  



 


ii

















 


Table of Contents


(continued)


	
   

  	
   

  	
   

  
	
  EXHIBIT A – MANAGER REPORT

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT B – AFFILIATES OF MANAGER AND APPROVED SUBSERVICERS

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT C – CREDIT AND COLLECTION POLICY

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT D – AGREED UPON PROCEDURES

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
  EXHIBIT
  E – DEPRECIATION POLICY

  	
   

  	
   

  



 


iii

















 


This MANAGEMENT
AGREEMENT, dated as of October 23, 2009 (as amended, modified or
supplemented from time to time in accordance with the terms hereof, this
“Agreement”), between TAL ADVANTAGE III LLC, a limited liability company
organized and existing under the laws of the State of Delaware (together with
its successors and permitted assigns, the “Owner” or the “Issuer”) and TAL
INTERNATIONAL CONTAINER CORPORATION, a Delaware corporation (together with its
successors and permitted assigns, “Manager”).


 


W I T N E S S E T H


 


WHEREAS, the Owner is the
owner of the Managed Containers; and


 


WHEREAS, the Manager is
in the business of leasing Containers to shipping lines and other container
users, and is experienced in administration of a container leasing business;
and


 


WHEREAS, the Owner wishes
to contract with the Manager for the purposes of (i) managing the
operation and leasing of the Managed Containers, and (ii) performing other
administrative duties for the Owner; and


 


WHEREAS, the Manager has
agreed to manage the Owner’s business including the Managed Containers and to
operate and lease out the Managed Containers as part of the Manager’s Container
Fleet and to perform other administrative duties for the Owner; and


 


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


 


Section 1.                                            Definitions. 
Terms capitalized but not defined herein shall have the meanings
ascribed thereto in Appendix A to that certain Indenture, dated as of
October 23, 2009, between the Issuer and Wells Fargo Bank, National
Association, as Indenture Trustee (as amended, restated or otherwise modified
from time to time in accordance with the terms thereof, the “Indenture”), as
such Appendix A may be amended, supplemented or otherwise modified from time to
time in accordance with the provisions of the Indenture.


 


Section 2.                                            Appointment of the Manager.


 


2.1                                 Appointment of Manager. 
The Owner hereby exclusively (i) appoints the Manager as its agent
to manage and administer its business, and to manage the Managed Containers,
including performance of all of the Owner’s duties and observance of all of the
Owner’s obligations under the Indenture and the other Transaction Documents to
which it is a party, and (ii) grants to the Manager the authority on
behalf of the Owner to enter into, administer, enforce and terminate Lease
Agreements relating to the Managed Containers, to sell, transfer or otherwise
dispose of and enforce the Owner’s rights with respect to the Managed
Containers, to collect monies and make disbursements on behalf of the Owner,
and to manage its finances, all such activities described in clauses
(i) and (ii) to be conducted on the terms and subject to the
conditions set forth herein.  The Manager
hereby agrees to so manage the Managed Containers and administer the Owner’s
business, including performance of all of the Owner’s duties and observance of
all of the Owner’s obligations under the Indenture and the other 


 

















 


Transaction Documents to
which the Owner is a party, upon the terms and conditions herein; provided, however, that nothing contained
in this Agreement or any other Transaction Document shall be or shall be
construed to be either (x) an express or implied guaranty by the Manager
of the Notes or any other Outstanding Obligations incurred by the Owner or
(y) an express or implied agreement to make payments on the Notes or other
Outstanding Obligations.


 


2.2                                 Appointment of Subservicers. 
In performing its duties hereunder, the Manager may, subject to the
restrictions set forth herein, contract with any of its Affiliates listed on
Exhibit B hereto to provide the services required to be rendered by the
Manager hereunder (each resulting agreement, a “Subservicing Agreement,” and
each Affiliate that is a party to such Subservicing Agreement, a
“Subservicer”); provided, however,
that (i) the Manager shall be solely responsible for the receipt and
processing of all Container Revenues, Sales Proceeds, Casualty Proceeds and
other Collections, (ii) each Subservicing Agreement (but not other
agreements to which the Manager may be a party) must expressly provide that
such Subservicing Agreement may be terminated by the Requisite Global Majority
if a Manager Default has occurred and is then continuing, and (iii) the
Manager shall be solely responsible for the payment to each such Subservicer of
any and all compensation, expenses and indemnities to each such
Subservicer.    The Manager will not
contract with any other Person to provide any of the services to be rendered by
the Manager to the Owner hereunder without the prior written consent of the
Requisite Global Majority. 
Notwithstanding any provision of such services by its Subservicers, the
Manager shall remain obligated and liable to the Owner, the Indenture Trustee,
each Series Enhancer (so long as such Series Enhancer is the Control
Party for a Series of Outstanding Notes) and the Noteholders for the
management and the administration of the Managed Containers in accordance with
the provisions of this Agreement, without diminution of such obligation or
liability by virtue of such agreements or arrangements with its Subservicers,
to the same extent and under the same terms and conditions as if the Manager
alone were servicing and administering the Managed Containers.


 


2.3                                 Retention of Title. 
The Owner shall at all times retain full legal and equitable title to
the Managed Containers, notwithstanding the management thereof by Manager
hereunder.  Manager shall not make
reference to, or otherwise deal with or treat, the Managed Containers in any
manner except in conformity with this Agreement.


 


2.4                                 Exclusive Representation of Owner. 
Except as otherwise provided in this Agreement, during the term of this
Agreement, the Manager will be the exclusive agent of the Owner with respect to
the Owner’s business and with respect to the management of the Managed
Containers and the Owner agrees that it will not engage any other Person to
perform, or pay any consideration to any other Person for performing, the same
or similar services with respect to the owner’s business or with respect to the
Managed Containers.


 


Section 3.                                            Manager’s Services with Respect to the
Managed Containers.


 


3.1                                 Non-Discrimination. 
In performing its duties pursuant to this Agreement, the Manager shall
exercise substantially the same degree of skill and care with which it
services, leases and manages containers held for its own account and consistent
with the reasonable commercial practices of a prudent container lessor engaged
in the administration, leasing and servicing of shipping containers (such
standard of care, the “Servicing Standard”). 
Without 


 


2

















 


limiting the foregoing,
the Manager shall not knowingly discriminate in favor of or against the Managed
Containers in connection with the management and operation of the Container
Fleet.


 


3.2                                 Terms of Lease Agreements. 
Without prejudice to the rights and title of the Owner with respect to
the Managed Containers, the Manager may arrange for the leasing of the Managed
Containers pursuant to Lease Agreements that are in its own name as principal,
and not as agent of the Owner; provided,
however, that it is understood and agreed that the Manager is acting
thereunder solely as agent of the Owner. The Manager shall have sole discretion
to determine to whom to lease, sell or otherwise dispose of the Managed
Containers, to determine the per diem rates and other charges to be paid and
all other terms and conditions of the Lease Agreements and to renegotiate,
amend and consent to waivers under such Lease Agreements.  The Manager shall invoice and collect from
lessees all rental payments and other amounts due under and pursuant to the
Lease Agreements relating to the Managed Containers.


 


3.3                                 Leasing.  The Manager
shall operate and lease the Managed Containers as part of its Container Fleet
and shall perform all managerial and administrative functions and provide or
arrange for the provision of all services and documentation of any nature which
it considers necessary or desirable for such operation and leasing.  The Manager shall, in compliance with the Servicing
Standard, take all actions the Manager deems appropriate to ensure compliance
by the Lessees with the terms of any Lease Agreement, including the exercise of
the rights of the lessor thereunder.


 


3.3.1                        With respect to the Managed Containers,
the Manager shall use reasonable efforts to include in the terms of lease
agreements with lessees a provision requiring lessees to comply with Applicable
Law affecting the Managed Containers and their use, operation and storage while
the Managed Containers are on-hire and the Manager shall use reasonable efforts
to include in the terms of depot agreements with third-party storage and repair
depots a provision requiring the depots to comply with Applicable Law affecting
the Managed Containers while the Managed Containers are off-hire and stored in
the depot.


 


3.3.2                        The Manager will monitor and record the
status of the Managed Containers in the same manner as for containers held for
its own account, i.e., for each Managed Container it will record the on-hire
location, the date of on-hire and the lessee to whom the Managed Container is
on-hire, the off-hire date of the Managed Container and the off-hire location,
and the depot where the Managed Container is located while off-hire.


 


3.3.3                        The Manager shall follow the Credit and
Collection Policy with respect to the leasing of the Managed Containers and,
subject to the terms of such Credit and Collection Policy, the Manager may, in
its sole discretion (a) determine and approve the creditworthiness of any
lessee (though the Manager makes no representation or warranty to the Owner as
to the solvency or financial stability of any lessee), (b) determine that
any amount due from any lessee is not collectible, (c) institute and
prosecute legal proceedings against a lessee as permitted by Applicable Law,
(d) terminate or cancel any Lease Agreement, (e) recover possession
of the Managed Containers from any lessee, (f) settle, compromise or
release any proceeding or claim against a lessee in the name of the Manager or,
if appropriate, in the name of the Owner, or (g) reinstate any Lease
Agreement.


 


3

















 


3.3.4                        In performing its duties under this
Agreement, the Manager shall use reasonable efforts to comply with the
Concentration Limits when entering into new Lease Agreements and, in any event,
shall not, without the prior written consent of the Requisite Global Majority,
lease all, or substantially all, of the Managed Containers to an Affiliate of
the Manager or to a single lessee.


 


3.3.5                        The Manager hereby acknowledges that the
Manager and its Affiliates are holding the leases relating to the Managed
Containers (but only to the extent that such leases relate to the Managed
Containers), on behalf of, and for the benefit of, the Indenture Trustee.


 


3.4                                 Maintenance and Repair. 
The Manager shall keep, or, with respect to Managed Containers on lease,
cause the related lessee, to keep, each Managed Container (i) in good
repair and working order in a manner consistent with past practices, and
(ii) in accordance with its maintenance and repair standards for the
Container Fleet.  The Manager shall make,
or cause to be made, all necessary inspections, repairs, replacements,
additions and improvements to each Managed Container as are commercially reasonable
for the conduct of its business in accordance with the ordinary course of the
Manager’s business consistent with past practices; it being understood that it
may, in some cases, be commercially reasonable not to repair a Managed
Container.  The Manager shall institute
and prosecute claims against the manufacturers and sellers of the Managed
Containers as the Manager may consider advisable for breach of warranty, any
defect in condition, design, operation or fitness or any other nonconformity
with the terms of manufacture.  The
Manager shall have no liability to the Owner for any such breach of any
manufacturer’s or seller’s or any other Person’s warranty or for any such
defect in condition, design, operation or fitness or any other nonconformity
with the terms of manufacture.  The
Manager shall at all times use the Managed Containers, and require the related
lessee to use the Managed Containers, in accordance with good operating
practices.  The Manager shall not
knowingly use (or knowingly permit the lessees to use) the Containers for storage
or transportation of contraband in violation of applicable United States law.


 


3.5                                 Compliance With Law. 
The Manager will comply, in all material respects, with all acts, rules,
regulations, orders, decrees and directions of any governmental authority that
are applicable to the Lease Agreements and the Managed Containers or any part
thereof except for any noncompliance which would not reasonably be expected to
result in a Material Adverse Change; provided, however, that the Manager may contest any act, rule,
regulation, order, decree or direction in any reasonable manner which shall not
materially and adversely affect the Noteholders or any Series Enhancer;
and provided, further, that such contests shall be in
good faith by appropriate proceedings and as to which adequate reserves in
accordance with GAAP have been established, but only so long as such
proceedings shall not, individually or in the aggregate, subject any
Series Enhancer, any Noteholder or Indenture Trustee to any civil or
criminal liability.


 


3.6                                 Markings.  The Manager
shall ensure that each Managed Container shall carry its Container
Identification Number and other markings as may be required for its operation
in marine and intermodal shipping.


 


3.7                                 Casualty Losses; Sale of Managed
Containers;  Lost or Destroyed Containers. 
If any Managed Container shall suffer a Casualty Loss while it is
subject to the terms of this 


 


4

















 


Agreement, the Manager shall remit to the Trust
Account, in accordance with the provisions of Section 5.1.1 hereof, the
Casualty Proceeds (net of any expenses, taxes and reserves in respect thereof),
if any, received as a consequence of such Casualty Loss.


 


3.8                                 Sales of Managed Containers. 
The Manager shall have the ability in its sole discretion to sell or
otherwise dispose of any of the Managed Containers, subject to compliance with
the applicable provisions of Sections 404 and 606 of the Indenture.  The Manager shall remit to the Trust Account,
in accordance with the provisions of Section 5.1.1 hereof, the Sales
Proceeds (net of any expenses, taxes or reserves in respect thereof) received
as a consequence of any such sale.


 


3.9                                 Insurance.  (a) The Manager will, in a
manner consistent with its normal procedures and the Servicing Standard,
(i) effect and maintain with financially sound and reputable companies
general liability insurance, insuring the Issuer and the Indenture Trustee (for
the benefit of the Noteholders) against liability for personal injury and
property damage liability, caused by, or relating to, the Managed Containers
then off-lease, with such levels of coverage and deductibles that are
consistent with the levels in effect as of the Closing Date, and (ii) have
a standard form of lease agreement that requires each lessee to maintain
(1) physical damage insurance in an amount not less than the stipulated
loss value agreed to by the lessee of the Managed Containers on lease to it,
and (2) comprehensive general liability insurance, including contractual liability,
against claims for bodily injury or death and property damage.  Each of the Indenture Trustee and the
Administrative Agent reserve the right (but shall not have the obligation) to
obtain, at the direction of the Requisite Global Majority and at the Manager’s
expense, insurance of the type described in clause (i) above if the
Manager shall fail to obtain such coverage in the specified amounts.  However, the Indenture Trustee or the
Administrative Agent (as applicable) will notify the Manager prior to obtaining
such insurance.


 


(b)                                 All insurance maintained by the Manager
for loss or damage of the Managed Containers shall provide that losses, if any,
shall be payable to the Issuer and the Indenture Trustee or its designee as an
additional loss payee and the Manager shall utilize its reasonable efforts to
have all checks relating to any such losses delivered promptly to the Indenture
Trustee.  The Issuer and the Indenture
Trustee shall be named as additional insureds with respect to all such
liability insurance maintained by the Manager (or on behalf of the Manager by a
direct or indirect parent company thereof). 
The Manager shall pay the premiums with respect to all such insurance
and deliver to Indenture Trustee evidence of such insurance coverage as
contemplated by Section 4.1.4.  The
Manager shall cause to be provided to each of the Indenture Trustee and the
Administrative Agent, not less than fifteen (15) days prior to the scheduled
expiration or lapse of such insurance coverage, evidence reasonably satisfactory
to the Administrative Agent of renewal or replacement coverage.  The Manager shall use its commercially
reasonable efforts to have each insurer agree, by endorsement upon the policy
or policies issued by it or by independent instrument furnished to the Indenture
Trustee, that (i) it will give each additional insured and the loss payee
thirty (30) days’ prior written notice of the effective date of any material
alteration, cancellation or non-renewal of such policy and (ii) in the
event that the cancellation of such coverage would result in a breach of this
Section 3.9 by the Manager, it will permit the Issuer, the Administrative
Agent and/or the Indenture Trustee to make payments to effect the continuation
of coverage upon notice of cancellation due to nonpayment of premium.  Such insurance may be effected by a policy
which covers the entire 


 


5

















 


Container Fleet, which policy shall include an
additional insured and loss payee endorsement with respect to the Managed
Containers in favor of the Indenture Trustee, for the benefit of the
Noteholders.


 


3.10                           Books and Records; Inspection of Books
and Records; Inspection of Managed Containers; Back-up Tape.


 


3.10.1                  The Manager shall maintain at its offices (which, as of
the Closing Date, are located at 100 Manhattanville Road, Purchase, New York
10577-2135 USA), such books and records (including computer records) with
respect to the Managed Containers as it maintains for the Container Fleet and
the leasing thereof, including a computer database including the Managed
Containers (containing sufficient information to generate the List of
Containers and the reports required to be delivered pursuant to this
Agreement), any Lease Agreements relating thereto, their lessees (if on-hire)
or location (if off-hire) and their Net Book Value.


 


3.10.2                  The Manager shall make available to the Owner, the
Indenture Trustee, the Administrative Agent and each Series Enhancer, for
inspection and copying, its books, records and reports relating to the Managed
Containers and copies of all Lease Agreements or other documents relating
thereto, all in the format which the Manager uses for its own operations.  The Person(s) desiring to conduct any
such inspection of the books, records and reports shall provide the Manager
with not less than (i) five (5) Business Days’ notice if a Manager
Default is not then continuing or (ii) one (1) Business Day’s notice
if a Manager Default shall have occurred and is then continuing, and shall
specify in such notice the matters to be addressed in such inspection.  All such inspections shall be conducted
during normal business hours and shall not unreasonably disrupt the Manager’s
business, and, subject to the foregoing, the Owner, Indenture Trustee, the
Administrative Agent or Series Enhancer, as applicable will be permitted
to discuss, with any Authorized Officer, Managing Officer or the Manager’s
independent accountants, the affairs, finances and accounts of the Manager as
they relate to the Managed Containers and this Agreement.  So long as no Manager Default, Early
Amortization Event or Event of Default is continuing, the Manager shall pay the
reasonable and documented costs and expenses incurred by such Person(s) in
conducting not more than one such inspection in any calendar year; provided, however, that the Manager and
the Administrative Agent shall coordinate such that, so long as no Manager
Default, Early Amortization Event or Event of Default is continuing, the
Manager shall not be responsible for paying for more than one inspection in
total per calendar year pursuant to (x) this Section 3.10.2,
(y) Section 8.3.6 and (z) the Master Repurchase Agreement, dated
as of September 17, 2009, among Wachovia Bank, National Association, as
buyer, Wells Fargo Securities, LLC, as agent, TAL International Container
Corporation, as seller, and TAL International Group, Inc, as guarantor.  In addition, the Manager shall pay the
reasonable and documented costs and expenses incurred by such Person(s) in
conducting any such examinations during the continuation of any of a Manager
Default, Early Amortization Event or Event of Default.


 


The Manager shall,
subject to the terms of the related Lease Agreements and depot agreements, make
the Managed Containers available for inspection to the Indenture Trustee and
the Administrative Agent; provided, however,
that, so long as no Manager Default, Early Amortization Event or Event of
Default is continuing, not more than one such inspection shall occur in any
twelve month period.  So long as no
Manager Default, Early Amortization 


 


6

















 


Event or Event of Default
is continuing, the Manager shall pay the reasonable and documented costs and
expenses of such Persons in conducting not more than one such inspection in any
calendar year.


 


The Owner acknowledges
that the Manager uses certain software under license from unrelated third
parties and that the Manager shall grant the Owner, the Indenture Trustee, the
Administrative Agent and each Series Enhancer access to the computer
systems and data contained therein, but not copies of the software itself.


 


3.10.3                  The Manager shall, in accordance with its then
existing disaster recovery plan, deliver periodically (but no less frequently
than weekly) to an independent data custodian (the “Data Custodian”) reasonably
satisfactory to the Administrative Agent and each Series Enhancer an
electronic copy (the “Tape”) of the following information, as of the most
recently available date, with respect to each of the Managed Containers:
(i) the Container Identification Number, (ii) if then on-lease, the
name of the lessee and the date of the related Lease Agreement, and
(iii) if then off-lease, the name and location of the depot in which
stored.  The Manager shall cause such
Data Custodian to make the most recent Tape available to the Owner, the
Indenture Trustee, the Administrative Agent and any Series Enhancer for
inspection upon reasonable notice to such Data Custodian and subject to the
Data Custodian’s customary security requirements; provided, however, that, so long as no Manager Default,
Early Amortization Event or Event of Default is continuing, not more than one
such inspection shall be made in any calendar year.  During the continuation of any of a Manager
Default, Early Amortization Event or Event of Default, the Manager shall pay
the reasonable and documented costs and expenses incurred by such
Person(s) in conducting all inspections made in accordance with the
provisions of this Section 3.10.3. 
Upon the termination of this Agreement pursuant to Section 9.2, the
Manager shall deliver or authorize the Data Custodian to deliver to each of the
Administrative Agent and the Indenture Trustee a copy of the Tape containing
information with respect to the Managed Containers as of such date.


 


3.10.4                  Liens.  The Manager
agrees not to create, incur, assume or grant, or suffer to exist, directly or
indirectly, any lien, security interest, pledge or hypothecation of any kind on
or concerning the Managed Containers, the related Lease (to the extent related
to a Managed Container), title thereto or any interest therein or in this
Agreement to any Person other than the Owner, except for Permitted
Encumbrances.  The Manager will promptly
take or cause to be taken such actions as may be necessary to discharge any
such lien that arises by, through or under the actions of the Manager in
violation of this Section 3.10.4.


 


3.11                           Concentration Account and Payment
Instructions.  The Manager shall maintain the Concentration
Account.  The Manager shall instruct all
lessees to submit all payments on the Leases directly to the Concentration
Account (or to a post office box, a lockbox or Collection Account (as defined
in the Intercreditor Agreement) from which the applicable payment items will be
removed and, within one week after receipt, deposited in the Concentration
Account).  The Manager shall not grant
any lien or encumbrance in the Concentration Account or any Collection Account
(as defined in the Intercreditor Agreement) to any Person other than the Lien
created pursuant to the Intercreditor Agreement.


 


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3.12                           Identification of Funds in the
Concentration Account.  Weekly (or more frequently at
the Manager’s option) beginning with the first full calendar week following the
Closing Date, the Manager shall identify all Container Revenues, Sales Proceeds
or Casualty Proceeds received in the Concentration Account during the preceding
week as relating to either a Managed Container (including any advance payments
of rentals for future Collection Periods) or another container managed by the
Manager.  Any such Container Revenues,
Sales Proceeds or Casualty Proceeds that have been identified as relating to a
Managed Container shall be transferred by the Manager to the Trust Account in
accordance with the procedures outlined in Section 5.1 hereof.  Prior to such transfer to the Trust Account,
all Container Revenues, Sales Proceeds and Casualty Proceeds relating to a
Managed Container received, or held by, the Manager shall be deemed to be held
by the Manager in trust for the benefit of Indenture Trustee.


 


3.13                           Transfer of Funds Received by the Manager. 
If, notwithstanding the payment instructions given by the Manager to a
lessee in the monthly invoice, lease payments or other amounts in respect of
the Managed Containers are received directly by the Manager, the Manager agrees
to hold any such lease payments or other amounts in trust and, within two (2) Business
Days after receipt, transmit and deliver to the Concentration Account (or a
related post office box or lockbox), in the form received, all cash, checks and
other instruments or writings for the payment of money so received by the
Manager.


 


3.14                           Time and Attention to Duties. 
The Manager shall devote such time and attention to the performance of
its duties hereunder as is reasonably necessary, it being understood that the
Manager shall not be required to devote all of its time or attention to the
performance of such duties, it being further understood that the Manager
manages, and may in the future manage, containers other than the Managed
Containers, either for third parties or for its own account, and may, as well,
conduct business unrelated to managing containers.  Nothing in this Agreement shall be construed
to prohibit the Manager from performing its obligations to owners of other
containers or from engaging in such (or any other) business activity.


 


3.15                           OFAC.  The Manager
shall not (i) in a manner which would violate the laws of the United
States, other than pursuant to a license issued by OFAC, lease, or consent to
any sublease of, any of the Managed Containers to any Person that is a
Sanctioned Person; or (ii) derive any of its assets or operating income
from investments in or transactions with any such Sanctioned Person.  The Manager will, immediately upon obtaining
knowledge thereof, notify the Administrative Agent of the leasing, or
subleasing, of a Managed Container to, or other use of a Managed Container by,
a Sanctioned Person.  The Manager will
allow each of the Indenture Trustee, the Deal Agent and each Noteholder to
conduct, at the expense of the Issuer, on not more than one occasion during any
twelve (12) month period and in conjunction with the examination referred to in
the first paragraph of Section 3.10.2, an audit of the screening and
monitoring process employed by the Manager to ensure compliance during the most
recently completed twelve (12) month period with the laws, rules and
regulations promulgated or imposed by OFAC. 
The Manager will, immediately upon obtaining knowledge thereof, notify
the Deal Agent of the leasing, or subleasing, of a Container to, or other use
of a Container by, a Sanctioned Person.


 


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Section 4.                                            Reporting Obligations of the Manager.


 


4.1                                 Reports Due from the Manager.


 


4.1.1                        Financial Statements. 
The Manager will maintain the Owner’s financial books and records and
prepare the Owner’s financial statements. 
The Manager will deliver to the Indenture Trustee, the Rating Agencies,
the Administrative Agent and each Series Enhancer the financial statements
required to be delivered to the Indenture Trustee pursuant to Section 625
of the Indenture.  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
quarterly financial statements, the absence of year-end adjustments.


 


4.1.2                        Manager Reports. 
On or prior to each Determination Date, the Manager shall deliver to the
Owner, the Administrative Agent, the Indenture Trustee and each Hedge
Counterparty, a report as to deposits into and instructions for payments out of
the Trust Account, substantially in the form of Exhibit A hereto
(each such report, the “Manager Report”), which report shall be certified by
the chief financial officer, controller, treasurer or other financial officer
of the Manager with primary responsibility for matters arising under this
Agreement or another authorized signatory acceptable to the Administrative
Agent.  Each such Manager Report shall
also include (a) evidence of the Manager’s compliance with the financial
covenants set forth in Sections 9.1.9, 9.1.10 and 9.1.11 hereof, which
calculations shall be based on the most recently certified quarterly financial
information, (b) accounts receivable agings, (c) top-25 lessee
concentrations, (d) a listing of the number and type of Managed Containers
then owned by the Issuer, (e) the aggregate Net Book Value of the Managed
Containers, (f) the aggregate original cost of the Managed Containers, (g) utilization
rates for both the Managed Containers and the Container Fleet, (h) other
information regarding the Container Fleet upon the reasonable request of the
Administrative Agent or the Indenture Trustee, and (i) the calculations
required to demonstrate compliance by the Issuer with clauses (3), (4), (5) and
(6) of Section 1201 of the Indenture.


 


4.1.3                        Asset Base Certificates. 
On or prior to (i) each Determination Date, and (ii) each date
on which an advance of funds to the Issuer is to be made in accordance with the
terms of a Supplement, the Manager will deliver to the Owner, the Indenture
Trustee and the Administrative Agent, an Asset Base Certificate certified by
the chief financial officer, controller, treasurer or other financial officer
of the Manager with primary responsibility for matters arising under this
Agreement or another authorized signatory acceptable to the Administrative
Agent as of the end of the month most recently ended.


 


4.1.4                        Evidence of Insurance. 
The Manager will provide confirmation of the renewal of the insurance
required by Section 3.9 hereof annually before the expiration date of such
insurance each year, and will forward copies of all certificates evidencing
renewal, and all notices of termination or non-renewal of such insurance, to
the Indenture Trustee and the Administrative Agent promptly after receipt.


 


4.1.5                        Lessees in Container Fleet; Other Reports. 
Within one hundred twenty (120) days after the end of each fiscal year
of the Manager, the Manager shall send to the Administrative Agent a listing of
all Lessees in the Container Fleet.  The
Manager shall provide,


 


9

















 


in the format which the Manager uses for its own
operations, any reports filed by the Manager with the Securities and Exchange
Commission and any other reports and information which are reasonably requested
by the Owner, the Indenture Trustee, any Series Enhancer, each Hedge
Counterparty, the Administrative Agent or the Rating Agencies provided that
such reports and information are reasonably available from the books and
records of the Owner and can be generated by the Manager’s then existing data
processing system.


 


4.1.6                        Independent Accountant’s Report. 
The Manager shall, at its sole cost and expense, deliver to the Issuer,
the Administrative Agent, the Indenture Trustee, and each Series Enhancer
a report from a firm of nationally recognized independent certified public
accountants, who may also render other services to TAL International Group or
any of its affiliates, on or before May 30th of each year (or 150 days after the end of the
Manager’s fiscal year, if other than December 31st of each year),
beginning on May 30, 2010, with respect to the twelve months ended on the
preceding December 31 (or other applicable fiscal year-end date) (or such
other period as shall have elapsed from the Closing Date to the date of such
statement), a report (the “Accountants’ Report”) addressed to the Board of
Directors of TAL International Group, to the effect that such firm of
accountants has audited the books and records of TAL International Group, and
issued its report thereon in connection with the audit report on the
consolidated financial statements of TAL International Group and (1) such
audit was made in accordance with generally accepted auditing standards, and
accordingly included such tests of the accounting records and such other
auditing procedures as such firm considered necessary in the circumstances; (2) the
firm is independent of TAL International Group within the meaning of the Code
of Professional Ethics of the American Institute of Certified Public
Accountants; and (3) specifies the results of the application of such
agreed upon procedures, as the Administrative Agent shall reasonably agree from
time to time, relating to (i) maintenance of the separateness of the Issuer
for bankruptcy remoteness purposes and (ii) three selected Manager Reports
and Asset Base Certificates delivered during the preceding year, to achieve the
objectives specified on Exhibit D hereto.


 


4.1.7                        Direction of Investments. 
The Manager in its sole discretion and in accordance with its normal
business practices shall direct the Indenture Trustee, in accordance with the
terms of the Indenture, as to which Eligible Investments it shall invest funds
on deposit in the Trust Account, the Restricted Cash Account and each Series Account.


 


4.1.8                        Interest Rate Hedge Agreements. 
When required by Section 628 of the Indenture, the Manager shall
arrange for the Owner to enter into Interest Rate Hedge Agreements (which
Interest Rate Hedge Agreements must be in form and substance reasonably
satisfactory to the Administrative Agent) that comply with the provisions of
that Section.


 


4.2                                 Manager Advances. 
The Manager may, at its option, if the funds then on deposit in the
Trust Account, any Series Account or the Restricted Cash Account are
insufficient to make any payments due on the next succeeding Payment Date
pursuant to Section 302 of the Indenture, remit to the Trust Account by
1:00 p.m. New York time on each Determination Date, any amount of funds (a
“Manager Advance”); provided,
that (A) the Manager deems such Manager Advance to be recoverable from
delinquent rental payments owing with respect to Leases of the Managed
Containers and (B) unless otherwise consented to in writing in each
instance by the Administrative Agent or the Indenture Trustee (acting at the
direction of the


 


10

















 


Requisite Global
Majority); the aggregate amount of all Manager Advances outstanding at any time
shall not exceed fifty percent (50%) of the outstanding balance of all Lease
receivables which are less than ninety (90) days delinquent.  Under no circumstances shall this Section 4.2
be interpreted as obligating the Manager to make any Manager Advance.  The Manager shall be reimbursed for Manager
Advances on each Payment Date from amounts on deposit in the Trust Account,
subject to the priority of payments set forth in Sections 302 and 806 of the
Indenture.


 


Section 5.                                            Deposits to Trust Account; Payment of
Management Fee.


 


5.1                                 Deposits.


 


5.1.1                        Weekly Deposits to Trust Account. 
On or before the last Business Day in New York of each calendar week
beginning with the first full calendar week following the week of the Closing
Date, the Manager shall cause to be transferred from the Concentration Account
to the Trust Account an amount equal to the excess (if any) of (x) the sum
of (A) the Manager’s good faith estimate of the Container Revenues for the
Managed Containers received during the immediately preceding calendar week
(including any customer advance payments) and (B) subject to Section 311
of the Indenture, the Manager’s good faith estimate of the Sales Proceeds and
Casualty Proceeds received during the immediately preceding calendar week, over
(y) the Manager’s good faith estimate of Direct Operating Expenses for the
Managed Containers accrued during the immediately preceding calendar week (the
excess of (x) over (y), the “Estimated Net Operating Income”).  Prior to such transfer or deposit, all
Container Revenues, Sales Proceeds and Casualty Proceeds received, or held by,
the Manager with respect to the Managed Containers shall be deemed to be held
by the Manager in trust for the benefit of the Indenture Trustee.


 


On or before each
Determination Date, the Manager shall determine the excess (if any) of (x) the
aggregate amount of Container Revenues, Sales Proceeds and Casualty Proceeds
for the Managed Containers actually received during the immediately preceding
Collection Period over (y) the aggregate amount of Direct Operating
Expenses accrued during such Collection Period and to be paid in the current or
a subsequent Collection Period (the excess of (x) over (y), the “Actual
Net Operating Income”).  If the Actual
Net Operating Income for such Collection Period exceeds the Estimated Net
Operating Income for such Collection Period, then the Manager will cause to be
transferred from the Concentration Account to the Trust Account on such
Determination Date funds in an amount equal to such excess.  However, if the Estimated Net Operating
Income for such Collection Period exceeds the Actual Net Operating Income for
such Collection Period, then the Manager shall indicate so on that month’s
Manager Report and the amount of such excess (such excess, the “Excess
Deposit”) will be distributed to the Manager on the immediately succeeding
Payment Date.


 


5.2                                 Compensation of Manager.


 


5.2.1                        Management Fee. 
As compensation to the Manager for the performance of its services
hereunder, the Owner shall pay to the Manager the Management Fee for the
immediately preceding Collection Period in arrears on each Payment Date (or, in
the case of the first payment of the Management Fee, for the payment thereof,
commencing on the Closing Date).  Subject
to the terms and conditions of the Indenture, the Management Fee shall be


 


11

















 


payable to the Manager (to the extent not previously
withheld in accordance with the terms hereof) from amounts on deposit in the
Trust Account to the extent monies are available for the payment thereof in
accordance with the provisions of Section 302(c) of the
Indenture;  provided, however, that, as long as no Manager Default shall
have occurred and been continuing, the Manager shall be entitled to withhold in
advance, at periodic intervals more frequent than each Payment Date, the pro rata portion of the Management Fee
owing to the Manager for such interval from the actual Container Revenues,
Sales Proceeds or Casualty Proceeds received by it from lessees or
sublessees.  For the sake of clarity, to
the extent the Manager has withheld amounts from the actual Container Revenues,
Sales Proceeds or Casualty Proceeds received by it from lessees or sublessees,
then such amounts shall be deducted from the Management Fee owing to the
Manager from the Owner hereunder.  On
each Payment Date, the Manager and the Owner shall determine whether the
amounts actually paid to or withheld by the Manager during the preceding
calendar month pursuant to the terms of this Section 5.2.1 accord with the
Management Fee owing under this Agreement for such month and shall arrange that
any excess or deficiency promptly be corrected (i.e., in the case of an
overpayment to the Manager, the Manager shall promptly repay such overpayment,
and in the case of an underpayment to the Manager such underpayment shall be
added to the Management Fee payable to the Manager on such Payment Date). Upon
any resignation or termination of the Manager in accordance with the terms of
this Agreement and the other Transaction Documents, such resigning or terminated
Manager shall not be entitled to receive any Management Fee accruing on or
after the effective date of such termination or resignation and such resigning
or terminated Manager shall immediately remit to the Trust Account any portion
of the Management Fee deducted in advance by such resigning or terminated
Manager which did not accrue as of the date following such termination or
resignation on which a replacement Manager has assumed the responsibilities of
the resigning or terminated Manager.


 


5.2.2                        Business Day. 
Notwithstanding anything to the contrary contained herein, if any date
on which a payment becomes due hereunder is not a Business Day, then such
payment may be made on the next succeeding Business Day with the same force and
effect as if made on such scheduled date.


 


5.2.3                        No Set-Off, Counterclaim, etc. 
The Manager’s obligation under this Agreement to transfer to or to
deposit any amount to the Trust Account shall (subject to the withholding of
the Management Fee as contemplated by Section 5.2.1 hereof) be absolute
and unconditional and all payments thereof shall be made free and clear of and
without any deduction for or on account of any set-off or counterclaim or any
circumstance, recoupment, defense or other right which the Manager may have
against the Owner or any other Person for any reason whatsoever (whether in
connection with the transactions contemplated hereby or any other
transactions), including without limitation, (i) any defect in title,
condition, design or fitness for use, of, or any damage to or loss or
destruction of, any Managed Container, (ii) any insolvency, bankruptcy,
moratorium, reorganization or similar proceeding by or against the Manager or
any other Person, or (iii) any other circumstance, happening or event
whatsoever, whether or not unforeseen or similar to any of the foregoing.


 


5.2.4                        Manner of Payment. 
All payments hereunder shall be made in United States Dollars by wire
transfer of immediately available funds prior to 2:00 P.M. prevailing
Eastern Time, on the date of payment.


 


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Section 6.                                            Term.


 


6.1.1                        Term.  The Term of
this Agreement shall commence on the date hereof and shall end on the date on
which all Outstanding Obligations have been repaid, unless earlier terminated
in accordance with the provisions hereof.


 


6.1.2                        Resignation by Manager. 
The Manager may not resign from its obligations and duties as Manager
hereunder, except (i) with the prior written consent of Owner and the
Requisite Global Majority or (ii) upon a determination by the Manager that
the performance by Manager of its duties under this Agreement is no longer
permissible under Applicable Law, which determination shall be evidenced by an
Opinion of Counsel, in form and substance reasonably satisfactory to Owner and
the Requisite Global Majority, to such effect delivered to the Indenture
Trustee, the Administrative Agent and each Series Enhancer.  No such resignation shall, to the extent
consistent with Applicable Law, become effective until a replacement Manager
has assumed the responsibilities of the resigning Manager in accordance with
the terms of this Agreement, Section 405 of the Indenture and the other
Transaction Documents.


 


Section 7.                                            (a)                                  Intercreditor Agreement Amendment. 
The Manager hereby undertakes to use its reasonable efforts to obtain an
amendment to the Intercreditor Agreement in order to amend the definition of
“Equipment Lenders” in Appendix A thereto to include any lenders to TAL
Advantage III LLC in clause (iii) thereof and the definition of “Equipment
Loan Agreement” to include the Indenture and the Management Agreement.


 


(b)                                 Incremental Inspection Rights. 
To the extent that neither the Indenture nor this Agreement is
considered to be an “Equipment Loan Agreement” within the meaning of the
Intercreditor Agreement, the Manager hereby extends to the Owner, the Indenture
Trustee and the Administrative Agent the benefit of the same covenants and
rights set forth in Section 5 of the Intercreditor Agreement.


 


Section 8.                                            Representations and Warranties; Covenants.


 


8.1                                 Manager Representations. 
The Manager represents and warrants to the Owner, the Indenture Trustee,
the Administrative Agent and each Series Enhancer that:


 


8.1.1                        The Manager is a corporation duly
organized and validly existing under the laws of the State of Delaware and is
duly qualified and is authorized to do business and is in good standing (or its
equivalent) in all jurisdictions where it is required by Applicable Law to be
so qualified (or its equivalent) and has all licenses, permits, charters and
registrations necessary for the operation of its container management business,
except for any such jurisdiction where the failure to be so qualified or for
any licenses the failure to hold which, either individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect.


 


8.1.2                        The Manager has the requisite power and
authority to enter into and perform its obligations under this Agreement, and
all requisite corporate authorizations have been given for it to enter into
this Agreement and to perform all the matters envisaged hereby, this Agreement
has been duly executed and delivered and constitutes the valid, legally binding
and enforceable obligation of the Manager, subject to bankruptcy, insolvency,
moratorium,


 


13

















 


reorganization and other laws of general applicability
relating to or affecting creditors’ rights and to general equity principles.


 


8.1.3                        The Manager has not breached its
certificate of incorporation or by-laws or any other agreement to which it is a
party or by which it is bound in the course of conduct of its business and
corporate affairs and has not breached any applicable laws and regulations,
except for such breaches which would not have a materially adverse effect on
the Manager’s ability to perform its obligations under this Agreement.


 


8.1.4                        There are no Proceedings or
investigations to which the Manager or any of its Affiliates is a party pending
or, to the Manager’s knowledge, threatened, before any court, regulatory body,
administrative agency or other tribunal or governmental instrumentality (A) asserting
the invalidity of this Agreement or any other Transaction Document, (B) seeking
to prevent the consummation of any of the transactions contemplated by this
Agreement or any other Transaction Document or (C) seeking any
determination or ruling that is reasonably likely to materially and adversely
affect the performance by the Manager of its obligations under, or the validity
or enforceability of, this Agreement or any other Transaction Document to which
it is a party.


 


8.1.5                        The execution, delivery and performance
of the transactions contemplated by and the fulfillment of the terms of this
Agreement and the other Transaction Documents will not conflict with, result in
any breach of any of the terms and provisions of, or constitute (with or
without notice or lapse of time or both) a default under, the organizational
documents of the Manager, or any material term of any indenture, agreement,
mortgage, deed of trust, or other instrument to which Manager is a party or by
which it is bound, or result in the creation or imposition of any Lien upon any
of its properties pursuant to the terms of any such indenture, agreement, mortgage,
deed of trust, or other instrument, or violate any law or any order, rule, or
regulation applicable to Manager of any court or of any federal or state
regulatory body, administrative agency, or other Governmental Authority having
jurisdiction over Manager or any of its properties, in each case, other than
any conflict, breach, default, Lien, or violation that would not reasonably be
expected to result in a Material Adverse Change.


 


8.1.6                        The Manager shall take all actions as may
be necessary to perform the Issuer’s obligations under Section 604 of the
Indenture.


 


8.1.7                        The Manager will fulfill all of its
obligations as lessor under any Lease Agreement to which a Managed Container is
subject except where any such nonfulfillment would not reasonably be expected
to materially and adversely affect the rights of the Owner under such
Lease.  The Manager shall use
commercially reasonable efforts to perform all of the Owner’s duties and
obligations under the Transaction Documents to which the Owner is a party; provided, however, that nothing contained
herein shall be construed as an express or implied guaranty by the Manager of
the Notes or any other Outstanding Obligation incurred by the Owner.


 


8.1.8                        Promptly, but in any case within seven (7) Business
Days of an Authorized Officer becoming aware of a Manager Default, Early
Amortization Event or an Event of Default, and which, in each case, has not
been waived in writing by the Requisite Global


 


14

















 


Majority, the Manager shall deliver to the Owner, the
Administrative Agent, the Indenture Trustee and each Series Enhancer a
written notice describing the nature of such event and period of existence and,
in the case of a Manager Default, the action the Manager is taking or proposed
to take with respect thereto.


 


8.1.9                        Since December 31, 2008, there has
been no Material Adverse Change in the financial condition of the Manager.


 


8.1.10                  The Manager will operate the Managed Containers so as
not knowingly  cause a violation of the
Trading With the Enemy Act (50 U.S.C. § 1 et seq., as amended) (the
“Trading With the Enemy Act”) or any of the foreign assets control regulations
of the United States Treasury Department (31 CFR, Subtitle B, Chapter V, as
amended) (the “Foreign Assets Control Regulations”) or any enabling legislation
or executive order relating thereto (which for the avoidance of doubt shall
include, but shall not be limited to (a) Executive Order 13224 of September 21,
2001 Blocking Property and Prohibiting Transactions With Persons Who Commit,
Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) (the
“Executive Order”) and (b) the Uniting and Strengthening America by
Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of
2001 (Public Law 107-56)).  Furthermore,
none of the Manager or its Affiliates (i) is or will become a “blocked
person” as described in the Executive Order, the Trading With the Enemy Act or
the Foreign Assets Control Regulations or (ii) engages or will engage in
any dealings or transactions, or be otherwise associated, with any such
“blocked person.”


 


8.1.11                  The credit and collection policy used by the Manager
as in effect on the Closing Date (which policy also addresses the criteria
under which a lessee is allowed to self-insure for property and liability
risks) is attached as Exhibit C hereto.  The credit and collection policy used by the
Manager is subject to modification from time to time at the discretion of the
Manager.  The “Credit and Collection
Policy” shall mean the credit and collection policy used by the Manager as
modified by the Manager from time to time.


 


8.1.12                  The depreciation policy as in effect on the Closing
Date used in the calculation of the Asset Base for the purposes of the
Transaction Documents is attached as Exhibit E hereto.


 


8.2                                 Owner Representations. 
The Owner represents and warrants to the Manager:


 


8.2.1                        The Owner is a limited liability company
duly organized and validly existing under the laws of Delaware;


 


8.2.2                        The Owner has the requisite power and
authority to enter into and perform its obligations under this Agreement and
all requisite limited liability company authorizations have been given for it
to enter into this Agreement and to perform all the matters envisaged hereby,
this Agreement has been duly executed and delivered by the Owner and
constitutes the valid, legally binding and enforceable obligation of the Owner,
subject to bankruptcy, insolvency, moratorium, reorganization and other laws of
general applicability relating to or affecting creditors’ rights and to general
equity principles; and


 


15

















 


8.2.3                        The Owner has not breached its limited
liability company agreement or any other agreement to which it is a party or by
which it is bound in the course of conduct of its business and corporate
affairs and has not breached any applicable laws and regulations of Delaware in
such manner as would in any case have a materially adverse effect on its
ability to perform its obligations under this Agreement.


 


8.2.4                        Since its formation, there has been no
Material Adverse Change in the financial condition of the Owner.


 


8.3                                 Covenants of the Manager.


 


8.3.1                        Location of Books and Records. 
The Manager shall not change the location at which the Owner’s books and
records are maintained unless (i) the Manager shall have given the
Indenture Trustee, the Administrative Agent and each Series Enhancer at
least thirty (30) days’ prior written notice thereof and (ii) the Manager
shall cause to be filed any necessary registration of charges or documents of
similar import necessary to continue the Indenture Trustee’s security interest
in the Collateral.


 


8.3.2                        Liens.  Except for
the Lien created pursuant to the Contribution and Sale Agreement and Permitted Encumbrances:
(a) Manager agrees not to create, incur, or grant, directly or indirectly,
any lien, security interest, pledge or hypothecation of any kind on or
concerning (i) its rights under this Agreement or (ii) the Managed
Containers or any interest therein; and (b) Manager shall promptly take,
or cause to be taken, such action as may be necessary to discharge any such
lien arising by, through or under the Manager.


 


8.3.3                        UNIDROIT Convention. 
The Manager will comply with the terms and provisions of the UNIDROIT
Convention on Intentional Interests in Mobile Equipment or any other
internationally recognized system for recording interests in or liens against
shipping containers at the time that such convention is adopted for containers.


 


8.3.4                        Identification of Gross Lease Revenues
and Direct Operating Expense; Transfer of Gross Lease Revenues.  The Manager will establish and maintain such
procedures as are necessary for determining and for identifying Container
Revenues and Direct Operating Expenses to a specific Managed Container.  Notwithstanding the foregoing, Manager shall
have the right to allocate various indirect overhead expenses among containers
in the Container Fleet (including the Managed Containers) in any way it deems
appropriate as long as such allocation is non-discriminatory, fair and
equitable, after giving due recognition to the cost, age and other factors
relevant to the Managed Containers as compared to other containers in the
Container Fleet.


 


8.3.5                        Compliance with Credit and Collection Policy. 
The Manager will comply in all material respects with the Credit and
Collection Policy in regard to the origination of, and amendments and
modifications to, Leases of Managed Containers. 
The Manager shall not amend the Credit and Collection Policy in any
respect which would materially and adversely affect the Noteholders without the
prior written consent of the Requisite Global Majority in each instance.  The Manager shall promptly provide the Owner,
the Administrative Agent and the Indenture Trustee with a copy of all
amendments to the Credit and Collection Policy.


 


16

















 


8.3.6                        Inspections.  
The Manager shall, upon reasonable prior notice, allow the Indenture
Trustee, the Administrative Agent, each Hedge Counterparty and each Series Enhancer
to inspect, under guidance of officers of the Manager, the Manager’s facilities
during normal business hours.  So long as
no Manager Default, Early Amortization Event or Event of Default is continuing,
the Manager shall pay the reasonable and documented costs and expenses incurred
by such Person(s) in conducting not more than one such inspection in any
calendar year; provided, however,
that the Manager and the Administrative Agent shall coordinate such that, so
long as no Manager Default, Early Amortization Event or Event of Default is
continuing, the Manager shall not be responsible for paying for more than one
inspection in total per calendar year pursuant to (x) this Section 8.3.6,
(y) Section 3.10 herein and (z) the Master Repurchase Agreement,
dated as of September 17, 2009, among Wachovia Bank, National Association,
as buyer, Wells Fargo Securities, LLC, as agent, TAL International Container
Corporation, as seller, and TAL International Group, Inc, as guarantor.  In addition, the Manager shall pay the
reasonable and documented costs and expenses incurred by such Person(s) in
conducting any such examinations during the continuation of any of a Manager
Default, Early Amortization Event or Event of Default.


 


8.3.7                        Container Management System. 
Without the prior written consent of the Indenture Trustee, acting at
the direction of the Requisite Global Majority, the Manager agrees that it will
not grant to any Person, or permit any Person to obtain, a Lien (other than items
listed in clauses (i), (ii), (iii), (iv) or (v) of the definition of
“Permitted Encumbrances” (as determined as though the Container Management
System were deemed “Collateral” for the purposes of the definition of
“Permitted Encumbrance”)) over the Container Management System.


 


8.3.8                        Rating Agency Notices. 
Subject to the application of applicable law, the Manager shall promptly
deliver a copy of any written notice concerning the Owner’s credit rating
received by it from any Rating Agency to the Indenture Trustee, the
Administrative Agent and each Series Enhancer.


 


Section 9.                                            Manager Default.


 


9.1                                 Manager Default. 
Each of the following is a Manager Default:


 


9.1.1                        The Manager shall fail to make any
deposits of Container Revenues, Sales Proceeds, Casualty Proceeds or any other
amounts due and payable under this Agreement to the Trust Account within one (1) Business
Day after the date such deposit is due; provided,
that if such failure to make a deposit shall result from administrative failure
beyond the control of the Manager, the Manager shall have two (2) additional
Business Days to cure such failure before such failure shall constitute a
Manager Default.


 


9.1.2                        The Manager shall fail (A) to
deliver any report required to be delivered to the Indenture Trustee pursuant
to the terms of Sections 4.1.2 or 4.1.3 hereof such failure shall continue
unremedied for three (3) Business Days or (B) in any material respect
to perform the covenant of the Manager to deliver financial statements set
forth in the second sentence of Section 4.1.1 and such failure shall
continue unremedied for thirty (30) days after the earlier of the date (x) on
which there has been given to the Manager, by the Indenture Trustee, the
Administrative Agent, any Series Enhancer or any Noteholder, a written
notice specifying such


 


17














 


default or breach and
requiring it to be remedied and (y) on which any Authorized Officer of the
Manager shall have knowledge of such default or breach;


 


9.1.3                        The Manager
shall fail to (A) deliver any report required to be delivered to the
Indenture Trustee pursuant to the terms hereof or of any other Transaction
Document (which is not otherwise addressed in Section 9.1.2) and such
failure shall continue unremedied for thirty (30) days, or (B) perform or
observe, or cause to be performed or observed, in any material respect any
other covenant or agreement contained herein or in any other Transaction
Document (including in its capacity as Seller) (which is not otherwise
addressed in this Section 9.1) and such failure, if capable of remedy,
shall continue unremedied for a period of thirty (30) days after earlier of the
date (x) on which there has been given to the Manager, by the Indenture
Trustee, the Administrative Agent, any Series Enhancer or any Noteholder,
a written notice specifying such default or breach and requiring it to be
remedied and (y) on which any Authorized Officer of the Manager shall have
knowledge of such default or breach.


 


9.1.4                        Any
representation or warranty made by the Manager in this Agreement or any other
Transaction Document (including in its capacity as Seller), or in any
certificate, report or financial statement delivered by it pursuant hereto or
thereto proves to have been untrue in any material respect when made, and such
breach, if capable of remedy, shall continue unremedied for a period of thirty
(30) days after the earlier of the date (x) on which there has been given
to the Manager, by the Indenture Trustee, the Administrative Agent, any Series Enhancer
or any Noteholder, a written notice specifying such default or breach and
requiring it to be remedied and (y) on which any Authorized Officer of the
Manager shall have knowledge of such default or breach.


 


9.1.5                        TAL ceases to
be engaged in the container leasing or management business.


 


9.1.6                        The Manager
shall commence a voluntary case concerning itself under the Bankruptcy Code; or
an involuntary case is commenced against the Manager or any of its Subsidiaries
and the petition is not controverted within 10 days, or is not dismissed within
60 days, after commencement of the case; or a custodian (as defined in the
Bankruptcy Code) is appointed for, or takes charge of, all or substantially all
of the property of the Manager; or the Manager commences any other proceeding
under any reorganization, arrangement, adjustment of debt, relief of debtors,
dissolution, insolvency or liquidation or similar law of any jurisdiction
whether now or hereafter in effect relating to the Manager and such proceeding
remains undismissed for a period of 60 days; or the Manager is adjudicated
insolvent or bankrupt; or any order of relief or other order approving any such
case or proceeding is entered; or the Manager suffers any appointment of any
custodian or the like for it or any substantial part of its property to
continue undischarged or unstayed for a period of 60 days; or the Manager makes
a general assignment for the benefit of creditors; or any action is taken by
the Manager for the purpose of effecting any of the foregoing;


 


9.1.7                        Except as
permitted by Sections 2 and 13 hereof, Manager assigns or attempts to assign
its interest under this Agreement.


 


9.1.8                        A Change of
Control shall have occurred with respect to the Manager.


 


18

















 


9.1.9                        The Leverage
Ratio of TAL International Group as of the last day of any fiscal quarter shall
be in excess of 4.75 to 1.00.


 


9.1.10                  As of the last day of each
fiscal quarter beginning with the fiscal quarter ending September 30,
2009, the Consolidated EBIT to Consolidated Cash Interest Expense Ratio is less
than 1.10 to 1.00.


 


9.1.11                  As of the last day of each
fiscal quarter beginning with the fiscal quarter ending September 30,
2009, the Consolidated Tangible Net Worth of TAL International Group is less
than the sum of (i) $321,351,326; plus (ii) an amount equal to fifty
percent (50%) of the cumulative sum of the aggregate net income of TAL
International Group and its Consolidated Subsidiaries (as such term is defined
in the Credit Agreement) on a consolidated basis, determined in accordance with
GAAP for the period commencing on January 1, 2006 and terminating on such
date of determination.


 


9.1.12                  Any of the Manager, TAL
International Group, the Borrower (as such term is defined in the Credit
Agreement) or any Restricted Subsidiary (as such term is defined in the Credit
Agreement) fails to make any payment when due (beyond the applicable grace or
cure period with respect thereto, if any) or defaults in the observance or
performance (beyond the applicable grace or cure period with respect thereto,
if any) of any payment obligation, or any other agreement or covenant with
respect to the Indebtedness that, individually or in the aggregate for all such
Persons, exceeds Twenty Million Dollars ($20,000,000) and, such condition is
not remedied by a permanent and unconditional cure or waiver of such default
within thirty (30) days.


 


9.1.13                  One or more judgments or
decrees shall be entered against TAL International Group, the Borrower (as such
term is defined in the Credit Agreement) or any of its Restricted Subsidiaries
(as such term is defined in the Credit Agreement) (other than a Special Purpose
Vehicle (as such term is defined in the Credit Agreement)) involving a
liability (to the extent not paid when due or covered by a reputable and
solvent insurance company (with any portion of any judgment or decree not so
covered to be included in any determination hereunder)) equal to or in excess
of Twenty Million Dollars ($20,000,000) for all such judgments and decrees and
all such judgments or decrees shall either be final and non-appealable or shall
not have been vacated, discharged or stayed or bonded pending appeal for any
period of 30 consecutive days.


 


9.1.14                  This Agreement shall at any
time cease to be the legal, valid and binding obligation of the Manager,
enforceable in accordance with its terms.


 


Notwithstanding
the foregoing, if any of the covenants of the Manager or TAL International
Group in any other credit facility of the Manager or TAL International Group
(as applicable), which correspond to any of the Manager Defaults contained in Section 9.1.9,
9.1.10 and/or 9.1.11 hereof (as applicable), are amended in such a manner as to
make any such covenants more restrictive than prior to the amendment thereof,
such more restrictive covenants shall be automatically incorporated herein and
the Manager hereby agrees to amend the corresponding provision(s) in this
Agreement in order to document such inclusion.


 


19

















 


The occurrence of a Manager Default shall constitute an “Actionable
Default” under the Intercreditor Agreement for so long as Manager Default is
continuing.  A Manager Default may be
waived in a written instrument executed by the Requisite Global Majority in
each such instance.  Any such waiver of a
Manager Default shall not be construed as a waiver of any subsequent Manager
Default.  No delay by the Requisite
Global Majority or any of its assigns, shall constitute any such waiver or
prejudice the Requisite Global Majority in exercising any right, power or
privilege arising out of such Manager Default.


 


9.2                                 Remedies.  If a Manager Default shall have occurred and
be continuing, and any Notes are then Outstanding, the Indenture Trustee,
acting at the direction of the Requisite Global Majority and in the Requisite
Global Majority’s discretion, shall have the right (upon written notice (a
“Manager Termination Notice”) to the Manager, the Issuer, the Administrative
Agent, each Interest Rate Hedge Counterparty and the Rating Agencies), in
addition to other rights or remedies that the Issuer or its assignee may have
under any Applicable Law or in equity to: (i) terminate this Agreement, (ii) appoint
a replacement Manager selected by the Requisite Global Majority to manage the
Managed Containers, (iii) take control of the Managed Containers wherever
located, subject to the rights of lessees under Lease Agreements to which any
of the Managed Containers shall at the time be subject or to appoint a
replacement Manager to manage the Managed Containers, (iv) appoint an
independent auditor of national reputation and mutually acceptable to the
Issuer and the Requisite Global Majority (the “Verification Auditor”) to verify
that all prior Manager Reports and Asset Base Certificates prepared by the
Manager are in accordance with this Agreement and/or (v) exercise any
other remedies specifically set forth in this Agreement, the Indenture and the
other Related Documents that are exercisable while a Manager Default is
continuing.  Notwithstanding such
termination, until the Manager is notified of the appointment of a replacement
manager and the replacement manager has assumed such responsibility, the
Manager shall (i) continue to manage the Managed Containers and the
Owner’s business, and deposit into the Trust Account all Container Revenues,
Sales Proceeds, Casualty Proceeds and other amounts, and submit all reports due
hereunder and perform all other services required hereunder, all in accordance
with this Agreement and (ii) not make any disbursement of funds from the
Concentration Accounts (whether to the Owner or any other Person) until the
Verification Auditor has verified the allocation of such amounts.


 


9.3                                 Transfer of
Managed Containers.  Upon any
termination of this Agreement pursuant to Section 9.2, the Manager shall
cooperate with the Owner, the Indenture Trustee, the Administrative Agent and
the Requisite Global Majority in transferring management of the Managed
Containers as provided in the Indenture, including, but not limited to making
available all books and records (including computer systems and data contained
therein) pertaining to the Manager’s activities hereunder, providing access to,
and cooperating in the transfer of, information from the Manager’s computer
system to the Owner’s or its designee’s system, promptly notifying lessees of
the termination of management of the Managed Containers by the Manager and
assumption of management by the Owner or its designee, depositing funds
belonging to the Owner but not yet in the Trust Account to such account as
designated by the Owner or its assignee, executing assignments of interests in
Lease Agreements pertaining to the Managed Containers and taking any other
action as may be reasonably requested by the Owner or its assignee to ensure
the orderly assumption of management of the Managed Containers by the Owner or
its designee.  During such transition
period, the outgoing Manager shall continue to


 


20

















 


provide
notices pursuant to Section 8.1.8 and Section 6.19 of the Indenture
that relate to occurrences of which it is aware.


 


9.4                                 Power of
Attorney.  The Manager
hereby irrevocably constitutes and appoints the Indenture Trustee, with full
power of substitution (such appointment being coupled with an interest), as its
true and lawful attorney-in-fact with full irrevocable power and authority in
the place and stead of the Manager and in the name of the Manager or in its own
name, for the purpose of carrying out the terms of this Agreement, to take
(subject to the limitations set forth below) any and all appropriate action and
to execute any and all documents and instruments which may be necessary or
desirable to accomplish the purposes of this Agreement, and, without limiting
the generality of the foregoing, the Manager hereby gives the Indenture Trustee
the power and right, on behalf of the Manager, without notice to or assent by
the Manager (subject to the limitation set forth below), to do any or all of
the following:


 


(i)                                     So long as a
Manager Default has occurred and is continuing and a Manager Termination Notice
has been delivered in accordance with the terms hereof, at any time, in the
name of the Manager or its own name, or otherwise, to take possession of and
endorse and collect any checks, drafts, notes, acceptances or other instrument,
general intangible or contract or any other Collateral and to file any claim or
to take any other action or proceeding in any court of law or equity or
otherwise deemed appropriate by the Indenture Trustee, the Administrative Agent
or any Series Enhancer for the purpose of collecting any and all such
moneys due under any account, instrument, general intangible or contract with
respect to the Managed Containers and the other Collateral whenever payable;


 


(ii)                                  So long as a
Manager Default has occurred and is continuing and a Manager Termination Notice
has been delivered in accordance with the terms hereof, at any time, to enter
and use the premises of the Manager and make use of the Manager’s computer
database, software system and all other books and records relating to the Managed
Containers and the other Collateral.  The
Manager hereby grants, and agrees to grant from time to time, to the Indenture
Trustee a non-exclusive royalty-free license (such license not to be exercised
until, and only so long as, a Manager Default has occurred and is continuing
and a Manager Termination Notice has been delivered in accordance with the
terms hereof) of all its intellectual property rights arising in connection
with the software system used by the Manager in connection with the Managed Containers,
such license to be irrevocable until the later of (a) the last date on
which any Note was Outstanding or (b) the date on which all amounts owed
to the Indenture Trustee, the Noteholders and any Series Enhancer pursuant
to the terms of the Indenture and the related Enhancement Agreement shall have
been paid in full, subject, in the case of intellectual property rights held
under license by the Manager, to the prior consent of the relevant licensor, if
required, which consent the Manager undertakes to use its reasonable efforts
forthwith to obtain at its own expense on terms reasonably acceptable to the
Indenture Trustee and any Series Enhancer so long as a Manager Default has
occurred and is continuing and a Manager Termination Notice has been delivered
in accordance with the terms hereof; and


 


(iii)                               So long as an
Event of Default or Manager Default has not occurred, upon the failure of the
Manager to comply with the provisions of Section 8.1.6 (and so long as an Event of Default or Manager Default has
occurred, whether or not the Manager has complied with the provisions of
Section 8.1.6), to execute and deliver those agreements, instruments, 


 


21

















 


documents and papers (including, without limitation, deeds of trust) as
the Manager may otherwise be required to file in accordance with the provisions
of Section 8.1.6 hereof.


 


The
Manager hereby ratifies and confirms and agrees to ratify and confirm whatever
any such attorney shall do or propose to do in the exercise or purported
exercise of all or any of the powers, authorities and discretion referred to in
this Section.


 


9.5                                 Owner Power of
Attorney.  The Owner
hereby irrevocably constitutes and appoints the Indenture Trustee, 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 Owner and in the
name of the Owner or in its own name, for the purpose of carrying out the terms
of this Agreement and the other Transaction Documents to which the Owner is a
party, to take (subject to the limitations set forth below) any and all
appropriate action and to execute any and all documents and instruments which
may be necessary or desirable to accomplish the purposes of this Agreement,
and, without limiting the generality of the foregoing, the Owner hereby gives
the Indenture Trustee the power and right, on behalf of the Owner, without
notice to or assent by the Owner (subject to the limitation set forth below),
to do any or all of the following:


 


(i)                                     So long as a
Manager Default has occurred and is continuing and a Manager Termination Notice
has been delivered in accordance with the terms hereof, at any time, in the
name of the Owner or its own name, or otherwise, to take possession of and
indorse and collect any checks, drafts, notes, acceptances or other instrument,
general intangible or contract or any other Collateral and to file any claim or
to take any other action or proceeding in any court of law or equity or
otherwise deemed appropriate by the Indenture Trustee or any Series Enhancer
for the purpose of collecting any and all such moneys due under any account,
instrument, general intangible or contract with respect to the Managed
Containers and the other Collateral whenever payable;


 


(ii)                                  So long as an
Event of Default or Manager Default has occurred and is continuing, at any
time, to enter and use the premises of the Owner and make use of the Owner’s
computer database, software system and all other books and records relating to the
Managed Containers and the other Collateral. 
The Owner hereby grants, and agrees to grant from time to time, to the
Indenture Trustee a non-exclusive royalty-free license (such license not to be
exercised until, and only so long as, a Manager Default has occurred and is
continuing and a Manager Termination Notice has been delivered in accordance
with the terms hereof) of all its intellectual property rights arising in
connection with the software system used by the Owner in connection with the
Managed Containers, such license to be irrevocable until the later of (a) the
last date on which any Note was Outstanding or (b) the date on which all
amounts owed to any Series Enhancer pursuant to the terms of the Indenture
and any related Enhancement Agreement shall have been paid in full, subject, in
the case of intellectual property rights held under license by the Owner, to
the prior consent of the relevant licensor, if required, which consent the
Owner undertakes to use its reasonable efforts forthwith to obtain at its own
expense on terms reasonably acceptable to the Indenture Trustee, the
Administrative Agent and any Series Enhancer; and


 


(iii)                               So long as an
Event of Default or Manager Default has not occurred, upon the failure of the
Manager to comply with the provisions of Section 8.1.6 (and so long as an


 


22

















 


Event of Default or Manager
Default has occurred, whether or not the Manager has complied with the
provisions of Section 8.1.6), to execute and deliver those agreements,
instruments, documents and papers (including, without limitation, deeds of
trust) as the Owner (or the Manager, on behalf of the Owner) may otherwise be
required to file in accordance with the provisions of Section 8.1.6 hereof
or in accordance with Section 604 of the Indenture.


 


Section 10.                                      No Partnership.


 


Except
as otherwise provided herein, the Manager’s activities taken on behalf of the
Owner hereunder will be taken solely as manager of the Managed Containers.  The parties hereto expressly recognize and
acknowledge that this Agreement is not intended to create a partnership, joint
venture or other entity between the Manager and the Owner.


 


Section 11.                                      No Warranties.


 


THE
MANAGED CONTAINERS ARE BEING DELIVERED BY THE OWNER TO THE MANAGER “AS
IS”.  THE OWNER MAKES NO REPRESENTATIONS
OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONDITION,
MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE MANAGED
CONTAINERS, THE ABSENCE OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE,
THE ABSENCE OF OBLIGATIONS BASED ON STRICT LIABILITY IN TORT, OR ANY OTHER
REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED.


 


Section 12.                                      Non-Exclusivity.


 


During
the term of this Agreement, the Manager may provide container, management, sales,
leasing or remarketing services directly or indirectly to any other Person or
on behalf of any other Person.


 


Section 13.                                      Assignment.


 


This
Agreement, and the rights and duties of the Manager hereunder, may not be
assigned by the Manager to any other Person without the prior written consent
of the Owner, the Indenture Trustee (acting at the direction of the Requisite
Global Majority) and the Administrative Agent. 
The Owner may charge, assign, pledge or hypothecate its rights (but not
its obligations) under this Agreement as provided herein.  The Manager hereby acknowledges that the
Owner shall pledge all of its rights, title and interest under this Agreement
to the Indenture Trustee (for the benefit of the Noteholders), and the Manager
hereby consents to such pledge.  The
Manager will give any Rating Agency prior notice of any assignment effected
pursuant to this Section 13.


 


Section 14.                                      Indemnification.


 


14.1                           By the Owner.  The Owner, at its own expense, shall defend,
indemnify and hold the Manager harmless from and against any and all claims,
actions, damages, losses, liabilities, costs and expenses (including reasonable
legal fees) (each, a “Claim”) incurred by or asserted against the Manager to
the extent resulting or arising from the Manager’s performance of its
obligations under this Agreement or from the Owner’s failure to comply with or
perform its


 


23

















 


obligations under this
Agreement, except for Claims which arise out of the Manager’s willful misconduct,
or gross negligence, or failure to comply with or perform its obligations under
this Agreement.  Manager subordinates its
claims under this Section 14.1 to all claims which have priority in
payment pursuant to the provisions of Section 302 and Section 806 of
the Indenture.


 


14.2                           By the Manager.


 


14.2.1                  The Manager, in its capacity
as the Manager, agrees to, and hereby does, indemnify and hold harmless the
Owner, the Indenture Trustee (for the benefit of the Noteholders), any Series Enhancer,
any Hedge Counterparty, the Deal Agents (as such term is defined in the Note
Purchase Agreement), the Liquidity Agents (as such term is defined in the Note
Purchase Agreement), the Purchasers (as such term is defined in the Note
Purchase Agreement), the Administrative Agent and their respective officers,
directors, employees and agents (each of the foregoing, an “Indemnified Party”)
against any and all liabilities, losses, damages, penalties, costs and expenses
which may be incurred or suffered by such Indemnified Party (except to the
extent caused by the gross negligence or willful misconduct on the part of the
Indemnified Party) as a result of claims, actions, suits or judgments asserted
or imposed against an Indemnified Party and arising out of (i) an action
or inaction by the Manager that is contrary to the Servicing Standard or
otherwise in violation of the terms of this Agreement; or (ii) any breach
of or any inaccuracy in any representation or warranty made by the Manager in
this Agreement or in any certificate delivered by the Manager pursuant hereto;
or (iii) any breach of or failure by the Manager to perform any covenant
or obligation of the Manager set out or contemplated in this Agreement; (iv) personal
injury or property damage claim arising out of or in connection with the
negligence of the Manager; or (v) any defense, setoff or counterclaim
arising out of any negligence of the Manager or any acts or omissions of the
Manager related to the performance hereunder of its duties with respect to the
Managed Containers; provided however,
that the foregoing indemnity shall in no way be deemed to impose on the Manager
any obligation to reimburse an Indemnified Party for: (A) losses arising
from the financial inability of the related obligor on a Lease Agreement to
make the payments due thereunder or because the Leases otherwise are
uncollectible, or (B) losses arising from the failure of the remarketing
proceeds of the Managed Containers to achieve historical or projected levels
for reasons other than the Manager’s failure to comply with the terms of this
Agreement.  The provisions of this Section 14.2
shall run directly to and be enforceable by an injured party, subject to the
limitations hereof.  The obligations of
the Manager under this Section 14.2 shall survive the resignation or
removal of the Manager and each Indemnified Party, the payment of the Notes and
Outstanding Obligations and the termination of this Agreement or the Indenture;
it being understood and agreed that the Manager shall have no liability for the
actions or inactions of any replacement Manager.


 


14.2.2                  The Manager shall pay any
amounts owing by it pursuant to this Section 14 directly to the
Indemnified Party, and such amounts shall not be deposited in the Trust
Account.


 


14.2.3                  Indemnification payments
owing pursuant to the provisions of this Section 14 shall include, without
limitation, reasonable and documented fees and expenses of counsel and expenses
of litigation reasonably incurred.


 


24

















 


Section 15.                                      No Bankruptcy
Petition Against the Owner.


 


The
Manager will not, prior to the date that is one year and one day after the
payment in full of all Outstanding Obligations under the Indenture or
obligations of the Issuer under any of the other Transaction Documents,
institute against the Owner, or join any other Person in instituting against
the Owner, an Insolvency Proceeding.  The
provision of this Section 15 shall survive the termination of this
Agreement.


 


Section 16.                                      Notices.


 


All
notices, demands or requests given pursuant to this Agreement shall be in
writing, sent by internationally recognized overnight courier service or by
telecopy or hand delivery, to the following addresses:


 


	
  To the Manager:

  	
   

  	
  TAL International Container Corporation

  
	
   

  	
   

  	
  100 Manhattanville Road

  
	
   

  	
   

  	
  Purchase,
  New York 10577-2135

  
	
   

  	
   

  	
  Attn:  Jeffrey Casucci, Vice President, Treasury
  and Credit

  
	
   

  	
   

  	
  Fax:
  (914) 697-2526

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with
  a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TAL
  International Container Corporation

  
	
   

  	
   

  	
  100
  Manhattanville Road

  
	
   

  	
   

  	
  Purchase,
  New York 10577-2135

  
	
   

  	
   

  	
  Attn:  Marc A. Pearlin, Vice President, General
  Counsel & Secretary

  
	
   

  	
   

  	
  Fax:   (914) 697-2526

  
	
   

  	
   

  	
   

  
	
  To the Owner:

  	
   

  	
  TAL Advantage III LLC

  
	
   

  	
   

  	
  100
  Manhattanville Road

  
	
   

  	
   

  	
  Purchase,
  New York 10577-2135

  
	
   

  	
   

  	
  Attn:  Jeffrey Casucci

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  with
  a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  TAL International Container Corporation

  
	
   

  	
   

  	
  100 Manhattanville Road

  
	
   

  	
   

  	
  Purchase, New York 10577-2135

  
	
   

  	
   

  	
  Attn:  Jeffrey Casucci, Vice President, Treasury
  and Credit

  
	
   

  	
   

  	
  Fax:   (914) 697-2526

  
	
   

  	
   

  	
   

  
	
  To
  the Indenture Trustee:

  	
   

  	
  Wells
  Fargo Bank, National Association

  
	
   

  	
   

  	
  MAC
  N9311-161

  
	
   

  	
   

  	
  Sixth
  Street and Marquette Avenue

  
	
   

  	
   

  	
  Minneapolis,
  MN 55479

  
	
   

  	
   

  	
  Attention:
  Corporate Trust Services - Asset-Backed Administration

  



 


25

















 


	
   

  	
   

  	
  Tel:
  (612) 667-8058

  
	
   

  	
   

  	
  Fax:
  (612) 667-3469

  
	
   

  	
   

  	
   

  
	
  To the Administrative Agent:

  	
   

  	
  Wells Fargo Securities, LLC

  
	
   

  	
   

  	
  301
  S. College Street

  
	
   

  	
   

  	
  One
  Wachovia Center

  
	
   

  	
   

  	
  Charlotte,
  NC 28288

  
	
   

  	
   

  	
  Attention:
  Jerri Kallam

  
	
   

  	
   

  	
  Fax:
  (704) 374-3254

  
	
   

  	
   

  	
  Email:
  jerri.kallam@wellsfargo.com

  
	
   

  	
   

  	
   

  
	
  To
  any Series Enhancer:

  	
   

  	
  At
  the address set forth in the related Enhancement Agreement

  
	
   

  	
   

  	
   

  
	
  To
  any Hedge Counterparty:

  	
   

  	
  At
  the address set forth in the related Hedge Agreement

  



 


Notice
shall be effective and deemed received (a) two days after being delivered
to the courier service, if sent by courier, (b) upon receipt of
confirmation of transmission, if sent by telecopy or (c) when delivered,
if delivered by hand.


 


Section 17.                                      Governing Law;
Consent to Jurisdiction.


 


17.1                           Governing Law.  THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK (INCLUDING SECTIONS
5-1401 AND 5-1402 OF THE NEW YORK GENERAL OBLIGATIONS LAW, BUT WITHOUT GIVING
EFFECT TO ANY OTHER PRINCIPLES OF CONFLICTS OF LAW).


 


17.2                           Consent to
Jurisdiction.  Any legal
suit, action or proceeding against Owner or Manager arising out of or relating
to this Agreement, 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 of Owner and Manager hereby waives any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding,
and, solely for the purposes of enforcing this Agreement, Owner and Manager
each hereby irrevocably submits to the jurisdiction of any such court in any
such suit, action or proceeding.


 


17.3                           Waiver of Jury
Trial.  EACH OF THE PARTIES HERETO
IRREVOCABLY WAIVES, AS AGAINST EACH 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
THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, INCLUDING IN RESPECT OF THE
NEGOTIATION, ADMINISTRATION OR ENFORCEMENT HEREOF OR THEREOF.


 


Section 18.                                      Successors and
Assigns.


 


The
terms and conditions of this Agreement shall inure to the benefit of and be
binding upon the successors and permitted assigns of the parties hereto.


 


26














 


Section 19.                                      Severability.


 


If
any term or provision of this Agreement or the performance thereof shall to any
extent be or become invalid or unenforceable, such invalidity or
unenforceability shall not affect or render invalid or unenforceable any other
provisions of this Agreement, and this Agreement shall continue to be valid and
enforceable to the fullest extent permitted by law.


 


Section 20.                                      Entire Agreement;
Amendments; Waiver.


 


This
Agreement represents the entire agreement between the parties with respect to
the subject matter hereof and may not be amended or modified except by an
instrument in writing signed by the parties hereto and approved by the
Administrative Agent and the Requisite Global Majority and, if such amendment
or modification would cause any of the events set forth in Section 1002(a)(i) through
(vii) of the Indenture to occur, the Persons specified in Section 1002(a) of
the Indenture are then the Control Party for such Series or shall have
made an unreimbursed payment; provided,
that, if any such amendment or modification would (i) reduce the amount
payable to such Series Enhancer, (ii) amend the relative priority of
any such payment pursuant to Sections 302 or 806 of the indenture (other than
to increase the priority thereof) or increase the amount of any applicable
dollar limitations on amounts having a higher payment priority to such payments
pursuant to Sections 302 or 806 of the Indenture or otherwise change such
payments in a manner adverse to such Series Enhancer, (iii) change the
date on which or the amount of which, or the place or payment where, or the
coin or currency in which, such amount is paid to such Series Enhancer, (iv) increase
or accelerate such Series Enhancer’s payment obligations under its
Enhancement Agreement or otherwise materially and adversely affect the rights,
interests or obligations of such Series Enhancer under this Agreement and
the other Transaction Documents, or (v) modify provisions of any
Transaction Document relating to requirements that the consent of such Series Enhancer
be obtained, the approval of such Series Enhancer shall be required.  The Manager will send prior notice of any
amendment or modification to the Rating Agencies setting forth in general terms
the substance of such amendment or modification.  Waiver of any terms or conditions of this
Agreement (including any extension of time required for performance) shall be
effective only if in writing and shall not be construed as a waiver of any
subsequent breach or waiver of the same terms or conditions or a waiver of any
other term or condition of this Agreement. 
No delay on the part of any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof.


 


Section 21.                                      Counterparts.


 


This
Agreement may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.  Delivery of an
executed counterpart of a signature page to this Agreement by facsimile or
PDF file shall be effective as delivery of a manually executed counterpart of
this Agreement.


 


Section 22.                                      Intended Third Party
Beneficiaries.


 


Each
of the Administrative Agent, each Series Enhancer, the Requisite Global
Majority, each Hedge Counterparty and the Indenture Trustee are express third
party beneficiaries of this


 


27

















 


Agreement;
and, as such, shall have full power and authority to enforce the provisions of
this Agreement against the parties hereto. 
Except as set forth in the immediately preceding sentence, this
Agreement shall be binding upon and inure solely to the benefit of each party
hereto, and nothing in this Agreement, express or implied, is intended to or
shall confer on any other Person any right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.


 


28

















 


IN
WITNESS WHEREOF, the parties have caused this Agreement to be duly executed as
of the date first written above.


 


	
   

  	
  TAL INTERNATIONAL CONTAINER
  CORPORATION, as Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


MANAGEMENT AGREEMENT


 

















 


	
   

  	
  TAL ADVANTAGE III LLC, as Owner,

  
	
   

  	
  By:

  	
  TAL
  International Container Corporation,

  
	
   

  	
   

  	
  its
  manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
				



 


MANAGEMENT AGREEMENT