EXHIBIT 4.34


 




 





CONTRIBUTION AND SALE AGREEMENT


 






 


between


 


TAL INTERNATIONAL CONTAINER CORPORATION,


 


and


 


TAL ADVANTAGE III LLC


 






 


Dated as of


 


October 23, 2009


 




 





 


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TABLE OF CONTENTS


 


 


ARTICLE I 


 


DEFINITIONS


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 1.01

  	
   

  	
  Definitions

  	
  1

  
	
  SECTION 1.02

  	
   

  	
  General Interpretive Principles

  	
  1

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE II

  
	
   

  
	
  TRANSFER OF CONTAINERS

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 2.01

  	
   

  	
  [Reserved]

  	
  2

  
	
  SECTION 2.02

  	
   

  	
  Transferred Containers and Related Assets after the
  Closing Date.

  	
  2

  
	
  SECTION 2.03

  	
   

  	
  Required Financing Statements; Marking of Records.

  	
  3

  
	
  SECTION 2.04

  	
   

  	
  General Provisions Regarding All Transfers of
  Containers.

  	
  4

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE III

  
	
   

  
	
  REPRESENTATIONS AND WARRANTIES

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 3.01

  	
   

  	
  Representations and Warranties of the Seller

  	
  5

  
	
  SECTION 3.02

  	
   

  	
  Representations and Warranties of the Issuer

  	
  11

  
	
  SECTION 3.03

  	
   

  	
  Breach of Representations and Warranties Regarding
  Certain Transferred Assets.

  	
  14

  
	
  SECTION 3.04

  	
   

  	
  Substitute Container.

  	
  15

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE IV

  
	
   

  
	
  COVENANTS OF THE SELLER

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 4.01

  	
   

  	
  Seller Covenants

  	
  15

  
	
  SECTION 4.02

  	
   

  	
  Pledge of Transferred Assets

  	
  18

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE V

  
	
   

  
	
  CONDITIONS PRECEDENT

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 5.01

  	
   

  	
  Conditions to Issuer Obligations

  	
  18

  
	
  SECTION 5.02

  	
   

  	
  Conditions to the Seller’s Obligations

  	
  19

  
	
  SECTION 5.03

  	
   

  	
  Waiver of
  Conditions

  	
  19

  



 


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TABLE OF CONTENTS


(continued)


 


	
   

  	
   

  	
   

  	
  Page

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VI

  
	
   

  
	
  TERMINATION

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 6.01

  	
   

  	
  Termination

  	
  20

  
	
  SECTION 6.02

  	
   

  	
  Effect of Termination

  	
  20

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VII

  
	
   

  
	
  INDEMNIFICATION PAYMENTS

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 7.01

  	
   

  	
  Indemnification

  	
  20

  
	
  SECTION 7.02

  	
   

  	
  Procedure for Indemnification

  	
  21

  
	
   

  	
   

  	
   

  	
   

  
	
  ARTICLE VIII

  
	
   

  
	
  MISCELLANEOUS PROVISIONS

  
	
   

  	
   

  	
   

  	
   

  
	
  SECTION 8.01

  	
   

  	
  Amendment

  	
  21

  
	
  SECTION 8.02

  	
   

  	
  Governing Law

  	
  21

  
	
  SECTION 8.03

  	
   

  	
  Notices

  	
  22

  
	
  SECTION 8.04

  	
   

  	
  Severability of Provisions

  	
  23

  
	
  SECTION 8.05

  	
   

  	
  Assignment

  	
  23

  
	
  SECTION 8.06

  	
   

  	
  Further Assurances

  	
  23

  
	
  SECTION 8.07

  	
   

  	
  Waiver; Cumulative Remedies

  	
  24

  
	
  SECTION 8.08

  	
   

  	
  Counterparts

  	
  24

  
	
  SECTION 8.09

  	
   

  	
  Binding

  	
  24

  
	
  SECTION 8.10

  	
   

  	
  Merger and Integration

  	
  24

  
	
  SECTION 8.11

  	
   

  	
  Headings

  	
  24

  
	
  SECTION 8.12

  	
   

  	
  Schedules and Exhibits

  	
  24

  
	
  SECTION 8.13

  	
   

  	
  Intended Third Party Beneficiaries

  	
  24

  
	
  SECTION 8.14

  	
   

  	
  Consent to Jurisdiction

  	
  24

  
	
  SECTION 8.15

  	
   

  	
  WAIVER OF JURY TRIAL

  	
  25

  
	
  SECTION 8.16

  	
   

  	
  No Claim

  	
  25

  



 


EXHIBIT A – [Reserved]


EXHIBIT B – Container Transfer Certificate


SCHEDULE 3.01 – Other Names of Seller


 


ii

















 


CONTRIBUTION AND SALE AGREEMENT


 


THIS CONTRIBUTION AND SALE
AGREEMENT, dated as of October 23, 2009 (as amended, modified or
supplemented from time to time in accordance with the terms hereof, this “Agreement”),
is entered into between TAL INTERNATIONAL CONTAINER CORPORATION (together with
its permitted successors and assigns, the “Seller”), a Delaware corporation,
and TAL ADVANTAGE III LLC (together with its permitted successors and assigns,
the “Issuer”), a limited liability company organized under the laws of
Delaware.


 


W I T N E S S E T H:


 


WHEREAS, the Seller wishes
to transfer to the Issuer from time to time containers, leases and other
related assets, and the Issuer desires to acquire such assets from the Seller,
in each case on the terms and conditions set forth herein;


 


WHEREAS, the assets
transferred by the Seller to the Issuer hereunder will subsequently be pledged
by the Issuer to the Indenture Trustee as collateral for the Notes to be issued
from time to time pursuant to the terms of the Indenture;


 


NOW THEREFORE, in
consideration of the mutual covenants contained herein, and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto agree as follows:


 


ARTICLE I 


 


DEFINITIONS


 


SECTION 1.01               Definitions.  Capitalized terms used in this Agreement but
not defined herein shall have the meaning assigned to such terms in Appendix A
to the Indenture dated as of October 23, 2009, between the Issuer and
Wells Fargo Bank, National Association, as Indenture Trustee, as such Appendix
A may be amended, supplemented or otherwise modified from time to time in
accordance with the terms of the Indenture.


 


SECTION 1.02               General Interpretive
Principles.  For purposes of this
Agreement except as otherwise expressly provided or unless the context
otherwise requires:


 


(a)           the terms defined in this Agreement have the meanings
assigned to them in this Agreement and include the plural as well as the
singular, and the use of any gender herein shall be deemed to include the other
gender;


 


(b)           accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with Generally Accepted Accounting
Principles;


 


(c)           references herein to “Articles”, “Sections”, “Subsections”,
“paragraphs”, and other subdivisions without reference to a document are to
designated Articles, Sections, Subsections, paragraphs and other subdivisions
of this Agreement;


 

















 


(d)           a reference to a Subsection without further reference to a
Section is a reference to such Subsection as contained in the same Section in
which the reference appears, and this rule shall also apply to paragraphs
and other subdivisions;


 


(e)           the words “herein”, “hereof”, “hereunder” and other words
of similar import refer to this Agreement as a whole and not to any particular
provision; and


 


(f)            the term “include” or “including” shall mean without
limitation by reason of enumeration.


 


ARTICLE II 


 


TRANSFER OF CONTAINERS


 


SECTION 2.01               [Reserved]


 


SECTION 2.02               Transferred Containers and
Related Assets after the Closing Date.


 


(a)           Subsequent to the Closing Date, the Seller may, from time
to time, sell, transfer and convey, to the Issuer, and the Issuer may in its
sole discretion, acquire from the Seller, all of such Seller’s rights, title
and interest in, to and under such additional Containers and the Related Assets  with respect thereto (collectively, the “Additional
Transferred Assets”) as shall be identified from time to time on a Container
Transfer Certificate substantially in the form of Exhibit B hereto
to be delivered on such Transfer Date. 
The Seller and the Issuer hereby agree that the purchase price of such
Additional Transferred Assets (such purchase price, the “Additional Purchase
Price”) sold by the Seller on any such subsequent Transfer Date shall be an
amount equal to the sum of (x) the sum of the Net Book Values (determined
as of the last day of the month preceding such Transfer Date) of such additional
Containers and (y) the sum of the Fair Market Values of such Related
Assets.  The Additional Purchase Price
will be paid on the related Transfer Date in full.


 


At the option of the Seller,
some or all of the Additional Transferred Assets may be transferred by the
Seller to the Issuer as a capital contribution.


 


In connection with any
transfer of Additional Transferred Assets to the Issuer, the Seller shall, on
or prior to the respective Transfer Date, (i) execute and deliver each of
the documents set forth in Section 2.02(b) hereof, and (ii) complete
the actions required by Section 2.03 hereof.


 


(b)           In connection with any transfer of Transferred Assets by
the Seller to the Issuer in accordance with the provisions of Section 2.02
of this Agreement, the Seller shall execute and deliver to the Issuer  (and the Issuer shall deliver to the
Administrative Agent and the Indenture Trustee) on or before the related
Transfer Date, each of the following documents:


 


(i)            A
completed Container Transfer Certificate which certificate shall operate as an
assignment, without recourse, representation or warranty (except for the
representations and warranties specifically set forth in this Agreement) of all
such 


 


2

















 


Seller’s right, title, and interest in and to the Transferred Assets
identified in such Container Transfer Certificate;


 


(ii)           Completed
UCC financing statements and documents of similar import, if applicable,
described in Section 2.03(a) hereof, together with evidence of filing
of such financing statements, changes or similar documents, in the appropriate
filing offices and jurisdictions as may be required to perfect the Issuer’s
ownership of the Related Assets; and


 


(iii)          A supplement to the List of Containers (or, in the case of
the initial Transfer Date, the List of Containers itself).  Upon delivery of such supplement, the List of
Containers shall be deemed to have been amended to incorporate the information
contained in such supplement.


 


SECTION 2.03               Required
Financing Statements; Marking of Records.


 


(a)           In connection with the transfer by it on any Transfer
Date, the Seller agrees to record and file, at its own expense, the following
UCC financing statements (and/or amendments to previously filed UCC financing
statements) with respect to the Related Assets, such filings to be made (unless
otherwise requested by the Administrative Agent or any Series Enhancer) in
each case only to the extent necessary pursuant to applicable law to perfect
the ownership interest of the Issuer:


 


(i)            UCC
financing statements filed against the Seller and  covering the Transferred Assets.  Such financing statements (or documents of
similar import) shall be filed in the appropriate filing offices in the
jurisdiction in which the Seller is located (as defined in the UCC) or as
otherwise required under Applicable Law;


 


(ii)           UCC financing statements or documents of similar
import, evidencing the release of the security interest of any other Person
with respect to any of the Transferred Assets; and


 


(iii)          With respect to each Finance Lease included in the
Transferred Assets, a UCC financing statement (or document of similar import),
naming each lessee of Containers subject to such Finance Lease, as debtor, the
Seller, as secured party, and the Containers under such related Finance Lease
as collateral, such financing statement against the lessee shall be filed in
the appropriate filing offices in the jurisdiction in which the lessee is
located (as determined under the UCC); provided, however,
that the Seller shall not be required to change the name of the secured party
as of record in any such filing office.


 


All UCC
financing statements required pursuant to this Section 2.03 shall meet the
requirements of Applicable Law.  Nothing
contained in this Section 2.03 shall limit the Seller’s obligation to file
continuation or termination statements in accordance with Section 4.01(g) of
this Agreement and Applicable Law.


 


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The Seller
shall forward, promptly upon receipt, file-stamped copies of all UCC financing
documents described in paragraphs (i) and (ii) above to the Indenture
Trustee, the Administrative Agent and each Series Enhancer.


 


(b)           In connection with each transfer of
Transferred Assets, the Seller shall, at its own expense on or prior to each
Transfer Date, cause its master accounting and data processing records to be
marked to indicate that all right, title and interest in each Transferred Asset
has been irrevocably and absolutely transferred to the Issuer.


 


SECTION 2.04               General
Provisions Regarding All Transfers of Containers.


 


(a)           Except as specifically provided in
Sections 3.03 and 7.01 of this Agreement, all transfers of Transferred Assets
by the Seller to the Issuer pursuant to this Agreement shall be without
recourse to the Seller; it being understood
that the Seller shall be liable to the Issuer for all representations,
warranties, covenants and indemnities made by the Seller pursuant to the terms
of this Agreement, all of which representations, warranties, covenants and
indemnifications shall survive the transfer of such Transferred Assts
hereunder.  Notwithstanding any term or
provision of this Agreement, nothing in this Agreement shall create (or shall
be deemed to create) recourse to the Seller for (i) the failure of the
lessees under the Leases included in the Transferred Assets to make any
payments under such Leases or the Leases otherwise being uncollectible and/or (ii) the
failure of the Issuer to realize an amount equal to the sum of (x) the Net
Book Value of a Transferred Container and (y) the Fair Market Value of the
Related Assets with respect to such Transferred Containers.


 


(b)           The Seller and the Issuer intend all
transfers of Transferred Assets to be “true sales” or “true contributions” by
the Seller to the Issuer that are absolute and irrevocable and that provide the
Issuer with the full benefits of ownership of the Transferred Assets, and
neither the Seller nor the Issuer intend the transactions contemplated
hereunder to be, or for any purpose to be characterized as, loans from the
Issuer to the Seller.  It is, further,
not the intention of the Issuer or the Seller that the conveyance of the
Transferred Assets by the Seller be deemed a grant of a security interest in
the Transferred Assets by the Seller to the Issuer to secure a debt or other
obligation of the Seller.  However, in
the event that, notwithstanding the intent of the parties, any Transferred
Assets are considered to be property of the Seller’s estate, then (i) this
Agreement also shall be deemed to be and hereby is a security agreement within
the meaning of Applicable Law, and (ii) the conveyance by the Seller
provided for in this Agreement shall be deemed to be a grant by the Seller to
the Issuer of, and the Seller hereby grants to the Issuer, a security interest
in and to all of the Seller’s right, title and interest in, to and under the
Transferred Assets, whether now or hereafter existing or created, to secure (A) the
rights of the Issuer hereunder, (B) a loan by the Issuer to the Seller in
an amount equal to the sum of (1) the sum of the Net Book Values of all
Transferred Containers and (2) the sum of the Fair Market Values of all
Related Assets, in each case to the extent of all of the Transferred Containers
transferred or purported to be transferred by the Seller hereunder, (C) without
limiting the foregoing, the payment and performance of the Seller’s obligations
(whether monetary or otherwise) hereunder, and (D) payment to the Issuer
of all lease rentals, and other payments in respect of the Leases and proceeds
of the Transferred Assets transferred or purported to be transferred
hereunder.  The Seller and the Issuer
shall, to the extent consistent with this Agreement, take such actions as may
be necessary to ensure that, if this Agreement were deemed 


 


4

















 


to create a security
interest in the Transferred Assets, such security interest would be deemed to
be a perfected security interest of first priority in favor of the Issuer under
Applicable Law and will be maintained as such throughout the term of this
Agreement.  The Seller hereby irrevocably
authorizes the Issuer (and the Issuer hereby authorizes the Indenture Trustee
(as pledgee of the Issuer’s rights hereunder)), at any time, and from time to
time, to file in any filing office in any jurisdiction any initial financing
statements or documents of similar import and amendments thereto that (x) indicate
Transferred Assets as collateral regardless of whether any particular asset
included in the Transferred Assets falls within the scope of Article 9 of
the UCC, and (y) provide any other information required for the
sufficiency or filing office acceptance of any financing statement or document
of similar import or amendment.  The
Seller agrees to furnish any such information to the Issuer promptly upon the
Issuer’s request, and the Issuer agrees to furnish any such information to the
Indenture Trustee (as pledgee of the Issuer’s rights hereunder) promptly upon
the Indenture Trustee’s request.  The
Seller also ratifies its authorization for the Issuer and the Issuer also
ratifies its authorization for the Indenture Trustee having filed in any
jurisdiction any financing statements or documents of similar import or amendments
thereto if filed prior to the date hereof.


 


(c)           Consistent with the Issuer’s
ownership of the Transferred Assets, as between the parties to this Agreement,
the Issuer shall have the sole right to service, administer and collect the
Transferred Assets and to assign and/or delegate such right to others;


 


(d)           Except as specifically provided for
in Section 3.03 and Section 3.04 hereof, the Issuer shall have no
obligation to account to the Seller for the Transferred Assets.  The Issuer shall have no obligation to
account for, or to return rental payments on or with respect to any Transferred
Asset, or any interest or other finance charge collected pursuant thereto, to
the Seller, irrespective of whether such collections and charges are in excess
of the Additional Purchase Price of such Transferred Asset.  The Issuer shall have the sole right to
retain any gains or profits created by buying, selling or holding the
Transferred Assets and shall have the sole risk of and responsibility for
losses or damages created by such buying, selling or holding;


 


(e)           The Issuer shall have the
unrestricted right to further assign, transfer, deliver, hypothecate, subdivide
or otherwise deal with the Transferred Assets, and all of the Issuer’s right,
title and interest in, to and under this Agreement, on whatever terms the
Issuer shall determine, pursuant to this Agreement or otherwise.


 


ARTICLE
III 


 


REPRESENTATIONS
AND WARRANTIES


 


SECTION 3.01               Representations
and Warranties of the Seller.  The
Seller hereby makes the following representations and warranties.  The Issuer has relied upon such
representations and warranties in accepting the conveyance of the Transferred
Assets.  Such representations and warranties
are made only as of a Transfer Date with respect to the Transferred Assets
transferred to the Issuer on such date and, with respect to the representation
and warranty set forth in clause (v) below, as of the date which is two Business
Days following the later of the acquisition of the applicable Transferred Asset
by the Issuer or the inclusion of 


 


5

















 


the applicable Transferred
Asset in the Asset Base, but shall survive each
transfer and conveyance of the respective Transferred Assets to the Issuer.


 


(a)           Organization and Good Standing.  The Seller is a corporation duly organized,
validly existing and in compliance under the laws of the State of Delaware,
with power and authority to own its properties and to conduct its business as
such properties are currently owned and such business is currently conducted,
had at all relevant times, and now has, power, authority, and legal right to
acquire and own the Transferred Assets and to perform its obligations hereunder
and under any Transaction Document to which it is a party;


 


(b)           Due Qualification.  The Seller is qualified as a foreign
corporation in each jurisdiction where failure to be so qualified would have a
material adverse effect upon its business and has obtained all necessary
licenses and approvals as required under Applicable Law, in each case, where
the failure to be so qualified, licensed or approved, would reasonably be
expected to materially and adversely affect the ability of the Seller to
perform its obligations under and comply with the terms of this Agreement and
any other Transaction Document to which it is a party;


 


(c)           Power and Authority; Due Execution
and Delivery.  The Seller has the
corporate power and authority to execute and deliver this Agreement and any
other Transaction Document to which it is a party and to carry out the terms
thereof; the Seller has duly authorized the transfer and conveyance to the
Issuer of the Transferred Assets by all necessary corporate action; the
execution, delivery, and performance by the Seller of this Agreement and any
other Transaction Document to which it is a party has been duly authorized by
the Seller by all necessary corporate action and this Agreement and any other
Transaction Document to which it is a party have been duly executed and
delivered by the Seller;


 


(d)           Legal Name.  The legal name of the Seller is as set forth
on the signature page of the Seller for this Agreement, and, except as set
forth in Schedule 3.01 hereof, in the five years preceding the date of this
Agreement:  (a) the Seller has not
changed its name, the Seller has not used, and does not currently use, any
trade names, fictitious names, assumed names or “doing business as” names, and (b) the
Seller has not been known by any name other than “TAL International Container
Corporation”;


 


(e)           Valid Assignment; Binding
Obligations.  This Agreement
constitutes a valid transfer and conveyance to the Issuer of all right, title,
and interest of the Seller in, to and under the Transferred Assets and the
Transferred Assets will be held by the Issuer free and clear of any Lien of any
Person claiming through or under the Seller, except for Permitted Encumbrances;
and this Agreement and each other Transaction Document to which the Seller is a
party, when duly executed and delivered by the other parties thereto, will constitute
a legal, valid, and binding obligation of the Seller enforceable against the
Seller in accordance with its terms subject as to enforceability to applicable
bankruptcy, reorganization, insolvency, moratorium, fraudulent conveyance or
other laws affecting creditors’ rights generally and to general principles of
equity (regardless of whether enforcement is sought in a proceeding in equity
or at law);


 


6

















 


(f)            No Violation.  The consummation of the transactions
contemplated by and the fulfillment of the terms of this Agreement and the
Transaction Documents to which it is a party 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 charter documents
or by-laws of the Seller, or any material term of any indenture, agreement,
mortgage, deed of trust, or other instrument to which the Seller 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, other than this Agreement and the
Indenture, or violate any material provision of any law, order, rule, or
regulation applicable to the Seller of any court or of any federal or state
regulatory body, administrative agency, or other Governmental Authority having
jurisdiction over the Seller 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;


 


(g)           No Proceedings or Injunctions.  There are (i) no actions, suits,
proceedings or investigations pending, or, to the knowledge of the Seller,
threatened, before any court, regulatory body, administrative agency, or other
tribunal or Governmental Authority (A) asserting the invalidity of this
Agreement or any other Transaction Document to which it is a party, (B) seeking
to prevent the consummation of any of the transactions contemplated by this
Agreement or any other Transaction Document to which it is a party, or (C) seeking
any determination or ruling that might materially and adversely affect the
performance by the Seller of its obligations under, or the validity or
enforceability of, this Agreement or any other Transaction Document to which it
is a party, and (ii) no injunctions, writs, restraining orders or other
orders are in effect against the Seller that would materially and adversely affect
its ability to perform under this Agreement or any other Transaction Document
to which it is a party;


 


(h)           Compliance with Law.  The Seller:


 


(i)                         is not in violation of any laws, ordinances, governmental rules or
regulations or any court order to which it is subject or by which it is bound,
in each case the violation of which would reasonably be expected to materially
and adversely affect the ability of the Seller to perform its obligations under
this Agreement or any other Transaction Document to which it is a party; and


 


(ii)                      has obtained all licenses, permits, franchises or other governmental
authorizations necessary to the ownership of its property or to the conduct of
its business including, without limitation, with respect to transactions
contemplated by this Agreement and the other Transaction Documents to which it
is a party, in each case, other than any such license, permit, franchise or
other authorization the failure to so obtain will not reasonably be expected to
result in a Material Adverse Change;


 


(i)            Insolvency.  The Seller is not insolvent under the
Insolvency Law and will not be rendered insolvent by the transactions
contemplated by this Agreement; the Seller is


 


7














 


paying its debts as they
become due and, after giving effect to the transactions contemplated hereby,
will have adequate capital to conduct its business;


 


(j)                                     [Reserved];


 


(k)                                  Place of Business.  As of the Closing Date, the principal place
of business and chief executive office of the Seller and the place where the
accounting books and records of the Seller are maintained is located at its
address set forth in Section 8.03 and has been located at such address at
all times since the later of (i) the date of formation of the Seller, and (ii) the
date that is five years prior to the Closing Date;


 


(l)                                     Accounting and Tax Treatment.  The Seller will treat the transfer of the
Transferred Assets to the Issuer pursuant to this Agreement as a capital
contribution (in part) and sale (in part) of such Transferred Assets (which
allocation between capital contribution and sale will be determined in
accordance with Section 2.02 hereof) for financial reporting and
accounting purposes.  The Seller will
treat the transfer of the Transferred Assets as a transfer to an entity
disregarded as separate from its owner for U.S. federal, state and local income
tax purposes;


 


(m)                               Bulk Transfer Provisions.  No transfer, assignment or conveyance of the
Transferred Assets by the Seller to the Issuer contemplated by this Agreement
will be subject to the bulk transfer or any similar statutory provisions in
effect in any applicable jurisdiction;


 


(n)                                 All Representations and Warranties True.  All representations, warranties,
certifications and statements made by the Seller in any certificate or other
document delivered in connection with the closing of the transactions
contemplated by the Transaction Documents including all representations,
warranties, certifications and statements made to Mayer Brown LLP in support of
its opinions issued and delivered in connection with the issuance of the Notes
and each of the factual assumptions contained in such opinions, to the extent
compliance with such assumptions is in the control of the Seller, are true and
correct in all material respects as of the date made and do not omit or fail to
state a material fact necessary to make the statements contained therein not
misleading as of such date.


 


(o)                                 Approvals. 
All approvals, authorizations, consents, orders or other actions of any
Person required to be obtained by the Seller in order to execute and deliver
this Agreement and any other Transaction Documents to which it is a party have
been or will be taken or obtained on or prior to the Closing Date;


 


(p)                                 Financial Statements.  The consolidated balance sheet of TAL
International Group at December 31, 2008 and the consolidated statements
of income, retained earnings and cash flows for the twelve months ended on such
date, are accompanied by reports thereon containing opinions without
qualification, except as therein noted, by the independent accountants, have
been prepared in accordance with Generally Accepted Accounting Principles
consistently applied, and present fairly the financial position of TAL International
Group and its consolidated Subsidiaries (including the Seller) as of such dates
and the results of their operations for such periods;


 


8

















 


Since December 31,
2008 there has been no change in the business or financial condition of TAL
International Group and its consolidated Subsidiaries (including the Seller)
except as disclosed in TAL International Group’s financial reports, or changes
in the ordinary course of business, which individually or in the aggregate may
have been materially adverse.  Neither
TAL International Group nor any of its consolidated Subsidiaries (including the
Seller) has any material liabilities or obligations other than those disclosed
in the financial statements (including the notes thereto) referred to in the
preceding paragraph or for which adequate reserves are reflected in such
financial statements or which were incurred in the ordinary course of business
since the date of such financial statements;


 


(q)                                 Governmental Consent.  No consent, approval or authorization of, or
filing, registration or qualification with, any Governmental Authority is or
will be necessary or required on the part of the Seller in connection with the
execution, delivery, legality, binding effect or enforceability of this
Agreement or any other Transaction Document to which it is a party or the
transfer and conveyance of the Transferred Assets hereunder except for (A) the
filing of any financing statements and (B) such the failure of which to
make or obtain, individually or in the aggregate, would not reasonably be
expected to result in a material adverse effect on the Seller;


 


(r)                                    Investment Company.  The Seller is not an “investment company” or
a company controlled by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended;


 


(s)                                  Substantive Consolidation.  The Seller is operated such that the Issuer
would not be “substantively consolidated” in the bankruptcy estate of the
Seller and its separate existence disregarded in the event of the bankruptcy of
the Seller under any applicable Insolvency Law;


 


(t)                                    Financial Statements.  The financial statements and books and
records of the Seller will reflect the separate existence of the Issuer, the
annual consolidated financial statements of the Seller after the date hereof
will contain disclosures to the effect that the Seller has or will have one or
more direct and indirect Subsidiaries that were or may be established as
bankruptcy remote entities to facilitate asset securitization transactions;


 


(u)                                 Valid Business Purpose. 
The transfers and conveyances of Transferred Assets by the Seller to the
Issuer pursuant to the terms of this Agreement are being consummated by the
Seller in good faith, with no contemplation of insolvency and with no intent to
hinder, delay or defraud any of its present or future creditors of the Seller;


 


(v)                                 Title to Containers.  Immediately prior to the transfer of any
Transferred Asset to the Issuer pursuant to the terms of this Agreement, the
Seller had good and marketable title to such Transferred Asset, free and clear
of all Liens, except (i) Permitted Encumbrances and (ii) a manufacturer’s
or vendor’s lien for the unpaid purchase price of such Transferred Asset so
long as such unpaid purchase price is paid within two Business Days following
the later of the acquisition of such Transferred Asset by the Issuer or the
inclusion of such Transferred Asset in the Asset Base. The Seller has not authorized the filing of, and is not aware of, any
financing statements against the Seller that include a description of
collateral covering the Transferred


 


9

















 


Assets other than any
financing statement or document of similar import (i) in favor of the
Issuer pursuant to this Agreement or (ii) that has been terminated.  The Seller is not aware of any judgment or
tax lien filings against the Seller;


 


(w)                               Rights to Lease Agreements are Assignable.  The assignment of the rights with respect to
each Lease Agreement (to the extent related to a Transferred Container) and all
scheduled lease payments to become due thereunder (which relate to a
Transferred Container) pursuant to this Agreement does not violate the terms of
the applicable Lease Agreement and such assignment by the Seller is permitted
without the consent of any Person other than consents which will have been
obtained on or before the related Transfer Date;


 


(x)                                   All Necessary Action Taken.  Immediately after each of the transfers and
conveyances to the Issuer as contemplated in this Agreement, all necessary
action will have been taken by the Seller to validly transfer and convey to the
Issuer all right, title and interest of the Seller in and to the Transferred
Containers and the Related Assets;


 


(y)                                 Eligible Container.  As of the related Transfer Date for a
Container, such  Container is an
Eligible Container.


 


(z)                                   Ordinary Course of Business.  All Lease Agreements related to Transferred
Containers were originated in the ordinary course of business of the Seller’s
business and in accordance with the Credit and Collection Policy as in effect
on such origination date;


 


(aa)                            Binding Obligation.  Each Lease included in the Related Assets
being transferred to the Issuer on the applicable Transfer Date represents the
genuine, legal, valid and binding payment obligation in writing of the related
lessee, enforceable in accordance with its terms, except only as such
enforcement may be limited by bankruptcy, insolvency or similar laws affecting
the enforcement of creditors’ rights generally;


 


(bb)                          No Defenses. 
No right of rescission, setoff, counterclaim or defense exists or has
been asserted in writing or threatened in writing with respect to any Lease
included in the Related Assets being transferred to the Issuer on the
applicable Transfer Date.  The exercise
of any right under any such Lease will not render such Lease unenforceable in
whole or in part or subject to any such right of rescission, setoff,
counterclaim or defense;


 


(cc)                            Servicing. 
The servicing of each Lease included in the Related Assets and the
collection practices relating thereto have been lawful and in accordance with
the standards set forth in the Credit and Collection Policy;


 


(dd)                          Seller
Acquisition Cost.  One of the
following: (A) with respect to any Container originally acquired by the
Seller subsequent to August 1, 2005, the vendor’s or manufacturer’s
invoice price of such Container was representative of the market price of
containers of similar specifications with such vendor or manufacturer on the
date on which the Seller placed the order for such Container with the vendor or
manufacturer thereof; or (B) with respect to any Container not covered by
clause (A), the purchase price allocated to such container by the Seller was
reflective of the market value (as determined in the Issuer’s good faith
estimation) of such class of Container on the Closing Date;


 


10

















 


(ee)                            Creation of Security Interest.  In the event that, contrary to the intention
of the parties hereto, the transfer of the Transferred Assets pursuant to the
terms of this Agreement is held not to constitute a “true sale” or a “true
contribution”, this Agreement creates a valid and continuing security interest
(as defined in the UCC) in the Transferred Assets in favor of the Issuer, which
security interest is prior to all other Liens other than Permitted
Encumbrances, and is enforceable as such against creditors of and purchasers
from the Seller;


 


(ff)                                UCC Classification.  As of the Transfer Date for a Transferred
Container:  (x) such Transferred
Container constitutes “goods” within the meaning of the applicable UCC; (y) the
related Lease constitutes “tangible chattel paper” within the meaning of the
UCC; and (z) the lease receivables under such Lease constitute “accounts”
or “proceeds” of such Lease within the meaning of the UCC;


 


(gg)                          Perfection of Security Interest.  The Seller has caused the filing of all
appropriate financing statements or documents of similar import in the proper
filing office in the appropriate jurisdictions under Applicable Law in order to
perfect the Issuer’s ownership interest in the Transferred Assets.  All financing statements filed or to be filed
against the Seller in favor of the Issuer in connection herewith contain a
statement to the following effect:  “A
purchase of or any other security interest in any collateral described in this
financing statement will violate the rights of the Issuer and the Indenture
Trustee (as the pledgee of the Issuer)”;


 


(hh)                          Possession of Leases.  Aside from any original counterparts of such
Lease included in such Transferred Assets in the possession of the lessee, the
only other original counterpart(s) of such Lease is in the possession of
the Manager or an Affiliate of the Manager. 
Such Lease (to the extent that such Lease relates to the Transferred
Containers) does not have any marks or notations indicating that such Lease (to
the extent that such Lease relates to the Transferred Containers) has been
pledged, assigned or otherwise conveyed to any Person; and


 


(ii)                                  OFAC.  None of the Containers are leased, nor has
Seller consented to a sublease, to a Sanctioned Person or an entity organized
in a Sanctioned Country in a manner which would violate the laws of the United
States (other than pursuant to a license issued by OFAC).  None of the Seller, any Subsidiary of the
Seller or, to the knowledge of the Seller, any Affiliate of the Seller (i) is
a Sanctioned Person, (ii) has, to the knowledge of the Seller, any of its
assets in Sanctioned Countries, and (iii) derives any of its operating
income from investments in, or transactions with, Sanctioned Persons or
Sanctioned Countries. The Purchase Price will not be used by the Seller, any
Subsidiary of the Seller or, to the knowledge of the Seller, any Affiliate of
the Seller, and has not been used to fund any operations in, finance any
investments or activities in or make any payments to, a Sanctioned Person or a
Sanctioned Country.


 


SECTION 3.02                                            Representations and Warranties of the Issuer.  The Issuer hereby makes the following
representations and warranties.  The
Seller has relied upon such representations and warranties in transferring the
Transferred Assets to the Issuer.  Such
representations and warranties speak only as of the Transfer Date with respect
to the Transferred Assets transferred to the Issuer on such date, but shall
survive each transfer and conveyance of the respective Transferred Assets to
the Issuer.


 


11

















 


(a)                                  Organization and Good Standing.  The Issuer is a limited liability company
duly organized and validly existing in compliance under the laws of the State
of Delaware, with full corporate power and authority to own and operate its
properties and to conduct its business as presently conducted and to enter into
and perform its obligations under this Agreement and each other Transaction
Document to which it is a party and the transactions contemplated hereby and
thereby;


 


(b)                                 Due Qualification.  The Issuer is duly qualified to do business
as a foreign company in good standing, and has obtained all necessary licenses
and approvals in all jurisdictions in which the ownership or lease of property
or the conduct of its business requires such qualification, except to the
extent that the failure to be so qualified, licensed or approved would not, in
the aggregate, materially and adversely affect the ability of the Issuer to
perform its obligations under and comply with the terms of this Agreement or
any other Transaction Documents to which it is a party;


 


(c)                                  Power and Authority.  The Issuer has the corporate power and
authority to execute and deliver this Agreement and to carry out its terms; and
the execution, delivery, and performance of this Agreement by the Issuer have
been duly authorized by the Issuer by all necessary company action;


 


(d)                                 Binding Obligations.  This Agreement and each other Transaction
Document to which the Issuer is a party, when duly executed and delivered by
the other parties hereto or thereto, will constitute a legal, valid, and binding
obligation of the Issuer enforceable in accordance with its terms subject as to
enforceability to applicable bankruptcy, reorganization, insolvency, moratorium
or other laws affecting creditors’ rights generally and to general principles
of equity (regardless of whether enforcement is sought in a proceeding in
equity or at law);


 


(e)                                  No Violation. 
The consummation of the transactions contemplated by and the fulfillment
of the terms of this Agreement and the Transaction Documents to which it is a
party 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 charter documents or by-laws of the Issuer, or any
material term of any indenture, agreement, mortgage, deed of trust, or other
instrument to which the Issuer 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, other than pursuant to the Indenture, or violate any law or any
order, rule, or regulation applicable to the Issuer of any court or of any
federal or state regulatory body, administrative agency, or other Governmental
Authority having jurisdiction over the Issuer or any of its properties;


 


(f)                                    No Proceedings or Injunctions.  There are (i) no proceedings or
investigations to which the Issuer is a party pending or, to the knowledge of
Issuer, threatened before any court, regulatory body, administrative agency or
other tribunal or Governmental Authority (A) asserting the invalidity of
this Agreement or any of the other Transaction Documents to which the Issuer is
a party, (B) seeking to prevent the consummation of any of the transactions
contemplated by this Agreement or any of the other Transaction Documents to
which the Issuer is a party, or (C) seeking any determination or ruling
that would materially and


 


12

















 


adversely affect the
performance by the Issuer of its obligations under, or the validity or
enforceability of, this Agreement or the other Transaction Documents to which
the Issuer is a party and (ii) no injunctions, writs, restraining orders
or other orders are in effect against the Issuer that would adversely affect
its ability to perform under this Agreement or the other Transaction Documents
to which it is a party;


 


(g)                                 Approvals. 
All approvals, authorizations, consents, orders or other actions of any
Person required to be obtained by the Issuer in connection with the execution
and delivery of this Agreement or any other Transaction Document to which it is
a party have been or will be taken or obtained on or prior to the Closing Date;


 


(h)                                 Solvency. 
The Issuer is not insolvent under the Insolvency Law and will not be
rendered insolvent by the transactions contemplated by this Agreement; the
Issuer is paying its debts as they become due and, after giving effect to the
transactions contemplated hereby, will have adequate capital to conduct its
business;


 


(i)                                     Principal
Place of Business; Trade Names.  The Issuer is a limited liability company
organized under the laws of the State of Delaware.  The Issuer’s only “place of business” (as
such term is referred to in Section 9-307 of the UCC) and its “chief
executive office” (as such term is referred to in Section 9-307 of the
UCC) is located at and has been located at such address at all times since the
date of formation of the Issuer, and the accounting books and records of the Issuer
are maintained at its address determined in accordance with
Section 8.03.  The Issuer has not
been known by any name other than “TAL ADVANTAGE III LLC”;


 


(j)                                     Accounting and Tax Treatment.  The Issuer will treat the transfer of the
Transferred Assets to the Issuer by the Seller pursuant to this Agreement as a
capital contribution (in part) and sale (in part) of such Transferred Assets by
the Seller (which allocation between capital contribution and sale will be
determined in accordance with Section 2.02 hereof) for financial reporting
and accounting purposes.  The Issuer will
treat the transfer of the Transferred Assets to the Issuer as a transfer to an
entity disregarded as separate from its owner for U.S. federal, state and local
income tax purposes;


 


(k)                                  Investment Company.  The Issuer is not an “investment company” or
a company controlled by an “investment company” within the meaning of the
Investment Company Act of 1940, as amended;


 


(l)                                     Separateness. 
The Issuer: (1) conducts its business in its own name, it being
understood that the Issuer’s business will be managed by the Manager in
accordance with the terms of the Management Agreement, (2) maintains its
books and records separate from those of any other Person, (3) does not
commingle its funds with any other Person (except for any commingling of
Collections which may occur prior to the identification and segregation of such
amounts in accordance with the terms of the Management Agreement), (4) maintains
separate financial statements, showing its assets and liabilities separate and
apart from those of any other Person, (5) holds itself out as a separate
entity, and (6) observes all other organizational formalities;


 


13

















 


(m)                               All Representations and Warranties True.  All representations, warranties,
certifications and statements made by Issuer in any certificate or document
delivered in connection with the closing of the transactions contemplated by
the Transaction Documents including all representations, warranties,
certifications and statements made by the Issuer to Mayer Brown LLP in support
of its opinions issued and delivered in connection with the issuance of the
Notes and each of the factual assumptions contained in such opinions, to the
extent compliance with such assumptions is in the control of the Issuer, are
true and correct in all material respects as of the date made and do not omit
to state a material fact necessary to make the statements contained therein not
misleading as of such date;


 


(n)                                 Financial Statements.  The financial statements and books and
records of the Issuer will reflect the separate existence of the Issuer and the
Seller;


 


(o)                                 No Subsidiaries. 
The Issuer has no Subsidiaries;


 


(p)                                 Ordinary Course. 
The transactions contemplated by this Agreement are being consummated by
the Issuer in good faith and in furtherance of the Issuer’s ordinary business
purposes, with no contemplation of insolvency and with no intent to hinder,
delay or defraud any of its present or future creditors; and


 


(q)                                 OFAC.  None of the Containers are leased, nor has
the Issuer consented to a sublease, to a Sanctioned Person or an entity
organized in a Sanctioned Country in a manner which would violate the laws of
the United States (other than pursuant to a license issued by OFAC).  The Issuer (i) is not a Sanctioned
Person, (ii) does not, to the knowledge of the Issuer, have any of its
assets in Sanctioned Countries, and (iii) derives any  of its operating income from investments in,
or transactions with, Sanctioned Persons or Sanctioned Countries. The Purchase
Price will not be used and has not been used by the Issuer to fund any
operations in, finance any investments or activities in or make any payments
to, a Sanctioned Person or a Sanctioned Country.


 


SECTION 3.03                                            Breach of Representations and Warranties Regarding Certain Transferred
Assets.


 


(a)                                  Upon discovery by the Seller or the Issuer (or any of their respective
successors or permitted assigns) of a breach of any of the Container
Representations and Warranties made by the Seller on the related Transfer Date,
the party (including any such successor or permitted assign) discovering such
breach shall give prompt written notice to the other party (and the Issuer
shall give prompt notice thereof to each of the Indenture Trustee and the
Administrative Agent).  If the Issuer (or
its successors or permitted assigns) reasonably determines that such breach
materially and adversely affects the interests of the Issuer or its successors
and permitted assigns, then, unless the breach shall have been cured, or waived
by the Issuer, within thirty (30) days after the receipt by the Seller of
written notice of such breach from the Issuer (or its successors and permitted
assigns), the Seller shall, on or prior to such thirtieth (30th) day,
repurchase the applicable Container (and all Related Assets with respect
thereto) by paying the Warranty Purchase Amount to the Issuer for deposit into
the Trust Account and, upon deposit of such payment in the Trust Account, such
repurchase shall occur automatically without further action by any Person.


 


14

















 


(b)                                 The Issuer agrees that the obligation of the Seller to make the
indemnification payments pursuant to this Section 3.03 shall constitute
the sole remedy available against the Seller by the Issuer and its successors
and permitted assigns for breach of a Container Representation or Warranty; provided, however, that nothing contained
herein shall derogate from the Seller’s indemnification obligations set forth
in Section 7.01 hereof for matters other than a breach of a Container
Representation and Warranty.


 


SECTION 3.04                                            Substitute Container.


 


(a)                                  The Seller will have the right (exercisable solely at its option) at any
time to transfer to the Issuer one or more Containers and Related Assets (such
Containers and Related Assets, collectively, a “Substitute Container”) in
substitution for one or more Transferred Containers and Related Assets (such
Transferred Containers and Related Assets, collectively, a “Predecessor
Container”) if:


 


(i)                                     the Predecessor Container is required to be repurchased pursuant to Section 3.03
hereof;


 


(ii)                                  after giving effect to such substitution, no Asset Base Deficiency shall
exist;


 


(iii)                               the Substitute Container, when considered with all other Eligible
Containers, will satisfy the Concentration Limits; and


 


(iv)                              the ownership of such containers by the Issuer will not result in an Early
Amortization Event.


 


If more
than one Substitute Container is being transferred on any date, the criteria
set forth in clause (ii) above shall be determined on an aggregate basis.


 


(b)                                 Any substitution pursuant to this Section 3.04 shall become effective
upon compliance with the provisions of Section 2.02(b) hereof.  Upon the effectiveness of such substitution,
the Predecessor Container shall automatically be reconveyed by the Issuer to
the Seller without further action by any Person.


 


ARTICLE
IV



COVENANTS OF THE SELLER


 


SECTION 4.01                                            Seller Covenants. 
Seller hereby covenants and agrees with the Issuer (and its successors
and assigns) as follows:


 


(a)                                  Merger or Consolidation of, or Assumption of the Obligations of, the Seller.  Notwithstanding anything in this
Agreement to the contrary, any Person (i) into which the Seller may be
merged or consolidated, (ii) resulting from any merger, conversion, or
consolidation to which the Seller shall be party, or (iii) succeeding to
the business of the Seller substantially as a whole, will be the successor to
the Seller under this Agreement, without the execution or filing of any
document or any further act on the part of any of the parties to this


 


15

















 


Agreement; provided,
however, that the Seller shall not enter into any merger or consolidation
unless (x) immediately after giving effect to such transaction, no Event
of Default or Early Amortization Event shall result therefrom, (y) the
Seller shall have delivered to the Issuer, an Officer’s Certificate and an
Opinion of Counsel (which the Issuer shall forward to the Indenture Trustee and
the Administrative Agent) each stating that such consolidation, merger, or
succession complies with this Section 4.01 and that all conditions
precedent, if any, provided for in this Agreement relating to such transaction have
been complied with and (z) the Seller shall have delivered to the Issuer
an Opinion of Counsel (which the Issuer shall forward to the Indenture Trustee
and the Administrative Agent), either (1) stating that, in the opinion of
such counsel, all financing statements or other documents of similar import,
and amendments thereto have been executed (if applicable) and filed that are
necessary fully to perfect the interest of the Issuer in the Transferred
Assets, or (2) stating that, in the opinion of such counsel, no such
action shall be necessary to perfect such interest.


 


(b)                                 Limitation on Liability of the Seller and Others.  The Seller and any director,
officer, employee or agent of the Seller may rely in good faith on any document
of any kind, prima facie properly executed and submitted by any Person
respecting any matters arising under this Agreement; provided, however, that
any such limitation does not affect the obligation of the Seller to accept
reconveyance of certain Containers and the Related Assets and to pay the
consideration therefor pursuant to Section 3.03.  The Seller in its capacity as such shall not
be under any obligation to appear in, prosecute, or defend any legal action
that is not incidental to its obligations as the transferor of the Transferred
Assets under this Agreement and that in its opinion may involve it in any
expense or liability.


 


(c)                                  Preservation of Name, etc.  The Seller will not change its name,
identity, location of chief executive office, jurisdiction of incorporation or
corporate structure in any manner that would make ineffective any financing
statement, continuation statement, or documents of similar import, filed by the
Seller in accordance with Section 2.03 above unless (i) the Seller
shall have given the Issuer at least thirty (30) days’ prior written notice
thereof (which the Issuer promptly shall forward to the Indenture Trustee and
the Administrative Agent), (ii) the Seller shall have filed any necessary
financing statements or amendments thereof or documents of similar import
necessary to continue the effectiveness of any financing statement or document
of similar import referred to in Section 2.03 above and (iii) the
Seller shall have delivered to the Issuer one or more Opinions of Counsel
(which the Issuer promptly shall forward to the Indenture Trustee and the
Administrative Agent), stating that, after giving effect to such change in
name, identity, location of chief executive office, jurisdiction of
incorporation or corporate structure: (A) the Seller and the Issuer will
not, pursuant to applicable Insolvency Law, be substantively consolidated in
the event of any Insolvency Proceeding by, or against, the Seller, (B) under
applicable Insolvency Law, the transfers of Transferred Assets made in
accordance with the terms of this Agreement will be treated as a “true sale” in
the event of any Insolvency Proceeding by, or against, the Seller and (C) either
(1) in the opinion of such counsel, all financing statements or other
documents of similar import, and amendments thereto have been executed (if
applicable) and filed that are necessary fully to perfect the interest of the
Issuer in the Transferred Assets, or (2) stating that, in the opinion of
such counsel, no such action shall be necessary to perfect such interest; provided
that the opinions described in clause (A) and clause (B) shall not be
required unless,  as a result of
the Seller’s change of chief executive office or jurisdiction of incorporation,
the Seller’s chief executive office or the Seller’s jurisdiction of


 


16

















 


location is outside of the
United States.  The Seller shall observe
all formalities necessary to maintain its corporate existence, subject to its
rights under Section 4.01(a), and shall maintain all licenses, permits,
charters and registration, the suspension of which or the failure to hold
which, would reasonably be expected to result in a Material Adverse Change.


 


(d)                                 Books and Records.  The Seller will, at its own cost and expense,
mark its books and records (which may include computerized records) to the
effect that each Transferred Container and Related Assets have been transferred
to the Issuer.


 


(e)                                  Compliance with Law.  The Seller will comply, in all material
respects, with all acts, rules, regulations, orders, decrees and directions of
any Governmental Authority except for any such noncompliance which would not
reasonably be expected to result in a Material Adverse Change; provided,
however, that the Seller may contest any act, rule, regulation, order,
decree or direction in any reasonable manner which shall not materially and
adversely affect the rights of the Issuer, the Noteholders, any Series Enhancers
or the Indenture Trustee in the Transferred Assets.


 


(f)                                    Conveyance of Transferred Assets; Security Interests.  Except for the transfers and
conveyances hereunder, the Seller will not pledge, assign or transfer to any
other Person, or grant, create, incur or assume any Lien other than Permitted
Encumbrances on, any Transferred Asset, or any interest therein and the Seller
shall defend the right, title, and interest of the Issuer and its successors
and assigns in, to, and under the Transferred Assets, against all claims of
third parties claiming through or under the Seller.


 


(g)                                 Notification of Breach.  The Seller will advise the Issuer promptly,
in reasonable detail, upon discovery of the occurrence of any breach in any
material respect by the Seller of any of its representations, warranties and
covenants contained herein or in any other Transaction Documents (and the
Issuer promptly shall forward such notice to the Administrative Agent and the
Indenture Trustee).


 


(h)                                 Further Assurances.  The Seller will make, execute or endorse,
acknowledge and file or deliver to the Issuer from time to time such UCC
financing statements or documents of similar import (including any termination
or continuation statements), schedules, confirmatory assignments, conveyances,
transfer endorsements, powers of attorney, certificates, reports and other
assurances or instruments and take such further steps relating to the
Transferred Assets and other rights covered by this Agreement, as the Issuer or
its successors and assigns may reasonably request.  Any such requested UCC financing statement or
document of similar import must be required pursuant to Applicable Law to fully
preserve, maintain, and protect the interest of the Issuer under this Agreement
in the Transferred Assets.  The Seller
shall comply with the terms and provisions of the UNIDROIT Convention or any
other internationally recognized system for recording interests in or license
against shipping containers at the time that such convention is adopted by the
container leasing industry.


 


(i)                                     Notice of Liens. 
The Seller shall notify the Issuer promptly after becoming aware of any
Lien other than Permitted Encumbrances on the Transferred Assets (and the
Issuer promptly shall forward such notice to the Administrative Agent and the
Indenture Trustee).


 


17














 


(j)                                     Transfer Taxes. 
The Seller shall pay any transfer taxes, if any, required to be paid in
connection with the conveyance of the Transferred Assets by the Seller to the
Issuer and acknowledges that the Issuer shall have no responsibility with
respect thereto.


 


(k)                                  No Bankruptcy Petition Against the Issuer.  The Seller will not, prior to the date that
is one year and one day after the payment in full of all amounts owing pursuant
to the Indenture, this Agreement and the Transaction Documents, institute against
the Issuer, or join any other Person in instituting against the Issuer, any
bankruptcy, reorganization, arrangement, insolvency or liquidation proceedings
or other similar proceedings under the laws of any applicable jurisdiction.  This subsection 4.01(k) shall survive
the termination of this Agreement.


 


(l)                                     ERISA. 
The Seller agrees to indemnify, defend and hold the Issuer harmless from
and against any and all loss, liability, damage, judgment, claim, deficiency,
or expense (including interest, penalties, reasonable and documented attorneys’
fees and amounts paid in settlement) to which the Issuer may become subject
insofar as such loss, liability, damage, judgment, claim, deficiency or expense
arises out of any Plan of the Seller.


 


(m)                               Issuer’s Ownership.  The Seller shall take no action inconsistent
with the Issuer’s ownership of the Managed Containers (except for such actions
as are specifically authorized in the Management Agreement).


 


(n)                                 Access to
Information; Notices.  In the
event that the Seller is no longer the Manager, the Seller shall continue to
make available to the Issuer, the Indenture Trustee and each Series Enhancer
its books and records concerning the Transferred Assets, subject to the terms
and limitations set forth in Section 3.10.2 of the Management Agreement.


 


SECTION 4.02                                            Pledge of Transferred Assets.  The Seller understands that the Issuer has
pledged the Transferred Assets and its rights under this Agreement to the
Indenture Trustee under the Indenture, and consents to such pledge.  The Seller agrees that the Indenture Trustee
may exercise the rights of the Issuer hereunder.


 


ARTICLE V



CONDITIONS PRECEDENT


 


SECTION 5.01                                            Conditions to Issuer Obligations.  The obligations of the Issuer to acquire
Transferred Assets on any Transfer Date occurring on or after the Closing Date
shall be subject to the satisfaction of the following conditions (in addition
to the procedures required by Section 2.02(b)):


 


(a)                                  All representations and warranties of the Seller contained in this
Agreement shall be true and correct in all material respects on such Transfer
Date (including without limitation the Container Representations and
Warranties);


 


(b)                                 All written information concerning the Transferred Assets provided by the
Seller to the Issuer shall be true and correct in all material respects;


 


18

















 


(c)                                  The Seller shall have materially performed all other obligations required
to be performed by the Seller pursuant to the provisions of this Agreement and
the other Transaction Documents to which it is a party other than any such
obligation the failure to so perform shall have not materially and adversely
affected the interests of the Issuer;


 


(d)                                 All corporate and legal proceedings and all instruments in connection with
the transactions contemplated by this Agreement shall be satisfactory in form
and substance to the Issuer, and the Issuer shall have received from the Seller
copies of all documents (including without limitation records of corporate
proceedings) relevant to the transactions herein contemplated as the Issuer may
reasonably have requested;


 


(e)                                  No Event of Default, Early Amortization Event or Manager Default shall have
occurred and then be continuing (other than any such Event of Default, Early
Amortization Event or Manager Default that will be cured upon the consummation
of such acquisition) or result from the acquisition of such Transferred Assets;
and


 


(f)                                    The Issuer has adequate means of financing available in order to complete
the acquisition of such Transferred Assets.


 


Notwithstanding the foregoing conditions precedent, upon the
making of a transfer of Transferred Assets hereunder, all of Issuer’s rights
under this Agreement (and by operation of law) shall vest in Issuer, whether or
not the conditions precedent to such transfer were in fact satisfied.


 


SECTION 5.02                                            Conditions to the Seller’s Obligations.  The obligations of the Seller to convey and
contribute the Transferred Assets on any Transfer Date occurring on or after
the Closing Date shall be subject to the satisfaction of the following
conditions (in addition to the procedures required by Section 2.02
hereof):


 


(a)                                  All representations and warranties of the Issuer contained in this
Agreement shall be true and correct with the same effect as though such
representations and warranties had been made on such date; and


 


(b)                                 All corporate and legal proceedings and all instruments in connection with
the transactions contemplated by this Agreement shall be satisfactory in form
and substance to the Seller, and the Seller shall have received from the Issuer
copies of all documents (including without limitation records of corporate
proceedings) relevant to the transactions herein contemplated as the Seller may
reasonably have requested.


 


SECTION 5.03                                            Waiver of Conditions.  None of the conditions precedent set forth in
Section 5.01 or Section 5.02 may be waived without the prior written
consent of the Issuer and Indenture Trustee (acting at the direction of the
Requisite Global Majority) in each such instance.


 


19

















 


ARTICLE VI



TERMINATION


 


SECTION 6.01                                            Termination. 
The respective obligations and responsibilities of the Seller and the
Issuer created by this Agreement shall not terminate prior to payment in full
of all Outstanding Obligations.


 


SECTION 6.02                                            Effect of Termination.  No termination or rejection or failure to
assume the executory obligations of this Agreement in the bankruptcy of the
Seller or the Issuer shall be deemed to impair or affect the obligations
pertaining to any executed conveyance or executed obligations, including
without limitation breaches of representations and warranties by the Seller or
the Issuer occurring prior to the date of such termination.  Without limiting the foregoing, prior to
termination, neither the failure of the parties to execute and to deliver a
Container Transfer Certificate pursuant to Section 2.02, nor the failure
of the Issuer to pay in cash or kind the compensation therefor shall render
such transfer or obligation executory, nor shall the continued duties of the
parties pursuant to Article IV or Section 8.06 of this Agreement
render an executed conveyance executory.


 


ARTICLE VII



INDEMNIFICATION PAYMENTS


 


SECTION 7.01                                            Indemnification. 
Subject to Section 3.03 hereof, the Seller agrees to indemnify and
hold harmless the Issuer, its successors and assigns (which includes the
third-party beneficiaries specified in Section 8.13) and their respective
officers, directors, employees, counsel and agents (each, an “Indemnified Party”)
against any and all liabilities, losses, damages, penalties, costs and expenses
(including reasonable and documented out-of-pocket costs of defense and legal
fees (of one counsel) but excluding (A) any special, consequential or
punitive damages and (B) any damages on the basis of lost profits) which
may be incurred or suffered by such Indemnified Party (except to the extent
caused by the gross negligence, bad faith or willful misconduct of the
Indemnified Party) as a result of (i) a breach by the Seller of any of its
covenants and agreements set forth in this Agreement; (ii) any
representation or warranty of the Seller proven to have been false or
misleading in any material respect when made or deemed made in this Agreement; (iii) any
information certified in any certificate or document delivered by the Seller
pursuant hereto not being true in any material respect as of the date of such
certificate or document (or, if earlier, the date set forth in such certificate
or document); (iv) any personal injury or property damage claim or action
arising out of or in connection with any of the Transferred Assets in
connection with any act or omission prior to the related Transfer Date; (v) any
defense, setoff or counterclaim arising out of any acts or omissions of the
Seller with respect to any Transferred Assets transferred on or before the
related Transfer Date; or (vi) any attempt by any Person to void, rescind
or set aside any transfer of the Seller’s right, title and interest in the
Transferred Assets to the Issuer as provided herein under statutory provisions
or common law or equitable action, including any provision of the Bankruptcy
Code or other insolvency law.  The
obligations of the Seller under this Section 7.01 shall survive the
termination of this Agreement.  It is
expressly agreed and understood that this Section does not (and shall not
be deemed to) create recourse to the Seller for the 


 


20

















 


creditworthiness of any lessee or, for avoidance of doubt,
for losses due to a lessee’s failure to make payments under a Lease or for the
uncollectibility of the Leases.


 


SECTION 7.02                                            Procedure for Indemnification.  Promptly after receipt by an Indemnified
Party of notice of the assertion of a claim or the commencement of a proceeding
by a third-party with respect to any matter referred to in Section 7.01
which could be the subject of an indemnification claim against the Seller
hereunder, such Indemnified Party shall give written notice thereof to the Seller
and thereafter shall keep the Seller reasonably informed with respect thereto;
provided, however, that failure of an Indemnified Party to give the Seller
written notice as provided herein shall not relieve the Seller of its
obligations hereunder except to the extent that the Seller (x) incurs any
incremental costs directly related to the delay in failing to provide such
notice within a reasonable period of time or (y) is otherwise materially
and adversely prejudiced by such failure. 
If any such proceeding (including any litigation, arbitration or similar
proceeding) shall be brought against any Indemnified Party, the Seller shall be
entitled to assume the defense thereof at the Seller’s expense with counsel
chosen by the Seller and reasonably satisfactory to such Indemnified Party;
provided, however, that any Indemnified Party may at its own expense retain
separate counsel to participate in such defense.  The Seller shall not be liable under this Article VII
for any amount paid in settlement of such claims or proceedings without the
consent of the Seller unless such consent is unreasonably withheld.


 


ARTICLE VIII



MISCELLANEOUS PROVISIONS


 


SECTION 8.01                                            Amendment. 
This Agreement may be amended from time to time by the Seller and the
Issuer only with the prior written consent of the Indenture Trustee (acting at
the direction of 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, with the consent of the Persons set forth
in Section 1002(a) of the Indenture); 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 Section 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, 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 Issuer shall
forward copies of any amendment to this Agreement to the Administrative Agent,
each Series Enhancer (so long as such Series Enhancer is the Control
Party for a Series of Outstanding Notes) and, if any Series of Notes
Outstanding is then rated, the applicable Rating Agencies.


 


SECTION 8.02                                            Governing Law. 
THIS AGREEMENT AND ANY AMENDMENT HEREOF PURSUANT TO SECTION 8.01
SHALL BE CONSTRUED IN 


 


21

















 


ACCORDANCE WITH AND GOVERNED BY THE SUBSTANTIVE LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTIONS 5-1401 AND 5-1402 OF THE NEW YORK GENERAL
OBLIGATIONS LAW BUT WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES) APPLICABLE TO
AGREEMENTS MADE AND TO BE PERFORMED THEREIN AND THE OBLIGATIONS, RIGHTS, AND
REMEDIES OF THE PARTIES UNDER THIS AGREEMENT SHALL BE DETERMINED IN ACCORDANCE
WITH SUCH LAWS.


 


SECTION 8.03                                            Notices. 
All demands, notices, and communications under this Agreement shall be
in writing personally delivered, or sent by facsimile (with subsequent
telephone confirmation of receipt thereof) or sent by internationally
recognized overnight courier service, at the following address:


 


	
  Seller:

  	
  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

  
	
   

  	
   

  
	
  Issuer:

  	
  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

  
	
   

  	
   

  
	
  Indenture Trustee:

  	
  Wells
  Fargo Bank, National Association

  MAC N9311-161

  Sixth
  Street and Marquette Avenue

  Minneapolis,
  Minnesota  55479

  
	
   

  	
  Attn:

  	
  Corporate
  Trust Services - Asset-Backed Administration

  
	
   

  	
  Fax:

  	
  (612)
  667-8058

  



 


22

















 


	
  Administrative Agent:

  	
  Wells
  Fargo Securities, LLC

  301 S.
  College Street

  One
  Wachovia Center

  Charlotte,
  North Carolina  28288

  
	
   

  	
  Attn:

  	
  Jerri
  Kallam

  
	
   

  	
  Fax:

  	
  (704)
  374-3254

  
	
   

  	
  Email:

  	
  jerri.kallam@wellsfargo.com

  
	
   

  	
   

  
	
  Hedge Counterparty:

  	
  shall be
  set forth in any related Hedge Agreement

  



 


or at such other address as shall be designated by such
party in a written notice to the other parties. 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. Any rights
to notices conveyed to a Rating Agency pursuant to the terms of the Indenture
with respect to any Series shall terminate immediately if such Rating Agency
no longer has a rating outstanding with respect to such Series.


 


Wherever notice or a report is required to be given or
delivered to or from any party pursuant to this Agreement, a copy of such
notice or report shall also be given or delivered by the Issuer to the
Administrative Agent and the Indenture Trustee.


 


SECTION 8.04                                            Severability of Provisions.  If any one or more of the covenants,
agreements, provisions, or terms of this Agreement shall be for any reason
whatsoever held invalid, then such covenants, agreements, provisions, or terms
shall be deemed severable from the remaining covenants, agreements, provisions,
or terms of this Agreement and shall in no way affect the validity or
enforceability of the other provisions of this Agreement.


 


SECTION 8.05                                            Assignment. 
Notwithstanding anything to the contrary contained in this Agreement,
this Agreement may not be assigned by the Seller except as provided in Section 4.01(a),
without the prior written consent of the Issuer and the Indenture Trustee at
the direction of the Requisite Global Majority and, except as provided in Section 4.02,
this Agreement may not be assigned by the Issuer without the prior written
consent of the Requisite Global Majority. 
Whether or not expressly stated, all representations, warranties,
covenants and agreements of the Seller and the Issuer in this Agreement, or in
any document delivered by any of them in connection with this Agreement, shall
be for the benefit of, and (in the case of rights of the Issuer) shall be
exercisable by, the Indenture Trustee or by any other representative of the
Requisite Global Majority.


 


SECTION 8.06                                            Further Assurances.  Each of the Seller and the Issuer agrees to
do such further acts and things and to execute and deliver such additional
assignments, 


 


23

















 


agreements, powers and instruments as are reasonably
required to carry into effect the purposes of this Agreement.


 


SECTION 8.07                                            Waiver; Cumulative Remedies.  No failure to exercise and no delay in
exercising, on the part of the Issuer or the Seller, any right, remedy, power
or privilege hereunder, shall operate as a waiver thereof; nor shall any single
or partial exercise of any right, remedy, power or privilege hereunder preclude
any other or further exercise hereof or the exercise of any other right,
remedy, power or privilege.  The rights,
remedies, powers and privileges herein provided are cumulative and not
exhaustive of any rights, remedies, powers and privilege provided by law.


 


SECTION 8.08                                            Counterparts. 
This Agreement may be executed in two or more counterparts (and by
different parties on separate counterparts), each of which shall be an
original, but all of which shall constitute one and the same instrument.  Delivery of an executed counterpart of this
Agreement by facsimile or by electronic means shall be equally effective as of
the delivery of an originally executed counterpart.


 


SECTION 8.09                                            Binding. 
This Agreement will inure to the benefit of and be binding upon the
parties hereto and their respective successors and permitted assigns.


 


SECTION 8.10                                            Merger and Integration.  Except as specifically stated otherwise
herein, this Agreement sets forth the entire understanding of the parties
relating to the subject matter hereof, and all prior understandings, written or
oral, are superseded by this Agreement.


 


SECTION 8.11                                            Headings. 
The headings herein are for purposes of reference only and shall not
otherwise affect the meaning or interpretation of any provision hereof.


 


SECTION 8.12                                            Schedules and Exhibits.  The schedules and exhibits attached hereto
and referred to herein shall constitute a part of this Agreement and are
incorporated into this Agreement for all purposes.


 


SECTION 8.13                                            Intended Third Party Beneficiaries.  Each of the Administrative Agent, the
Indenture Trustee, each Series Enhancer and the Requisite Global Majority
are express third party beneficiaries of this 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 upon any
other person any right, benefit or remedy of any nature whatsoever under or by
reason of this Agreement.


 


SECTION 8.14                                            Consent to Jurisdiction.  Any legal suit, action or proceeding against
the Seller or the Issuer arising out of or relating to this Agreement, or any
transaction contemplated hereby or thereby, may be instituted in any federal or
state court in the County of New York, State of New York and each of the Seller
and the Issuer 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, the Seller and the Issuer each hereby
irrevocably submits to the jurisdiction of any such court in any such suit,
action or proceeding.


 


24

















 


SECTION 8.15                                            WAIVER OF JURY
TRIAL.  EACH OF THE PARTIES HERETO
HEREBY IRREVOCABLY WAIVES, AS AGAINST THE OTHER PARTY HERETO, ANY RIGHTS IT MAY HAVE
TO A JURY TRIAL IN RESPECT OF ANY CIVIL ACTION OR PROCEEDING (WHETHER ARISING
IN CONTRACT OR TORT OR OTHERWISE), INCLUDING ANY COUNTERCLAIM, ARISING UNDER OR
RELATING TO THIS AGREEMENT OR ANY OTHER TRANSACTION DOCUMENT, INCLUDING IN
RESPECT OF THE NEGOTIATION, ADMINISTRATION OR ENFORCEMENT HEREOF OR THEREOF.


 


SECTION 8.16                                            No Claim.  Indemnity payments payable by the Issuer to
the Seller, the Indenture Trustee and Manager hereunder shall be non-recourse
to the Issuer and shall not constitute a claim (as defined in Section 101(5) of
the Bankruptcy Code) against the Issuer or the Collateral in the event such
amounts are not paid in accordance with Section 302 or 806 of the
Indenture.  Each of the Seller, Indenture
Trustee and Manager hereby subordinates its claims hereunder to all claims
which have priority in payment under Section 302 or 806 of the Indenture,
and further agrees that any such claims shall only be payable at the times and
in the amounts for which funds are available for such purpose pursuant to Section 302
or 806 of the Indenture.


 


[REMAINDER OF PAGE INTENTIONALLY
LEFT BLANK]


 


25

















 


IN WITNESS WHEREOF, the Seller and the Issuer have caused
this Agreement to be duly executed as of the day and year first above written.


 


	
   

  	
  TAL
  INTERNATIONAL CONTAINER CORPORATION

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Contribution and Sale Agreement


 

















 


	
   

  	
  TAL
  ADVANTAGE III LLC,

  
	
   

  	
   

  	
  By: TAL
  International Container Corporation, its Manager

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  



 


Contribution
and Sale Agreement