EX-10.39






SECOND AMENDED AND RESTATED LOAN AGREEMENT




THIS SECOND AMENDED AND RESTATED LOAN AGREEMENT (as amended, modified, supplemented, renewed
or restated from time to time, the “Agreement") is made as of April 30, 2009, by and between THE
ANDERSONS, INC., an Ohio corporation (“Borrower"), the financial institutions listed on the
signature pages hereof and each other financial institution that may hereafter become a party
hereto in accordance with the provisions hereof (collectively the “Lenders” and individually a
“Lender") and U.S. BANK NATIONAL ASSOCIATION, a national banking association (“U.S. Bank"), in its
capacity as Agent for the Lenders and for the Issuer (in such capacity, the “Agent").



RECITAL




Borrower, U.S. Bank and the Lenders, are parties to the Amended and Restated Loan Agreement
dated February 21, 2008, as amended by the First through Fifth Amendments thereto (the “Prior
Agreement") whereby U.S. Bank (as the Agent and a Lender), and the other Lenders, agreed to make
loans, advances, extensions of credit and/or other financial accommodations to or for the benefit
of Borrower. Borrower has requested that the Prior Agreement be amended and restated to provide
for the continuation of the existing loans, additional loans, advances, extensions of credit and/or
other financial accommodations, and the Lenders are willing to do so on the following terms and
conditions.



NOW, THEREFORE, in consideration of the foregoing and of the terms and conditions contained in
this Agreement, and of any loans or extensions of credit or other financial accommodations at any
time made to or for the benefit of Borrower by the Agent and the Lenders, Borrower, the Agent and
the Lenders agree that the Prior Agreement shall be amended and restated to read as follows:



1 DEFINITIONS.



1.1 General Definitions. When used herein, the following capitalized terms shall have
the meanings indicated, whether used in the singular or the plural:



"Accounts” shall mean all present and future rights of Borrower and its consolidated
subsidiaries to payment for Inventory or other Goods sold or leased or for services rendered, which
rights are not evidenced by Instruments or Chattel Paper, regardless of whether such rights have
been earned by performance and any other “accounts” (as defined in the Code).



"Account Debtor” shall mean any Person that is obligated on or under an Account.



"Adjusted Monthly LIBOR Rate” shall mean with respect to each day, the rate determined
by dividing the Monthly LIBOR Rate in effect on such day by 1.00 minus the LIBOR Reserve
Percentage.



"Affiliate” shall mean any Person other than Borrower and its consolidated
subsidiaries: (a) that directly or indirectly, through one or more intermediaries, controls or is
controlled by, or is under common control with, Borrower or its consolidated subsidiaries; (b) that
directly or beneficially owns or holds twenty five percent (25%) or more of any class of the voting
equity interest of Borrower or its consolidated subsidiaries; (c) twenty five percent (25%) or more
of the voting equity interest of which is owned directly or beneficially or held by Borrower or its
consolidated subsidiaries; or (d) that is a director, officer, agent or employee of Borrower or its
consolidated subsidiaries.



"Agent” has the meaning set forth in the introduction and shall include any successor
to the Agent that has been appointed in accordance with Section 9.11.



"Agent’s Letter” shall mean, the letter agreement between Borrower and the Agent dated
April 30, 2009.



"Applicable Margin” shall mean, with respect to Swing Line Advances, Line of Credit A
Advances or Line of Credit B Advances which are Daily Reset LIBOR Rate Loans, Base Rate Loans or
LIBOR Rate Loans, Commitment Fees for the Line of Credit A Loan Commitments or Line of Credit B
Loan Commitments (“Non-Use Fees”), Standby LC Fees and Commercial LC Fees, the rates per annum as
set forth in the tables and paragraph below, for the then applicable Financial Performance Level:




Swing Line Advances, Line of Credit A Advances, Line of Credit B Advances, Non-Use Fees Line
A and B:



	 	 	 	 	 	 	 	 	 	 	 	 	 
	Financial	 	Base Rate	 	Daily Reset LIBOR Rate &	 	Non-Use Fees
	 	 	 	 	 	 	LIBOR Rate	 	 
	Performance Level	 	 	 	 	 	 	 	 	 	Line A and Line B
	Level 1	 	2.125%	 	3.125%	 	0.500%
	Level 2	 	1.750%	 	2.750%	 	0.425%
	Level 3	 	1.500%	 	2.500%	 	0.375%
	Level 4

	 	 	1.250	%	 	 	2.250	%	 	 	0.275	%






Letter of Credit Fees:



	 	 	 	 	 	 	 	 	 
	Financial	 	Standby LC Fees	 	Commercial LC Fees
	Performance Level	 	 	 	 
	Level 1	 	3.125%	 	3.125%
	Level 2	 	2.750%	 	2.750%
	Level 3	 	2.500%	 	2.500%
	Level 4

	 	 	2.250	%	 	 	2.250	%






The initial Financial Performance Level shall be Level 3. The Agent will review Borrower’s
financial performance as of each fiscal quarter end, beginning with fiscal quarter end March 31,
2009, after its receipt of Borrower’s financial statements and Compliance Certificate as of the end
of such fiscal quarter, and will confirm Borrower’s determination as to whether Borrower’s
Financial Performance Level based on such fiscal quarter end is Level 1, Level 2, Level 3 or Level
4. As so confirmed by the Agent, Borrower’s Financial Performance Level will determine the
Applicable Margin effective for Swing Line Advances, Line of Credit A Advances, Line of Credit B
Advances, the Commitment Fees for the Line of Credit A Loan Commitments and Line of Credit B Loan
Commitments, Standby LC Fees and Commercial LC Fees for the three month period beginning on the
first Business Day of the third month following the end of such fiscal quarter if the Agent
receives such quarter end financial statements prior to the last five (5) Business Days of the
second month following the end of such fiscal quarter. If the Agent receives such quarter end
financial statements during or after the last five (5) Business Days of the second month following
the end of such fiscal quarter (but prior to the end of the third month following the end of such
fiscal quarter), any reduction in the Applicable Margin will be delayed until the tenth day of the
month following the month in which the Agent receives such quarter end financial statements, but
any increase in the Applicable Margin will be effective as of the first Business Day of the third
month following the end of such fiscal quarter. If the Agent does not receive such quarter end
statements prior to the end of the third month following the end of such fiscal quarter, Borrower’s
Financial Performance Level shall be deemed to be Level 1 beginning with the tenth day of the
fourth month following the end of such fiscal quarter and shall remain at Level 1 until the
15th Business Day after such financial statements are received by the Agent and a
determination by the Agent that a different Financial Level shall apply during the remainder of the
three month period.



"Asset Coverage Ratio” shall mean, for any date of determination, the ratio of (a) the
sum of (i) the aggregate principal amount of the Line of Credit A Loan Liabilities, (ii) the
aggregate amount of the LC Obligations, (iii) the aggregate principal amount of the Line of Credit
B Loan Liabilities, and (iv) the aggregate principal amount of all other Indebtedness of Borrower,
on a consolidated basis, other than permitted Priority Debt, Subordinated Debt and the indebtedness
evidenced by the Debenture Bonds; divided by (b) the sum of the amounts of Borrower’s (i) accounts
receivable, (ii) deposits and investments permitted under Section 8.8(a), (b) or (c) (net
of any checks or other debits outstanding), (iii) net margin accounts and (iv) inventory, modified,
in the case of inventory, to include all current and non-current commodity derivative assets and
liabilities recorded on the Borrower’s balance sheet in accordance with GAAP, in each case, as they
would normally appear on Borrower’s balance sheet according to GAAP. For purposes of
clarification, the amounts used in the calculation of Asset Coverage Ratio shall exclude (i)
Limited Recourse Debt; and (ii) all Rail Assets financed by Securitization Transactions and Limited
Recourse Debt. “Limited Recourse Debt” means any Indebtedness borrowed, raised or incurred with
respect to the financing of Rail Assets, in respect of which recourse of the limited recourse
financiers is limited to such Rail Assets. “Rail Assets” means locomotives, railcars, maintenance
of way equipment and any leases or lease receivables or accounts or notes receivables related to
such property. “Securitization Transaction” means a transfer of Rail Assets on a limited recourse
basis, provided, that such sale or other disposition qualifies as a sale under GAAP.



"Available Amount A” shall mean, at any time, an amount equal to (i) the Line of
Credit A Loan Commitments minus (ii) the sum of (A) the aggregate principal amount of the
Line of Credit A Loan Liabilities, and (B) the aggregate amount of the LC Obligations.



"Available Amount B” shall mean, at any time, an amount equal to (i) the Line of
Credit B Loan Commitments minus (ii) the aggregate principal amount of the Line of Credit B
Loan Liabilities.



"Bank Products” means any of the following services or facilities extended to Borrower
by the Agent, any Lender or any of their affiliates: (a) credit cards; (b) cash management,
including controlled disbursement services, automatic clearing house transfer of funds and
overdrafts; and (c) facilities and services extended under Rate Protection Agreements.



"Bank Products Agreements” means all documents and agreements relating to Bank
Products.



"Bank Products Obligations” means, with respect to any Person, all obligations and
liabilities of such Person under any Bank Products Agreements.



"Base Rate” shall mean the greater of (a) the Prime Rate, (b) the Federal Funds Rate
plus one half of one percent (0.5%), and (c) the Adjusted Monthly LIBOR Rate in effect and reset
each Business Day plus one and one quarter of one percent (1.25%).



"Base Rate Loan” shall mean any Loan that bears interest at the Base Rate plus the
Applicable Margin.



“Borrower and its consolidated subsidiaries” shall mean Borrower and its consolidated
subsidiaries except Rail Subsidiaries, except as that term is used in Section 6.13 of the
Agreement, Correctness of Financial Statements, Section 6.18 of the Agreement,
Solvency, Subsections (a) and (b) of Section 7.1 of the Agreement, Financial
and Other Information, and Section 7.8 of the Agreement, Books and Records, in
which cases “Borrower and its consolidated subsidiaries” shall mean Borrower and its consolidated
subsidiaries including Rail Subsidiaries.



“Borrower or any consolidated subsidiary of Borrower” shall mean Borrower or any
consolidated subsidiary of Borrower except a Rail Subsidiary.



"Business Day” shall mean any day of the year on which commercial banks in New York,
New York are not required or authorized to close, provided, in addition however, that when used in
the definition of LIBOR Rate or Interest Period, or when otherwise used in connection with a rate
determination, borrowing or payment in respect of a LIBOR Rate Loan, the term “Business Day” shall
exclude any day on which banks in London, England are not open for dealings in deposits of Dollars
in the London interbank market.



"Capitalization” shall mean, as of any particular date, (a) Borrower’s Tangible Net
Worth, (b) plus Total Adjusted Funded Debt.



"Change of Control” shall mean, (a) as to Borrower, (i) the voting stock of Borrower
shall cease to be publicly traded, or (ii) more than 50% of the voting stock of Borrower is owned
or controlled, directly or indirectly by one Person or an affiliated group of Persons, and (b) as
to any consolidated subsidiary of Borrower, existing as such on the date of this Agreement, the
voting stock or voting or controlling equity interest of such consolidated subsidiary shall cease
to be wholly owned by Borrower, except as the result of a merger or asset consolidation with
another consolidated subsidiary of Borrower except Rail Subsidiaries.



"Closing Date” shall mean the date of this Agreement.



"Collateral” shall mean any and all real or personal property in which the Agent or
the Lenders may at any time have a lien or security interest to secure the Liabilities.



"Commercial Letter of Credit” shall mean any commercial letter of credit Issued for
the account of Borrower under this Agreement or the Prior Agreement.



"Commitment” shall mean, as to any Lender, such Lender’s Line of Credit A Loan
Commitment and Line of Credit B Loan Commitment, the Agent’s commitment to make Swing Line Advances
under the Line of Credit A and the Agent’s commitment to cause the issuance of Letters under the
Line of Credit A, and "Commitments” shall mean collectively, such Commitments for all the
Lenders and the Agent.



"Current Ratio Net of Hedged Inventory” shall mean, for any date of determination, the
ratio of Borrower’s: (a) (i) consolidated current assets, (ii) minus the book value of Hedged
Inventory, (iii) minus the net liquidation value of related Margin Accounts; divided by (b) (i)
consolidated current liabilities, (ii) minus the book value of Hedged Inventory, (iii) minus the
net liquidation value of related Margin Accounts.



"Daily Reset LIBOR Rate” shall mean the greater of: (a) one percent (1.00%); or (b)
the one-month LIBOR rate quoted by the Agent from Telerate Page 3750 or any successor thereto,
which shall be that one-month LIBOR rate in effect and reset each Business Day.



"Daily Reset LIBOR Rate Loan” shall mean any Loan that bears interest at the Daily
Reset LIBOR Rate plus the Applicable Margin.



"Debenture Bonds” means those certain Debentures described outstanding on the date
hereof which Debentures were issued pursuant to that certain Indenture dated as of October 1, 1985,
as supplemented from time to time.



"Debt to Capitalization Ratio” shall mean, as of any particular date, (a) Total
Adjusted Funded Debt, divided by (b) Capitalization.



"Default” shall mean the occurrence or existence of: (a) an event which, through the
passage of time or the service of notice or both, would (assuming no action is taken by Borrower or
any other Person to cure the same) mature into a Matured Default; or (b) an event which requires
neither the passage of time nor the service of notice to mature into a Matured Default.



"Default Period” shall mean the period of time commencing at the beginning of the
first Business Day after the delivery of a “Notice of Default” to the Agent in accordance with
Section 9.7 and continuing until the Default or Matured Default described therein is cured
or waived, as the case may be, in accordance with the terms of this Agreement.



"Direct Pay Letter of Credit” shall mean any direct pay letter of credit Issued for
the account of Borrower under this Agreement or the Prior Agreement.



"Dollars” and "$” shall mean lawful currency of the United States of America.



"EBITDA” shall mean, during any period of determination, the net income of Borrower
and its consolidated subsidiaries before provision for income taxes, interest expense (including
without limitation, implicit interest expense on capitalized leases), depreciation expense,
amortization expense and other non-cash expenses or charges, excluding (to the extent included):
(a) non-operating gains (including without limitation, extraordinary or nonrecurring gains, gains
from discontinuance of operations and gains arising from the sale of assets other than Inventory)
during the applicable period; and (b) similar non-operating losses during such period.



"Farm Products” shall mean all personal property owned by Borrower and its
consolidated subsidiaries used or for use in farming or livestock operations, including without
limitation, seed and harvested or un-harvested crops of all types and descriptions, whether annual
or perennial and including trees, vines and the crops growing thereon, native grass, grain, feed,
feed additives, feed ingredients, feed supplements, fertilizer, hay, silage, supplies (including
without limitation, chemicals, veterinary supplies and related Goods), livestock of all types and
descriptions (including without limitation, the offspring of such livestock and livestock in
gestation) and any other “farm products” (as defined in the Code).



"Federal Funds Rate” shall mean, for any day, the rate of interest per annum (rounded
upward, if necessary, to the nearest whole multiple of 1/100th of 1%) equal to the weighted average
of the rates on overnight federal funds transactions with members of the Federal Reserve System
arranged by federal funds brokers on such day, as published by the Federal Reserve Bank of New York
on such day, or if no such rate is so published on such day, on the most recent day preceding such
day on which such rate is so published.



"Financial Performance Level” shall mean the applicable level of Borrower’s financial
performance determined in accordance with the table set forth below, provided, however,
notwithstanding the definition thereof, Debt to Capitalization Ratio shall be determined as if the
Rail Subsidiaries were not consolidated subsidiaries of Borrower.



	 	 	 
	Financial Performance Level

	 	Debt to Capitalization Ratio
	 

	 	 
	Level 1

Level 2

Level 3

Level 4

	 	Greater than 50%

Less than or equal to 50% but greater than 35%

Less than or equal to 35% but greater than 20%

Less than or equal to 20%






"Financing Agreements” shall mean all agreements, instruments and documents, including
without limitation, this Agreement and all notes, letter of credit applications, guarantees,
consents, assignments, contracts, notices and all other written matter at any time executed by or
on behalf of Borrower and delivered to the Agent for the benefit of the Lenders in relation to this
Agreement, together with all amendments and all agreements and documents referred to therein or
contemplated thereby and all Bank Products Agreements.



"Funded Debt” shall mean, for any date of determination, the outstanding principal
amount of all interest bearing indebtedness of Borrower and its consolidated subsidiaries
(including without limitation, capitalized leases, interest bearing accounts payable and, without
duplication, the undrawn amount of all outstanding letters of credit (including without limitation,
the Letters)).



"GAAP” shall mean generally accepted accounting principles set forth in the opinions
and pronouncements of the Accounting Principles Board of the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial Accounting Standards Board, or in
such other statements by such other entity as may be in general use by significant segments of the
accounting profession, which are applicable to the circumstances as of the date of determination.



"Governmental Authority” shall mean any nation or government, any state or other
political subdivision thereof and any entity exercising executive, legislative, judicial,
regulatory or administrative functions of or pertaining to government, including without
limitation, any arbitration panel, any court, any commission, any agency or any instrumentality of
the foregoing.



"Governmental Requirement” shall mean any law, statute, code, ordinance, order, rule,
regulation, judgment, decree, injunction, franchise, permit, certificate, license, authorization or
other directive or requirement of any federal, state, county, municipal, parish, provincial or
other Governmental Authority or any department, commission, board, court, agency or any other
instrumentality of any of them (including any of the foregoing that relate to environmental
standards or controls and occupational safety and health standards or controls).



"Hedged Inventory” shall mean Inventory consisting of commodities that are hedged
against price fluctuation using traditionally recognized methods of hedging, including, but not
limited to, futures contracts, placed through a recognized commodities broker adjusted to include
all current and non-current commodity derivative assets and liabilities recorded on the Company’s
balance sheet in accordance with GAAP.



"Highest Lawful Rate” shall mean, with respect to each Lender, the maximum
non-usurious interest rate, if any, that at any time or from time to time may be contracted for,
taken, reserved, charged, or received with respect to the Swing Line, the Line of Credit A and the
Line of Credit B (and the respective Line of Credit A Notes and the Line of Credit B Notes), or on
other amounts, if any, payable to such Lender pursuant to this Agreement or any other Financing
Agreement, under laws applicable to such Lender which are presently in effect, or, to the extent
allowed by law, under such applicable laws which may hereafter be in effect and which allow a
higher maximum non-usurious interest rate than applicable laws now allow.



"Immediately Available Funds” shall mean: funds with good value on the day and in the
city in which payment is received.



"Indebtedness” with respect to any Person means, at any time, without duplication, (a)
(i) its liabilities for borrowed money and (ii) its redemption obligations in respect of preferred
stock which is or upon the occurrence of certain events may be mandatorily redeemable by the
holders thereof at any time prior to the payment in full of the Liabilities; (b) its liabilities
for the deferred purchase price of property acquired by such Person (excluding accounts payable
arising in the ordinary course of business but including all liabilities created or arising under
any conditional sale or other title retention agreement with respect to any such property); (c) (i)
all liabilities appearing on its balance sheet in accordance with GAAP in respect of capital leases
and (ii) all liabilities which would appear on its balance sheet in accordance with GAAP in respect
of synthetic leases assuming such synthetic leases were accounted for as capital leases; (d) all
liabilities for borrowed money secured by any lien or security interest with respect to any
property owned by such Person (whether or not it has assumed or otherwise become liable for such
liabilities); (e) all its liabilities in respect of letters of credit or instruments serving a
similar function issued or accepted for its account by banks and other financial institutions
(whether or not representing obligations for borrowed money); and (f) any guaranty of such Person
with respect to liabilities of a type described in any of clauses (a) through (e) hereof.
Indebtedness of any Person shall include all obligations of such Person of the character described
in clauses (a) through (f) to the extent such Person remains legally liable in respect thereof
notwithstanding that any such obligation is deemed to be extinguished under GAAP.



"Interest Coverage Ratio” shall mean, for any date of determination, the ratio of (a)
EBITDA during the four fiscal quarters then ended, divided by (b) Interest Expense during the four
fiscal quarters then ended.



"Interest Expense” shall mean, during any period of determination, the consolidated
interest or related expense on Funded Debt of Borrower and its consolidated subsidiaries.



"Interest Period” shall mean: (a) with respect to LIBOR Rate Loans, the period of time
for which the LIBOR Rate shall be in effect as to any LIBOR Rate Loan and which shall be a seven
day or one, two, three or six month period of time, commencing with the borrowing date of the LIBOR
Rate Loan or the expiration date of the immediately preceding Interest Period, as the case may be,
applicable to and ending on the effective date of any rate change or rate continuation made as
provided in Section 2.2 as Borrower may specify in the notice of borrowing delivered
pursuant to Section 2.2 or the notice of interest conversion delivered pursuant to
Section 2.2; provided however, that (b) any Interest Period which would
otherwise end on a day which is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar month, in which case such Interest
Period shall end on the next preceding Business Day, (c) no Interest Period shall extend beyond the
Maturity Date; and (d) there shall be no more than five (5) seven day Interest Periods and no more
than twenty (20) Interest Periods (of all types) for LIBOR Rate Loans at any one time.



"Inventory” shall mean any and all Goods which shall at any time constitute
“inventory” (as defined in the Code) or Farm Products owned by Borrower and its consolidated
subsidiaries, wherever located (including without limitation, Goods in transit and Goods in the
possession of third parties), or which from time to time are held for sale, lease or consumption in
Borrower’s business, furnished under any contract of service or held as raw materials, work in
process, finished inventory or supplies (including without limitation, packaging and/or shipping
materials).



"IRC” shall mean the Internal Revenue Code of 1986, as amended, as at any time in
effect, together with all regulations and rulings thereof or thereunder issued by the Internal
Revenue Service.



"Issue", "Issued", "Issues” and “Issuance” shall mean, as the
context requires, with respect to a Letter, the issuance, extension or other amendment of a Letter
pursuant to this Agreement.



"Issuer” shall mean, with respect to a Letter, any party that Issues such Letter
pursuant to this Agreement or that has Issued a Letter under the Prior Agreement.



"LC Obligations” shall mean, at any time, an amount equal to the aggregate undrawn and
unexpired amount of the outstanding Letters, together with the aggregate amount of any unpaid
reimbursement obligations with respect to any Letters.



"Letter” or "Letters” shall mean a Commercial Letter of Credit or Standby
Letter of Credit Issued for the account of Borrower pursuant to Section 2.1.4 or under the
Prior Agreement, or all of such letters of credit, respectively.



"Liabilities” shall mean any and all liabilities, obligations and indebtedness of
Borrower to the Agent, any Lender or Issuer of any and every kind and nature, at any time owing,
arising, due or payable and howsoever evidenced, created, incurred, acquired or owing, whether
primary, secondary, direct, contingent, fixed or otherwise (including without limitation LC
Obligations, Bank Products Obligations, fees, charges and obligations of performance) and whether
arising or existing under this Agreement or any of the other Financing Agreements or by operation
of law.



"LIBOR Rate” shall mean, with respect to each day during each Interest Period
applicable to a LIBOR Rate Advance, the greater of: (a) one percent (1.00%); or (b) the seven day
or one, two, three or six month LIBOR rate quoted by the Agent from Reuters Screen LIBOR01 Page or
any successor thereto, or if unavailable, such LIBOR rate quoted by the Agent from a reasonably
equivalent alternative source as determined by the Agent (which shall be the LIBOR rate in effect
two (2) Business Days prior to the LIBOR Rate Loan).



"LIBOR Rate Loan” shall mean any Loan that bears interest at the LIBOR Rate plus the
Applicable Margin.



"LIBOR Reserve Percentage” shall mean the maximum effective percentage in effect on
any day as prescribed by the Board of Governors of the Federal Reserve System (or any successor)
for determining the reserve requirements (including, without limitation, supplemental, marginal and
emergency reserve requirements) with respect to eurocurrency funding.



"Line of Credit A Loan Commitment” shall mean as to any Lender, such Lender’s Pro Rata
Percentage of $490,000,000, as set forth opposite such Lender’s name under the heading “Line of
Credit A Loan Commitments” on Schedule A, subject to Assignment and Acceptance in
accordance with Section 10.23, and as such amount may be reduced or terminated from time to
time pursuant to Sections 2.3(c), 2.8 or 9.1 and as such amount may be increased from time
to time pursuant to Section 10.31(b); and "Line of Credit A Loan Commitments” shall
mean collectively, the Line of Credit A Loan Commitments for all the Lenders.



"Line of Credit B Loan Commitment” shall mean as to any Lender, such Lender’s Pro Rata
Percentage of $85,000,000, as set forth opposite such Lender’s name under the heading “ Line of
Credit B Loan Commitments” on Schedule A, subject to Assignment and Acceptance in
accordance with Section 10.23, and as such amount may be reduced or terminated from time to
time pursuant to Sections 2.3(c), 2.8 or 9.1 and as such amount may be increased from time
to time pursuant to Section 10.31(b); and "Line of Credit B Loan Commitments” shall
mean collectively, the Line of Credit B Loan Commitments for all the Lenders.



"Line of Credit A Loan Liabilities” shall mean all of the Liabilities (including
without limitation the principal and interest owing under the Swing Line) other than: (a) the LC
Obligations; (b) the principal and interest owing under the Line of Credit B; and (c) and Bank
Products Obligations.



"Line of Credit B Loan Liabilities” shall mean the principal and interest owing under
the Line of Credit B.



"Margin Accounts” shall mean, collectively, all Commodity Accounts and all Commodity
Contracts and (to the extent not included in Commodity Accounts or Commodity Contracts) all Swap
Contracts and cash forward contracts maintained by Borrower and its consolidated subsidiaries with
respect to Hedged Inventory.



"Matured Default” shall mean the occurrence or existence of any one or more of the
following events: (a) Borrower fails to pay any principal pursuant to any of the Financing
Agreements (other than the Bank Products Agreements) on the day such principal becomes due or is
declared due or Borrower fails to pay any interest pursuant to any of the Financing Agreements on
or before five (5) days after such interest becomes due or is declared due; (b) Borrower fails to
pay any of the Liabilities (other than principal and interest) on or before ten (10) days after
such Liabilities become due or are declared due; (c) a Change of Control shall occur; (d) Borrower
or any consolidated subsidiary of Borrower fails or neglects to perform, keep or observe any of the
covenants, conditions, promises or agreements contained in this Agreement or in any of the other
Financing Agreements (other than those covenants, conditions, promises and agreements referred to
or covered in (a), (b), and (c) above), and such failure or neglect
continues for more than thirty (30) days after such failure or neglect first occurs; (e) the
Available Amount A or the Available Amount B, as calculated in accordance with the definitions
thereof, result in a negative amount; (f) any warranty or representation at any time made by or on
behalf of Borrower in connection with this Agreement or any of the other Financing Agreements is
untrue or incorrect in any material respect, or any schedule, certificate, statement, report,
financial data, notice, or writing furnished at any time by or on behalf of Borrower to the Agent
or any other Lender is untrue or incorrect in any material respect on the date as of which the
facts set forth therein are stated or certified; (g) a judgment in excess of $5,000,000 is rendered
against Borrower or any Guarantor of any of the Liabilities and such judgment remains unsatisfied
or un-discharged and in effect for sixty (60) consecutive days without a stay of enforcement or
execution, provided, however, that this clause (g) shall not apply to any judgment
for which Borrower is fully insured (through insurance policies and/or self insurance reserves);
(h) all or any material part of the assets of Borrower or any Guarantor of any of the Liabilities
come within the possession of any receiver, trustee, custodian or assignee for the benefit of
creditors; (i) a proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency,
readjustment of debt or receivership law or statute is filed against Borrower or any Guarantor of
any of the Liabilities and such proceeding is not dismissed within thirty (30) days of the date of
its filing, or a proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency,
readjustment of debt or receivership law or statute is filed by Borrower or any Guarantor of any of
the Liabilities, or Borrower or any Guarantor of any of the Liabilities makes an assignment for the
benefit of creditors; (j) Borrower or any Guarantor of any of the Liabilities voluntarily or
involuntarily dissolves or is dissolved, terminates or is terminated; (k) Borrower or any
consolidated subsidiary of Borrower is enjoined, restrained, or in any way prevented by the order
of any court or any administrative or regulatory agency or by the termination or expiration of any
permit or license, from conducting all or any material part of its business affairs; (l) Borrower
or any Guarantor of any of the Liabilities fails to make any payment due or otherwise defaults on
any other obligation for borrowed money and the effect of such failure or default is to cause or
permit the holder of such obligation or a trustee to cause such obligation to become due prior to
its date of maturity; (m) any Guarantor of any of the Liabilities asserts the invalidity of their
guaranty, purports to terminate their guaranty or purports to limit the application thereof to then
existing Liabilities; or (n) the Agent, at any time reasonably determines that the Lenders are
insecure with respect to the prompt payment of all or any part of the Liabilities, or that such
change has occurred in the condition or affairs (financial or otherwise) of Borrower or any
Guarantor as, in the reasonable opinion of the Agent, materially affects Borrower’s ability to make
prompt payment on the Liabilities.



"Maturity Date” shall mean, as applicable, the earlier of: (a) as to the Swing Line or
the Line of Credit A and LC Obligations, September 30, 2011; (b) as to the Line of Credit B,
September 30, 2011; and (c) in all cases, the earlier date of termination in whole of the
Commitments pursuant to Sections 2.3(c), 2.8 or 9.1.



“Monthly LIBOR Rate” shall mean, with respect to any date of determination, the
average offered rate for deposits in United States dollars for delivery of such deposits on a
one-month basis, which appears on Reuters Screen LIBOR01 Page (or any successor thereto) as of
11:00 A.M., London time (or such other time as of which such rate appears), or the rate for such
deposits determined by the Agent at such time based on such other published service of general
application as shall be selected by the Agent for such purpose.



"Note” or "Notes” shall mean any one of the Line of Credit A Notes or the Line
of Credit B Notes or all of the Line of Credit A Notes or the Line of Credit B Notes, respectively.



"Person” shall mean any individual, sole proprietorship, partnership, limited
liability company, joint venture, trust, unincorporated organization, association, corporation,
institution, entity, party or government (whether national, federal, state, provincial, county,
city, municipal or otherwise, including without limitation, any instrumentality, division, agency,
body or department thereof).



"Prime Rate” shall mean the prime rate announced by the Agent from time to time, which
is a base rate that the Agent from time to time establishes and which serves as the basis upon
which effective rates of interest are calculated for those loans which make reference thereto. The
Prime Rate is not necessarily the lowest rate offered by the Agent. With respect to Base Rate
Loans, each change in the rate of interest hereunder shall become effective on the date each Prime
Rate change is announced by the Agent or with each change in the Federal Funds Rate, as the case
may be.



"Producer Payables” shall mean all amounts at any time payable by Borrower and its
consolidated subsidiaries for the purchase of Inventory.



"Property” shall mean those premises owned or operated by Borrower and its
consolidated subsidiaries.



"Pro Rata Percentage” shall mean with respect to each Lender, as applicable, (a) with
respect to the Line of Credit A, the Swingline and the Letters, such Lender’s Pro Rata Percentage
of the Line of Credit A Loan Commitments as set forth in Schedule A (or any replacement thereof by
proper amendment thereto), (b) with respect to the Line of Credit B, such Lender’s Pro Rata
Percentage of the Line of Credit B Loan Commitments as set forth in Schedule A (or any replacement
thereof by proper amendment thereto), and (c) with respect to matters not specifically related to
the Line of Credit A, the Line of Credit B, the Swingline and the issuance of Letters the weighted
average (weighted based on the proportionate amounts of the total Line of Credit A Loan Commitments
and the total Line of Credit A Loan Commitments) of such Lender’s Pro Rata Percentage of the Line
of Credit A Loan Commitments as set forth in Schedule A (or any replacement thereof by proper
amendment thereto) and such Lender’s Pro Rata Percentage of the Line of Credit B Loan Commitments
as set forth in Schedule A (or any replacement thereof by proper amendment thereto), in each case,
as adjusted from time to time in accordance with Section 10.23, and in each case such
percentages shall be applicable even in the event that the commitments of the Lenders to make
Advances have been suspended or terminated in accordance with the terms of this Agreement.



"Rail Subsidiaries” shall mean, collectively, the direct and indirect wholly owned
subsidiaries of Borrower and its consolidated subsidiaries listed on Exhibit 1A, together with such
other direct and indirect wholly owned subsidiaries of Borrower and its consolidated subsidiaries
as may be added thereto from time to time with the prior written consent of the Agent (each a
“Rail Subsidiary”).



"Rate Protection Agreement” means, collectively, any Swap Contract designed to protect
against fluctuations in interest rates or currency exchange rates entered into by Borrower under
which the counterparty to such agreement is (or at the time such Rate Protection Agreement was
entered into, was) a Lender or an affiliate of a Lender.



"Required Lenders” shall mean, at any time Lenders holding in the aggregate at least
fifty one percent (51%) of the aggregate amount of all of the Lenders’ Commitments, which
percentage shall be applicable even in the event that the commitments of the Lenders to make
Advances have been suspended or terminated in accordance with the terms of this Agreement.



"Standby Letter of Credit” shall mean any standby letter of credit, which shall be
deemed to include any Direct Pay Letter of Credit Issued for the account of Borrower under this
Agreement or the Prior Agreement.



"Subordinated Debt” shall mean the consolidated, subordinated, unsecured debt of
Borrower that is subordinated to the Liabilities in accordance with a subordination agreement or
subordination agreements, in form and substance acceptable to the Required Lenders.



"Swap Contract” shall mean (a) any and all interest rate swap transactions, basis swap
transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity
swaps, commodity options, forward commodity contracts, equity or equity index swaps or options,
bond or bond price or bond index swaps or options or forward foreign exchange transactions, cap
transactions, floor transactions, currency options, spot contracts or any other similar
transactions or any of the foregoing (including, but without limitation, any options to enter into
any of the foregoing), and (b) any and all transactions of any kind, and the related confirmations,
which are subject to the terms and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement.



"Swing Line Limit” shall mean, $50,000,000, provided, however, upon
not less than seven days prior notice to the Agent and the Lenders, the Borrower may, for one
consecutive 90 day period commencing in each calendar year, increase the Swing Line Limit to an
amount not more than $80,000,000.



"Tangible Net Worth” shall mean, as of any particular date, (a) Borrower’s
consolidated net worth, (b) minus the consolidated book value of Borrower’s intangible assets, (c)
plus the consolidated book amount of Borrower’s deferred income.



"Total Adjusted Funded Debt” shall mean as of any particular date (a) Borrower’s
consolidated short term notes payable, plus (b) Borrower’s consolidated long term debt, plus (c)
the current maturities of Borrower’s consolidated long term debt, minus (d) to the extent included
in b. or c., non-recourse debt, plus (e) to the extent not included in a., b. or c., the
Liabilities, minus (f) 90% of the result of (i) the book value of Inventory consisting of grain,
minus (ii) 100% of the accounts payable related thereto, minus (g) 100% of the net equity in Margin
Accounts.



"Type” shall mean, with respect to any Loan, whether such Loan is a Base Rate Loan or
a LIBOR Rate Loan.



"Working Capital” shall mean as of any particular date, (a) Borrower’s consolidated
current assets, (b) minus Borrower’s consolidated current liabilities, which consolidated current
liabilities shall, in any event, include the Line of Credit A Loan Liabilities.



1.2 Index to Other Definitions. When used herein, the following capitalized terms
shall have the meanings given in the indicated portions of this Agreement:



	 	 	 
	Term	 	Location
	Advance, Advances

Agreement

Application

Assignee

Assignment and Acceptance

Beneficiary

Benefit Plans

Borrower

Code

Commercial LC Fee

Commitment Fees

Compliance Certificate

Default Rate

EBITDA

Environmental Laws

Equalization Transfer

ERISA

Excess

Guarantor

ISP98

Lenders

Line of Credit A

Line of Credit A Advances

Line of Credit A Notes

Line of Credit B

Line of Credit B Advances

Line of Credit B Notes

Loan Account

Loan, Loans

Material Subsidiary

Prior Agreement

Purchasing Lender

Replacement Candidate

Restricted Payments

Securities Act

Selling Lender

Standby LC Fee

Swing Line

Swing Line Advances

Taxes

UCP

	 	Section 2.1.5

introduction

Section 2.1.4

Section 10.23

Section 10.23

Section 2.1.4

Section 6.20

introduction

Section 1.4

Section 2.5(d)

Section 2.5(c)

Section 7.1

Section 2.2(c)

Section 5.2

Section 6.10

Section 2.1.5

Section 6.20

Section10.24

Section 5.2

Section 2.1.4

introduction

Section 2.1.2

Section 2.1.2

Section 2.1.2

Section 2.1.3

Section 2.1.3

Section 2.1.3

Section 2.6

Section 2.1.5

Section 5.2

Recital

Section 2.1.5

Section 10.32

Section 8.6

Section 10.33

Section 2.1.5

Section 2.5(d)

Section 2.1.1

Section 2.1.1

Section10.22

Section 2.1.4






1.3 Accounting Terms. Any accounting terms used in this Agreement which are not
specifically defined in this Agreement shall have the meanings customarily given them in accordance
with GAAP, as consistently applied as of the date of this Agreement.



1.4 Others Defined in Colorado Uniform Commercial Code. All other terms contained in
this Agreement (which are not specifically defined in this Agreement) shall have the meanings set
forth in the Uniform Commercial Code of Colorado (“Code”) to the extent the same are used or
defined therein, specifically including, but not limited to the following: Chattel Paper,
Commercial Tort Claims, Commodity Accounts, Commodity Contracts, Electronic Chattel Paper, Goods,
Instruments, Investment Property, Letter of Credit Rights, General Intangibles, Payment
Intangibles, Securities Accounts and Tangible Chattel Paper.



2 LOANS, LETTERS OF CREDIT AND FEES.



2.1 Loans and Letters of Credit. Subject to all of the terms and conditions contained
in this Agreement, the Agent and the Lenders severally and not jointly agree to make the following
extensions of credit to or for the benefit of Borrower:



2.1.1 Swing Line. The Agent agrees to make advances (“Swing Line Advances”) to
Borrower from time to time on any one or more Business Days from and after the date of this
Agreement, upon Borrower’s written (including facsimile) notice or oral notice followed by written
(including facsimile) confirmation, given by Borrower to the Agent not later than 1:00 p.m. (local
time in Denver) on the Business Day of any proposed Advance, through and including the Maturity
Date, in amounts up to the lesser of: (a) the Swing Line Limit minus the outstanding Swing Line
Advances; or (b) the Available Amount A (“Swing Line”). The Swing Line Advances shall be repayable
in accordance with the terms of this Agreement (as further evidenced by Borrower’s Line of Credit A
Note to the Agent). The Agent, upon the written approval of the Required Lenders, may elect to
make Swing Line Advances to Borrower in excess of the Swing Line Limit (but not in excess of the
Available Amount A), and any such Swing Line Advances shall also be governed by the terms hereof.



2.1.2 Line of Credit A. Each Lender severally agrees to make advances (“Line of
Credit A Advances”) to Borrower from time to time on any one or more Business Days from and after
the date of this Agreement (through the Agent as set forth in Section 2.1.5 or Section
2.2(f)), upon Borrower’s written (including facsimile) notice or oral notice followed by
written (including facsimile) confirmation, given by Borrower to the Agent not later than 10:00 am
(local time in Denver) on the second Business Day prior to the date of any proposed LIBOR Rate Loan
or upon Borrower’s written (including facsimile) notice or oral notice followed by written
(including facsimile) confirmation, given by Borrower to the Agent not later than 10:00 am (local
time in Denver) on the Business Day of the date of any proposed Base Rate Loan, up to an aggregate
principal amount not exceeding each such Lender’s Pro Rata Percentage of the Available Amount A on
such Business Day through the Maturity Date, in aggregate amounts up to the Available Amount A
(“Line of Credit A”). The Line of Credit A Advances shall be repayable in accordance with the
terms of this Agreement (as further evidenced by Borrower’s promissory notes to each of the Lenders
(“Line of Credit A Notes”), the form of which is attached as Exhibit 2A).



2.1.3 Line of Credit B. Each Lender severally agrees to make advances (“Line of
Credit B Advances”) to Borrower from time to time on any one or more Business Days from and after
the date of this Agreement (through the Agent as set forth in Section 2.1.5 or Section
2.2(f)), upon Borrower’s written (including facsimile) notice or oral notice followed by
written (including facsimile) confirmation, given by Borrower to the Agent not later than 10:00 am
(local time in Denver) on the second Business Day prior to the date of any proposed LIBOR Rate Loan
or upon Borrower’s written (including facsimile) notice or oral notice followed by written
(including facsimile) confirmation, given by Borrower to the Agent not later than 10:00 am (local
time in Denver) on the Business Day of the date of any proposed Base Rate Loan, up to an aggregate
principal amount not exceeding each such Lender’s Pro Rata Percentage of the Available Amount B on
such Business Day through the Maturity Date, in aggregate amounts up to the Available Amount B
(“Line of Credit B”). The Line of Credit B Advances shall be repayable in accordance with the
terms of this Agreement (as further evidenced by Borrower’s promissory notes to each of the Lenders
(“Line of Credit B Notes”), the form of which is attached as Exhibit 2B).



2.1.4 Letters of Credit.



(a) The Agent further agrees to Issue or cause to be Issued by a Lender that agrees, in each
case, to be the Issuer, Letters for Borrower’s account for any purpose acceptable to the Agent in
its reasonable discretion (the Agent or such Lender thereby becoming an Issuer), with an expiration
date not later than the earlier of (a) one year after the date of issuance, or (b) the fifth day
prior to the Maturity Date, in amounts up to the lesser of: (y) Ninety Million Dollars
($90,000,000) minus the then outstanding LC Obligations; or (z) the Available Amount A, for the
benefit of one or more beneficiaries to be named by Borrower (the “Beneficiary", whether one or
more), in form and substance acceptable to the Beneficiary. Letters which provide for an automatic
extension of the expiration date may not automatically extend for more than one year at each
extension and shall, in the sole discretion of the Agent, not be allowed to automatically extend to
a date later than the fifth day prior to the Maturity Date. In order to effect the issuance of
each Letter, Borrower shall deliver to the Agent a letter of credit application (the “Application")
not later than 11:00 a.m. (Denver time), five (5) Business Days prior to the proposed date of
issuance of the Letter. The Application shall be duly executed by a responsible officer of
Borrower, shall be irrevocable and shall (i) specify the day on which such Letter is to be Issued
(which shall be a Business Day), and (ii) be accompanied by a certificate executed by a responsible
officer setting forth calculations evidencing availability for the Letter and stating that all
conditions precedent to such issuance have been satisfied. Each Letter shall (i) provide for the
payment of drafts presented for honor thereunder by the Beneficiary in accordance with the terms
thereof, when such drafts are accompanied by the documents described in the Letter, if any, and
(ii) to the extent not inconsistent with the express terms hereof or the applicable Application, be
subject, as applicable, to the Uniform Customs and Practice for Documentary Credits (1993
Revision), International Chamber of Commerce Publication No. 500 or the International Standby
Practices (ISP 98—International Chamber Of Commerce Publication Number 590) (in each case,
together with any subsequent revisions thereof approved by a Congress of the International Chamber
of Commerce and adhered to by Issuer, the “UCP” and the “ISP98", respectively), and shall, as to
matters not governed by the UCP or the ISP98, be governed by, and construed and interpreted in
accordance with, the laws of the State in which Issuer resides. In the event the terms of any
Application or any related reimbursement agreement or other related agreement are inconsistent with
the terms of this Section 2.1.4, then the terms of this Section 2.1.4 shall be
controlling and shall govern over any the terms of any such Application or any related
reimbursement agreement or other related agreement.



(b) Upon the Issuance date of each Letter, the Issuer shall be deemed, without further action
by any party hereto, to have sold to each other Lender with a Line of Credit A Loan Commitment, and
each other Lender with a Line of Credit A Loan Commitment shall be deemed, without further action
by any party hereto, to have purchased from the Issuer, a participation, to the extent of such
Lender’s respective Pro Rata Percentage, in such Letter, the obligations thereunder and in the
reimbursement obligations of Borrower due in respect of drawings made under such Letter. If
requested by the relevant Issuer, the Agent, the other Lenders will execute any other documents
reasonably requested by such Issuer to evidence the purchase of such participation.



(c) If Issuer has received documents purporting to draw under a Letter that Issuer believes
conform to the requirements of the Letter, or if Issuer has decided that it will comply with
Borrower’s written or oral request of authorization to pay a drawing on any Letter that Issuer does
not believe conforms to the requirements of the Letter, Issuer or the Agent will notify Borrower of
that fact. An amount equal to the amount of such drawing shall be paid by Borrower to the Agent
for the account of the Issuer on the date such drawing is made. The obligation of Borrower to
repay the Agent for the account of the Issuer or the Agent and the Lenders for any Advance under
the Swing Line or the Line of Credit A made to fund such reimbursement, shall be absolute,
unconditional and irrevocable, shall continue for so long as any LC Obligation is outstanding
notwithstanding any termination of this Agreement, and shall be paid strictly in accordance with
the terms of this Agreement, notwithstanding any of the following:



(i) Any lack of validity or enforceability of any Letter or LC Obligation;




	 	(ii)	 	The existence of any claim, setoff, defense or other right which Borrower may
have or claim at any time against any Beneficiary, transferee or holder of any Letter
(or any Person for whom any such Beneficiary, transferee or holder may be acting),
Issuer or any other Person, whether in connection with a Letter, this Agreement, the
transactions contemplated hereby, or any unrelated transaction; or






	 	(iii)	 	Any statement or any other document presented under any Letter proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement therein
being untrue or inaccurate in any respect whatever so long as such statement or
document appeared to comply with the terms of the Letter.





(d) None of Issuer, the Lenders or any of the officers, directors employees, agents or
affiliates of any of them shall be liable or responsible for, and the obligations of Borrower to
Issuer and the Lenders shall not be impaired by:




	 	(i)	 	The use that may be made of any Letter or for any acts or omissions of any
Beneficiary, transferee or holder thereof in connection therewith;






	 	(ii)	 	The validity, sufficiency or genuineness of documents, or of any endorsements
thereon, even if such documents or endorsements should in fact prove to be in any or
all respects invalid, insufficient, fraudulent or forged so long as such statement or
document appeared to comply with the terms of the Letter;






	 	(iii)	 	The acceptance by Issuer of documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any notice or
information to the contrary; or






	 	(iv)	 	Any other action of Issuer in making or failing to make payment under any
Letter if in good faith and in conformity with applicable U.S. or foreign laws,
regulations or customs.





(e) Notwithstanding the foregoing, Borrower shall have a claim against Issuer and the Agent,
and Issuer and/or the Agent shall be liable to Borrower, to the extent, but only to the extent, of
any direct, as opposed to consequential, damages suffered by Borrower which Borrower proves were
caused by Issuer’s or the Agent’s willful misconduct or gross negligence in determining whether
documents presented under any Letter comply with the terms thereof.



(f) If any Letter is Issued and outstanding on the Maturity Date, Borrower shall deposit with
the Agent, for the ratable benefit of the Lenders and the Issuer: (i) cash collateral, or (ii) a
backup letter of credit issued to the Agent and acceptable to the Lenders, in either case, in an
amount equal to the LC Obligations relating to such Letter.



2.1.5 Equalization Transfers.



(a) The Swing Line Advances, the Line of Credit A Advances and the Line of Credit B Advances
(collectively “Advances” and individually, an “Advance") shall also sometimes collectively be
referred to in each case as a “Loan” and collectively the “Loans". It is anticipated that on each
Business Day Borrower may wish to borrow and repay Loans under the Line of Credit A. To the extent
possible, these Loans will be made by the Agent under the Swing Line. To minimize the number of
transfers of funds to and from the Lenders resulting from such borrowings and repayments, the Agent
may fund daily Loans under the Line of Credit A for the accounts of the Lenders and apply daily
repayments of Loans under the Line of Credit A to the accounts of the Lenders, other than according
to the Lenders’ Pro Rata Percentages (i.e., without receiving from the other Lenders their
Pro Rata Percentage of a Loan under the Line of Credit A on the date of disbursement thereof or
without paying the other Lenders their Pro Rata Percentage of a repayment of a Loan under the Line
of Credit A on the date of payment thereof), provided however, that no such Loan
shall be made and no repayment of such a Loan shall be applied other than according to the Lenders’
Pro Rata Percentages, if: (i) at the time of such Loan or repayment the Agent has actual knowledge
of a Matured Default, or (ii) after giving effect to such requested Loan or after applying the
repayment, the absolute value of the amount that would have to be reallocated to make the Loans
under the Line of Credit A held according to the Lenders’ Pro Rata Percentages, would exceed the
Swing Line Limit; or (iii) after giving effect to such requested Loan, the Agent would hold at the
end of any Business Day, Loans under the Swing Line and the Line of Credit A exceeding its Line of
Credit A Loan Commitment plus the Swing Line Limit.



(b) On any Business Day in the discretion of the Agent, if the outstanding Loans are not held,
or will not be held by reason of a request for an Advance, according to the Lenders’ Pro Rata
Percentages under the Line of Credit B, or, On any Business Day in the discretion of the Agent, if
the outstanding Loans are not held, or will not be held by reason of a request for an Advance,
according to the Lenders’ Pro Rata Percentages under the Line of Credit A, by reason of Swing Line
Advance (or a request therefore) or otherwise, the Agent shall give notice to the Lenders not later
than 4:00 p.m. (local time in Denver) of the amount of funds to be transferred from the Agent to
the Lenders, or from the Lenders to the Agent, or from one Lender to another, as the case may be
(each such transfer, an “Equalization Transfer") required (giving effect to anticipated Swing Line
Advances and to anticipated payments to be applied under the Swing Line) to cause the respective
Loans (under the Line of Credit B or under the Line of Credit A, as the case may be) to be held by
the Lenders according to their respective Pro Rata Percentages. On the next Business Day following
such notice the necessary Equalization Transfers shall be made in Immediately Available Funds not
later than 11:00 a.m. (local time in Denver); provided, however, Equalization Transfers necessary
to avoid the event described in Section 2.1.5(a)(iii) shall be made on the same Business
Day.



(c) Except as provided in Section 2.1.5(d), any Equalization Transfer by the Lenders
to the Agent shall be deemed to constitute Loans (under the Line of Credit B or under the Line of
Credit A, as the case may be) by such Lenders to Borrower and repayments by Borrower of Loans
(under the Line of Credit B or under the Line of Credit A, as the case may be) held by the Agent,
and any Equalization Transfer by the Agent to the Lenders shall be deemed to constitute Loans
(under the Line of Credit B or under the Line of Credit A, as the case may be) by the Agent to
Borrower and repayments of Loans (under the Line of Credit B or under the Line of Credit A, as the
case may be) held by the Lenders.



(d) In the event that on the date on which any Equalization Transfer is required to be made
pursuant to Section 2.1.5(b), a Matured Default of the type described in clause (i)
of the definition thereof shall have occurred and be continuing, any Equalization Transfer by the
Lenders to the Agent, and any Equalization Transfer by the Agent to the Lenders shall be deemed to
constitute a purchase by the Lenders or the Agent, as the case may be, of a direct interest, in the
amount of such Equalization Transfer, in outstanding Loans (under the Line of Credit B or under the
Line of Credit A, as the case may be) of the Lenders to Borrower, to the end that each of the
Lenders shall have an interest therein equal to their respective Pro Rata Percentages as of the
date of occurrence of such Matured Default.



(e) At any time after any Lender (a “Selling Lender") has received any Equalization Transfer
that constitutes a purchase by any other Lender (a “Purchasing Lender") of a direct interest in
such Selling Lender’s Loans (under the Line of Credit B or under the Line of Credit A, as the case
may be) pursuant to Section 2.1.5(d), if such Selling Lender receives any payment on
account of its Loans (under the Line of Credit B or under the Line of Credit A, as the case may be)
such Selling Lender will distribute to such Purchasing Lender its proportionate share of such
payment (appropriately adjusted in the case of interest payments, to reflect the period of time
during which such Purchasing Lender’s direct interest was outstanding and funded); provided
however, that in the event that such payment received by such Selling Lender is required to
be returned, such Purchasing Lender will return to such Selling Lender any portion thereof
previously distributed to it by such Selling Lender.



(f) Provided that no Lender (other than the Agent, when making Swing Line Advances) shall be
required to make Loans or Equalization Transfers that would cause its outstanding Loans to exceed
its Commitments, each Lender’s obligation to make Equalization Transfers pursuant to
Section 2.1.5(b) shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation, (i) any set-off, counterclaim, recoupment, defense or
other right which such Lender or any other Person may have against the Agent or any other Person
for any reason whatsoever; (ii) the occurrence or continuance of a Default or a Matured Default or
the termination of the Commitments; (iii) any adverse change in the condition (financial or
otherwise) of Borrower or any other Person; (iv) any breach of this Agreement by Borrower or any
other Lender, including without limitation, any other Lender’s failure to make any Equalization
Transfer; or (v) any other circumstance, happening or event whatsoever, whether or not similar to
any of the foregoing.



(g) Payments of principal, interest, non-use fees and letter of credit fees by Borrower and
Equalization Transfers between the Lenders, respectively, shall be made on the Closing Date: (i) to
cause the payment of interest, non-use fees and letter of credit fees due to the Lenders to the
Closing Date under the Prior Agreement; and (ii) to cause the Loans (under the Line of Credit B or
under the Line of Credit A, as the case may be) to be held by the Lenders under this Agreement
according to their respective Pro Rata Percentage (adjusted in the reasonable discretion of the
Agent for anticipated Loans (under the Line of Credit B or under the Line of Credit A, as the case
may be) or repayments of Loans (under the Line of Credit B or under the Line of Credit A, as the
case may be)), said Equalization Transfers to be deemed to be, as to the Loans (under the Line of
Credit B or under the Line of Credit A, as the case may be) made and outstanding under the Prior
Agreement, a sale and assignment by the Lenders to the Lenders, respectively, and a purchase and
assumption by the Lenders from the Lenders, respectively, according to their respective Pro Rata
Percentages. Borrower acknowledges that this will result, in some cases, in Lenders holding lower
Pro Rata Percentage in LIBOR Rate Loans than they held under the Prior Agreement, and, to the
extent applicable, Borrower acknowledges its reimbursement obligations under Section 2.3(b)
of the Prior Agreement with respect to this reallocation of LIBOR Rate Loans.



2.2 Payment of Principal and Interest; Default Rate. The principal amount outstanding
under the Swing Line, the Line of Credit A and the Line of Credit B shall be due and payable on the
Maturity Date. Loans under the Swing Line shall be Daily Reset LIBOR Rate Loans. Loans under the
Line of Credit A and Line of Credit B may, at the option of Borrower, be Base Rate Loans or LIBOR
Rate Loans. Each request for LIBOR Rate Loans shall be in a minimum amount of $1,000,000 and an
integral multiple of $1,000,000 and shall be subject to the restrictions set forth in the
definition of Interest Period and the other restrictions set forth in this Section 2.2.
Borrower shall pay interest on the unpaid principal amount of each Loan made by each Lender from
the date of such Loan until such principal amount shall be paid in full, at the times and at the
rates per annum set forth below:



(a) So long as no Matured Default has occurred and is continuing, during such periods as such
Loan is a Daily Reset LIBOR Rate Loan, a rate per annum equal to the lesser of (i) the sum of the
Daily Reset LIBOR Rate in effect from time to time plus the Applicable Margin and (ii) the Highest
Lawful Rate, payable monthly in arrears on the first day of each month commencing [May 1, 2009],
and on the Maturity Date, which interest shall be paid by an Agent initiated Advance pursuant to
Section 2.1, without prior demand by the Agent.



(b) So long as no Matured Default has occurred and is continuing, during such periods as such
Loan is a Base Rate Loan, a rate per annum equal to the lesser of (i) the sum of the Base Rate in
effect from time to time plus the Applicable Margin and (ii) the Highest Lawful Rate, payable
monthly in arrears on the first day of each month commencing [May 1, 2009], and on the Maturity
Date, which interest shall be paid by an Agent initiated Advance pursuant to Section 2.1,
without prior demand by the Agent.



(c) So long as no Matured Default has occurred and is continuing, during such periods as such
Loan is a LIBOR Rate Loan, a rate per annum during each day of each Interest Period for such Loan
equal to the lesser of (i) the sum of the LIBOR Rate for such Interest Period for such Loan plus
the Applicable Margin and (ii) the Highest Lawful Rate, payable in arrears on the last day of the
Interest Period in respect of such LIBOR Rate Loan, and, if the Interest Period with respect to
such LIBOR Rate Loan exceeds three months, the day which is three months after the making of such
LIBOR Rate Loan, which interest shall be paid by an Agent initiated Advance pursuant to Section
2.1, without prior demand by the Agent.



(d) After the occurrence of a Matured Default and for so long as such Matured Default is
continuing, the Agent shall (upon the direction of the Required Lenders) notify Borrower that any
and all amounts due hereunder or under any other Financing Agreement, whether for principal,
interest (to the extent permitted by applicable law), fees, expenses or otherwise, shall bear
interest, from the date of such notice by the Agent and for so long as such Matured Default
continues, payable on demand, at a rate per annum (the “Default Rate") equal to the lesser of
(i)(A) with respect to a Daily Reset LIBOR Rate Loan, the sum of two percent (2.0%) per annum
plus the Daily Reset LIBOR Rate in effect from time to time plus the Applicable
Margin; (B) with respect to a Base Rate Loan, the sum of two percent (2.0%) per annum plus
the Base Rate in effect from time to time plus the Applicable Margin; or (C) with respect
to a LIBOR Rate Loan, the sum of two percent (2.0%) per annum plus the LIBOR Rate then in
effect for such LIBOR Rate Loan plus the Applicable Margin; or (ii) the Highest Lawful
Rate.



(e) All computations of interest pursuant to this Section 2.2 shall be made by the
Agent with respect to all Loans on the basis of a year of 360 days, unless the foregoing would
result in a rate exceeding the Highest Lawful Rate, in which case such computations shall be based
on a year of 365 or 366 days, as the case may be. Interest with respect to all Loans, whether
based on a year of 360, 365 or 366 days, shall be charged for the actual number of days (including
the first day but excluding the last day) occurring in the period for which such interest is
payable. Each determination by the Agent of an interest rate shall be conclusive and binding for
all purposes, absent manifest error.



(f) Borrower may on any Business Day, upon Borrower’s written (including facsimile) notice or
oral notice followed by written (including facsimile) confirmation, given by Borrower to the Agent
not later than 10:00 am (local time in Denver) on the second Business Day prior to the date of any
proposed interest conversion or rollover, (a) convert Loans of one Type into Loans of another Type,
or (b) continue or rollover existing LIBOR Rate Loans; provided however, (i) with
respect to any conversion into or rollover of a LIBOR Rate Loan, no Default or Matured Default
shall have occurred and be continuing, and (ii) any continuation or rollover of LIBOR Rate Loans
for the same or a different Interest Period or into Base Rate Loans, shall be made on, and only on,
the last day of an Interest Period for such LIBOR Rate Loans. Each such notice of interest
conversion shall specify therein the requested (x) date of such conversion, (y) the Loans to be
converted and whether such Loans constitute LIBOR Rate Loans, and (z) if such interest conversion
is into Loans constituting LIBOR Rate Loans, the duration of the Interest Period for each such
Loan. The Agent shall promptly deliver a copy thereof to each Lender. Each such notice shall be
irrevocable and binding on Borrower. If Borrower shall fail to give a notice of interest
conversion with respect to any LIBOR Rate Loan as set forth above, such Loan shall automatically
convert to a Base Rate Loan on the last day of the Interest Period with respect thereto. The
provisions of this Section 2.2(f) shall also apply to initial Advances made as LIBOR Rate
Loans.



2.3 Prepayments; Termination of the Commitments.



(a) Borrower may at any time prepay the outstanding principal amount of any Loan, in either
case in whole or in part, in accordance with this Section 2.3. With respect to any
prepayment, Borrower shall give prior written notice of any such prepayment to the Agent, which
notice shall state the proposed date of such prepayment (which shall be a Business Day), the Loans
to be prepaid and the aggregate amount of the prepayment, and which notice shall be delivered to
the Agent not later than 12:00 noon (local time in Denver): (a) with respect to any Loan which is a
Base Rate Loan, on the date of the proposed prepayment, and (b) with respect to any Loan which is a
LIBOR Rate Loan, two (2) Business Days prior to the date of the proposed prepayment. All
prepayments of Base Rate Loans shall be without premium. All prepayments of LIBOR Rate Loans shall
be made together with accrued and unpaid interest (if any) to the date of such prepayment on the
principal amount prepaid without premium thereon, provided however, that losses,
costs or expenses incurred by any Lender as described in Section 2.3(b) shall be payable
with respect to each such prepayment. All notices of prepayment shall be irrevocable and the
payment amount specified in each such notice shall be due and payable on the prepayment date
described in such notice, together with, in the case of LIBOR Rate Loans, accrued and unpaid
interest (if any) on the principal amount prepaid and any amounts due under Section 2.3(b).
Borrower shall have no optional right to prepay the principal amount of any LIBOR Rate Loan other
than as provided in this Section 2.3.



(b) Borrower will indemnify each Lender against, and reimburse each Lender on demand for, any
loss, cost or expense incurred or sustained by such Lender (including without limitation, any loss
or expense incurred by reason of the liquidation or redeployment of deposits or other funds
acquired by such Lender to fund or maintain any LIBOR Rate Loan and/or loss of net yield) as a
result of (a) any payment, conversion, rollover, or prepayment of all or a portion of any LIBOR
Rate Loan on a day other than the last day of an Interest Period for such LIBOR Rate Loan, (b) any
payment, conversion, rollover or prepayment (whether required hereunder or otherwise) of such
Lender’s Loan made after the delivery of a notice of borrowing delivered pursuant to Section
2.2 (whether oral or written) but before the proposed date for such LIBOR Rate Loan if such
payment or prepayment prevents the proposed borrowing from becoming fully effective, (c) after
receipt by the Agent of a notice of borrowing delivered pursuant to Section 2.2, the
failure of any Loan to be made or effected by such Lender due to any condition precedent to a
borrowing not being satisfied or due to any other action or inaction of Borrower or (d) any
rescission of a notice of borrowing delivered pursuant to Section 2.2 or a notice of
interest conversion delivered pursuant to Section 2.2. Any Lender demanding payment under
this Section 2.3 shall deliver to Borrower and the Agent a statement reasonably setting
forth the amount and manner of determining such loss, cost or expense, which statement shall be
conclusive and binding for all purposes, absent manifest error. Compensation owing to a Lender as
a result of any such loss, cost or expense resulting from a payment, prepayment, conversion or
rollover of a LIBOR Rate Loan shall include without limitation, an amount equal to the sum of (i)
the amount of the net yield that, but for such event, such Lender would have earned for the
remainder of the applicable Interest Period plus (ii) any expense incurred by such Lender.
Notwithstanding any provision herein to the contrary, each Lender shall be entitled to fund and
maintain its funding of all of any part of the LIBOR Rate Loans in any manner it elects; it being
understood, however, that all determinations hereunder shall be made as if the Lender had actually
funded and maintained each LIBOR Rate Loan during the Interest Period for such Loan through the
purchase of deposits having a term corresponding to such Interest Period and bearing an interest
rate equal to the LIBOR Rate for such Interest Period (whether or not the Lender shall have granted
any participations in such Loans).



(c) Borrower shall have the right, upon at least five Business Days’ written notice to the
Lenders, to terminate the Line of Credit A Loan Commitments, (i) in whole (subject to the last
sentence of this Section 2.3(c)) or (ii) in part, in a minimum amount of $5,000,000 and an
integral multiple of $1,000,000, but not to an amount less than $160,000,000. Provided, however,
that any such termination shall be accompanied, (i) in the case of a termination in whole, by
payment of the Line of Credit A Loan Liabilities in full and the return or cash coverage of any
Letter then outstanding, or (ii) in the case of a partial termination, payment of the Line of
Credit A Loan Liabilities to the extent necessary to cause the Available Amount A to be not less
than zero. Any partial reduction of the Line of Credit A Loan Commitments pursuant to this
Section 2.3(c) shall result in a reduction pro-rata of the Line of Credit A Loan
Commitments of each of the Lenders. Borrower shall have the right, upon at least five Business
Days’ written notice to the Lenders, to terminate the Line of Credit B Loan Commitments, (i) in
whole, or (ii) in part, in a minimum amount of $5,000,000 and an integral multiple of $1,000,000,
but not to an amount less than $40,000,000. Provided, however, that any such termination shall be
accompanied, (i) in the case of a termination in whole, by payment of the Line of Credit B Loan
Liabilities in full, or (ii) in the case of a partial termination, payment of the Line of Credit B
Loan Liabilities to the extent necessary to cause the Available Amount B to be not less than zero.
Any partial reduction of the Line of Credit B Loan Commitments pursuant to this Section
2.3(c) shall result in a reduction pro-rata of the Line of Credit B Loan Commitments of each of
the Lenders. In the event Borrower elects to terminate the Line of Credit A Loan Commitments in
whole as set forth in this Section 2.3(c), then Borrower shall also terminate the Line of
Credit B Loan Commitments in whole as set forth in this Section 2.3(c).



2.4 Purpose. The purpose of the Line of Credit A and the Line of Credit B is to
provide funds for the general working capital purposes of Borrower and its consolidated
subsidiaries.



2.5 Loan and Letter of Credit Fees.



(a) Agent’s Fee. Borrower agrees to pay to the Agent, in respect of its
administrative duties hereunder: a one time arranger fee on the Closing Date; an annual agent’s fee
on the Closing Date and on each anniversary date to the Maturity Date; and one time fronting fees
from time to time in respect of the initial Issuance of Letters, all in amounts as set forth in the
Agent’s Letter. Each of the Agent’s fees shall be fully earned on the date they become payable and
if not paid timely by Borrower, at the option of the Agent, shall be paid by Advances pursuant to
Section 2.1, without prior demand by the Agent. No Persons other than the Agent shall have
any interest in any such Agent’s fees.



(b) Initial Commitment Fees. Borrower agrees to pay to the Agent for distribution to
the Lenders, including the Agent the one time initial commitment fees in amounts as set forth in
the Agent’s Letter. Each of these fees shall be fully earned and if not paid timely by Borrower,
at the option of the Agent, shall be paid by Advances pursuant to Section 2.1, without
prior demand by the Agent.



(c) Quarterly Non-Use Fees. Borrower agrees to pay to the Agent for distribution to
the Lenders (based on their respective pro rata average principal amounts outstanding under the
Swing Line, the Line of Credit A and the Line of Credit B or, as applicable, their respective Pro
Rata Percentages if, in any case, said average principal amounts outstanding are zero) quarterly
non-use fees (“Non-Use Fees”) through the Maturity Date, calculated using the then applicable rates
per annum set forth in the definition of Applicable Margin, and applied to the daily average
Available Amount A and Available Amount B, respectively. The quarterly Non-Use Fees shall be due
and payable in arrears with respect to the prior quarter on the first day of each January, April,
July and October hereafter through the Maturity Date. Pro-rated Non-Use Fees shall be due and
payable on the first day of the quarter following the Closing Date and on the Maturity Date.
Pro-rated Non-Use Fees shall be due and payable to the Lenders on the Closing Date based on the
Commitments and outstanding amounts under the Prior Agreement. The quarterly Non-Use Fees shall be
fully earned as they accrue and if not paid timely by Borrower, at the option of the Agent, shall
be paid by Advances pursuant to Section 2.1, without prior demand by the Agent.



(d) Letter of Credit Fees. Borrower agrees to pay to the Agent, for distribution to
the Lenders (based on their respective Pro Rata Percentages), quarterly fees (“Commercial LC Fees”
and “Standby LC Fees", respectively), payable in arrears with respect to the prior quarter on the
first day of each January, April, July and October, in respect of each Letter Issued hereunder,
calculated using the then applicable rates per annum set forth in the definition of Applicable
Margin, and applied to daily average face amounts of all Letters outstanding during such quarter,
respectively. Pro-rated LC Fees and Standby LC Fees shall be due and payable on the first day of
the quarter following the Closing Date, on the Maturity Date and, with respect to a Letter that
terminates, on the date such Letter terminates. Pro-rated LC Fees and Standby LC Fees shall be due
and payable to the Lenders on the Closing Date based on the Letters outstanding under the Prior
Agreement. Borrower shall also pay to the Agent for the account of the Issuer Issuing any Letter,
the normal and customary processing fees charged by such Issuer in connection with the Issuance of
or drawings under each such Letter. Commercial LC Fees, Standby LC Fees and related processing
fees shall be fully earned as they accrue and if not paid timely by Borrower, at the option of the
Agent, shall be paid by Advances pursuant to Section 2.1, without prior demand by the
Agent.



(e) Calculation of Fees. The fees payable under this Section 2.5 which are
based on an annual percentage rate shall be calculated by the Agent on the basis of a 360-day year,
for the actual days (including the first day but excluding the last day) occurring in the period
for which such fee is payable. Each determination by the Agent of fees payable under this
Section 2.5 shall be conclusive and binding for all purposes, absent manifest error.



(f) Fees Not Interest. The fees described in this Agreement represent compensation
for services rendered and to be rendered separate and apart from the lending of money or the
provision of credit and do not constitute compensation for the use, detention, or forbearance of
money, and the obligation of Borrower to pay each fee described herein shall be in addition to, and
not in lieu of, the obligation of Borrower to pay interest, other fees described in this Agreement,
and expenses otherwise described in this Agreement. Fees shall be payable when due in Dollars and
in Immediately Available Funds. All fees shall be non-refundable.



2.6 Borrower’s Loan Account. The Agent shall maintain a loan account (“Loan Account”)
on its books in which shall be recorded: (a) all Line of Credit A Advances made by the Agent to
Borrower pursuant to this Agreement; (b) all Line of Credit B Advances made by the Agent to
Borrower pursuant to this Agreement; (c) all receipts and disbursements from and to the other
Lenders; (d) all payments made by Borrower; and (e) all other appropriate debits and credits as
provided in this Agreement, including without limitation, all receipts of fees, charges, expenses
and interest. All entries in Borrower’s Loan Account shall be made in accordance with the Agent’s
customary accounting practices as in effect from time to time. Borrower promises to pay the amount
reflected as owing by and under its Loan Account and all other obligations hereunder as such
amounts become due or are declared due pursuant to the terms of this Agreement.



2.7 Statements. All Advances to Borrower, and all other debits and credits provided
for in this Agreement, shall be evidenced by entries made by the Agent in its internal data control
systems showing the date, amount and reason for each such debit or credit. Until such time as the
Agent shall have rendered to Borrower and the Lenders written statements of account, the balance in
Borrower’s Loan Account, as set forth on the Agent’s most recent printout, shall be rebuttable
presumptive evidence of the amounts due and owing the Lenders by Borrower and, as the case may be,
by the Lenders to each other. On or about the last day of each calendar month, the Agent shall
mail to Borrower a statement setting forth the balance of Borrower’s Loan Account, including
without limitation, principal, interest, expenses and fees. Each such statement shall be subject
to subsequent adjustment by the Agent but shall, absent manifest errors or omissions, be presumed
correct and binding upon Borrower and shall constitute an account stated unless, within sixty (60)
days after receipt of any statement from the Agent, Borrower or a Lender shall deliver to the Agent
written objection specifying the error or errors, if any, contained in such statement.



2.8 Termination of Agreement. Subject to and in accordance with Section 9.1,
the Agent shall have the right, without notice to Borrower, to terminate the Commitments
immediately upon a Matured Default. In addition, the Commitments shall be deemed immediately
terminated and all of the Liabilities shall be immediately due and payable, without notice to
Borrower, on the Maturity Date. In the event the Commitments are terminated, the remainder of this
Agreement shall remain in full force and effect until the payment in full of the Liabilities and
the termination of any Letters. Notwithstanding the foregoing, in the event that a proceeding
under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or
receivership law or statute is filed by or against Borrower or any Guarantor of the Liabilities, or
Borrower or any Guarantor of the Liabilities makes an assignment for the benefit of creditors, the
Commitments shall be deemed to be terminated immediately, and all the Liabilities shall be due and
payable, without presentment, demand, protest or further notice (including without limitation,
notice of intent to accelerate and notice of acceleration) of any kind, all of which are expressly
waived by Borrower, provided, however, that in the event a proceeding against
Borrower or any Guarantor of the Liabilities is dismissed within sixty (60) days of the date of its
filing then the Commitments shall be deemed to be reinstated as of the date the order of dismissal
becomes final and the Agent is given notice thereof, and provided, however, the
automatic reimbursement of the Issuer by the Lenders as provided for in this Agreement shall
continue with respect to any post-petition drawings under any Letters. This Agreement shall
terminate when the Commitments have terminated, any Letters Issued hereunder have terminated and
the Liabilities have been indefeasibly paid in full.



3 INTENTIONALLY OMITTED.



4 CONDITIONS TO ADVANCES.



Notwithstanding any other provisions to the contrary contained in this Agreement, the making
of Advances or the issuance of Letters provided for in this Agreement shall be conditioned upon the
following:



4.1 Approval of the Agent’s Counsel. Legal matters, if any, relating to any Advance
shall have been reviewed by and shall be satisfactory to counsel for the Agent.



4.2 Compliance. All representations and warranties contained in this Agreement shall
be true on and as of the date of the making of each Advance as if such representations and
warranties had been made on and as of such date, and no Default or Matured Default shall have
occurred and be continuing or shall exist.



4.3 Documentation. Prior to the initial Advance under this Agreement, Borrower shall
have executed and/or delivered to the Agent all of the documents listed on the List of Closing
Documents attached as Exhibit 4A.



5 GUARANTIES.



5.1 Guaranties. Borrower agrees to maintain, for the ratable benefit of the Lenders,
the guaranty of the following consolidated subsidiaries of Borrower: The Andersons Agriculture
Group, L.P., The Andersons Lawn Fertilizer Division, Inc., an Ohio corporation, and Douglass
Fertilizer & Chemical, Inc., a Florida corporation, the form of which is attached as
Exhibit 5A.



5.2 Additional Guaranties. After the date of this Agreement, Borrower agrees to
obtain, for the ratable benefit of the Lenders, the guaranty or guaranties of any consolidated
subsidiary of Borrower that is a Material Subsidiary, the form of which is attached as
Exhibit 5A (together with the consolidated subsidiaries referred to in Section 5.1,
collectively “Guarantor”). “Material Subsidiary” shall mean a consolidated subsidiary that
accounted for more than 5% of EBITDA of Borrower and its consolidated subsidiaries for the most
recently completed fiscal quarter with respect to which, pursuant to Section 7.1, financial
statements have been, or are required to have been, delivered by Borrower on or before the date as
of which any such determination is made, as reflected in such financial statements, and (ii) has
assets which represent more than 5% of the consolidated gross assets of Borrower and its
consolidated subsidiaries as of the last day of the most recently completed fiscal quarter with
respect to which, pursuant to Section 7.1, financial statements have been, or are required
to have been, delivered by Borrower on or before the date as of which any such determination is
made, as reflected in such financial statements. "EBITDA” shall mean, during any period of
determination, the net income of Borrower and its consolidated subsidiaries before provision for
income taxes, interest expense (including without limitation, implicit interest expense on
capitalized leases), depreciation expense, amortization expense and other non-cash expenses or
charges, excluding (to the extent included): (a) non-operating gains (including without limitation,
extraordinary or nonrecurring gains, gains from discontinuance of operations and gains arising from
the sale of assets other than Inventory) during the applicable period; and (b) similar
non-operating losses during such period.



6 WARRANTIES.



Borrower represents and warrants to the Lenders that:



6.1 Litigation and Proceedings. Except as set forth on Part 1 of Exhibit 6A
and except for judgments and pending or, to the best of Borrower’s knowledge, threatened
litigation, contested claims and governmental proceedings which are not, in the aggregate, material
to Borrower’s financial condition, results of operations or business, no judgments are outstanding
against Borrower and its consolidated subsidiaries, nor is there pending or threatened any
litigation, contested claim, or governmental proceeding by, against or with respect to Borrower and
its consolidated subsidiaries.



6.2 Other Agreements. Except as set forth on part 2 of Exhibit 6A, Borrower
and its consolidated subsidiaries are not in default under any contract, lease or commitment to
which Borrower or its consolidated subsidiaries are a party or by which Borrower and its
consolidated subsidiaries are bound, except those which are not, in the aggregate, material to
Borrower’s and its consolidated subsidiaries financial condition, results of operations or
business. Borrower knows of no dispute, except as set forth on part 2 of Exhibit 6A,
relating to any contract, lease, or commitment of Borrower and its consolidated subsidiaries,
except those which are not, in the aggregate, material to Borrower’s financial condition, results
of operations or business.



6.3 Licenses, Patents, Copyrights, Trademarks and Trade Names. There is no action,
proceeding, claim or complaint pending or threatened to be brought against Borrower or its
consolidated subsidiaries by any Person which might jeopardize any of Borrower’s or its
consolidated subsidiaries interest in any licenses, patents, copyrights, trademarks, trade names or
applications except those which are not, in the aggregate, material to Borrower’s financial
condition, results of operations or business.



6.4 Encumbrances. Except as permitted under Section 8.1 and except as set
forth on part 3 of Exhibit 6A, all of the property of Borrower and its consolidated
subsidiaries is free and clear of all security interests, liens, claims and encumbrances. No Goods
held by Borrower and its consolidated subsidiaries on consignment or under sale or return contracts
have been represented to be Inventory and no amounts receivable by Borrower and its consolidated
subsidiaries in respect of the sale of such Goods (except markups or commissions which have been
fully earned by Borrower and its consolidated subsidiaries) have been represented to be Accounts.
All Producer Payables which are owing to suppliers of any of the Inventory have been paid when due,
other than those being contested in good faith by Borrower and its consolidated subsidiaries, and
no Person to whom such Producer Payables are owed has demanded turnover of any Inventory or
proceeds thereof. Borrower and its consolidated subsidiaries has adequate procedures in place to
insure that Inventory purchased by Borrower and its consolidated subsidiaries is free of security
interests in accordance with the Federal Food Security Act.



6.5 Location of Assets; Chief Executive Office. The chief executive office of
Borrower is located at 480 West Dussel Drive, Maumee, OH 43537. As of the execution of this
Agreement, the books and records of Borrower are located at the chief executive office of Borrower.
If Borrower shall intend to make any change in any of such locations, Borrower shall notify the
Agent at least 30 days prior to such change.



6.6 Tax Liabilities. Borrower and its consolidated subsidiaries have filed all
federal, state and local tax reports and returns required by any law or regulation to be filed by
Borrower and its consolidated subsidiaries and they have either duly paid all taxes, duties and
charges indicated to be due on the basis of such returns and reports or has made adequate provision
for the payment thereof, and the assessment of any material amount of additional taxes in excess of
those paid and reported is not reasonably expected. The reserves for taxes reflected on Borrower’s
consolidated balance sheet are adequate in amount for the payment of all liabilities for all taxes
(whether or not disputed) of Borrower and its consolidated subsidiaries accrued through the date of
such balance sheet. There are no material unresolved questions or claims concerning any tax
liability of Borrower and its consolidated subsidiaries, except as described on part 4 of
Exhibit 6A.



6.7 Indebtedness. Except as contemplated by this Agreement, as disclosed on part 5 of
Exhibit 6A and as disclosed on the financial statements identified in Section 6.13,
Borrower has no other indebtedness, contingent obligations or liabilities, outstanding bonds,
letters of credit or acceptances to any other Person or loan commitments from any other Person,
other than accounts payable incurred in the ordinary course of business.



6.8 Affiliates. Borrower and its consolidated subsidiaries have no Affiliates, other
than their directors, officers, agents and employees and those Persons disclosed on part 6 of
Exhibit 6A as updated from time to time by Borrower, and the legal relationship of Borrower
and its consolidated subsidiaries to each such Affiliate is accurately and completely described
thereon.



6.9 Environmental Matters. Except as disclosed on part 7 of Exhibit 6A, (a)
Borrower and its consolidated subsidiaries have not received any notice to the effect, or have any
knowledge, that the Property or its operations are not in compliance with any of the requirements
of applicable federal, state and local environmental, health and safety statutes and regulations
(“Environmental Laws”) or are the subject of any federal or state investigation evaluating whether
any remedial action is needed to respond to a release of any toxic or hazardous waste or substance
into the environment, which noncompliance or remedial action could have a material adverse effect
on the business, operations, Property, assets or conditions (financial or otherwise) of Borrower
and its consolidated subsidiaries; (b) there have been no releases of hazardous materials at, on or
under the Property that, singly or in the aggregate could have a material adverse effect on the
business, operations, Property, assets or conditions (financial or otherwise) of Borrower and its
consolidated subsidiaries; (c) there are no underground storage tanks, active or abandoned,
including without limitation petroleum storage tanks, on or under the Property that, singly or in
the aggregate could have a material adverse effect on the business, operations, Property, assets or
conditions (financial or otherwise) of Borrower and its consolidated subsidiaries; (d) Borrower and
its consolidated subsidiaries have not directly transported or directly arranged for the
transportation of any hazardous material to any location which is listed or proposed for listing on
the National Priorities List pursuant to CERCLA or on any similar state list or which is the
subject of federal, state or local enforcement actions or other investigations which may lead to
material claims against Borrower and its consolidated subsidiaries for any remedial work, damage to
natural resources or personal injury, including without limitation, claims under CERCLA; and (e) no
conditions exist at, on or under the Property which, with the giving of notice, would rise to any
material liability under any Environmental Laws.



6.10 Existence. Borrower is a corporation duly organized and in good standing under
the laws of the State of Ohio and Borrower and its consolidated subsidiaries are duly qualified to
do business and are in good standing in all states where such qualification is necessary, except
for those jurisdictions in which the failure so to qualify would not, in the aggregate, have a
material adverse effect on Borrower’s financial condition, results of operations or business.



6.11 Authority. The execution and delivery by Borrower of this Agreement and all of
the other Financing Agreements and the performance of Borrower’s obligations hereunder and
thereunder: (a) are within Borrower’s powers; (b) are duly authorized by Borrower’s board of
directors; (c) are not in contravention of the terms of Borrower’s articles or certificate of
incorporation or code of regulations; (d) are not in contravention of any law or laws, or of the
terms of any indenture, agreement or undertaking to which Borrower is a party or by which Borrower
or any of Borrower’s property is bound; (e) do not require any consent, registration or approval of
any Governmental Authority or of any other Person, except such consents or approvals as have been
obtained; (f) do not contravene any contractual restriction or Governmental Requirement binding
upon Borrower; and (g) will not, except as contemplated or permitted by this Agreement, result in
the imposition of any lien, charge, security interest or encumbrance upon any property of Borrower
under any existing indenture, mortgage, deed of trust, loan or credit agreement or other material
agreement or instrument to which Borrower is a party or by which Borrower or any of Borrower’s
property may be bound or affected. Borrower shall deliver to the Agent, upon the Agent’s request
therefor, a written opinion of counsel as to the matters described in the foregoing clauses (a)
through (g).



6.12 Binding Effect. This Agreement and all of the other Financing Agreements set
forth the legal, valid and binding obligations of Borrower and the Guarantors of the Liabilities,
respectively, and are enforceable against Borrower and the Guarantors of the Liabilities,
respectively, in accordance with their respective terms.



6.13 Correctness of Financial Statements. The consolidated financial statements
delivered from time to time by Borrower to the Lenders present fairly the financial condition of
Borrower and its consolidated subsidiaries, and have been prepared in accordance with GAAP
consistently applied. Since the date of the most recent financial statements delivered to the
Lenders, there has been no materially adverse change in the condition or operation of Borrower and
its consolidated subsidiaries.



6.14 Employee Controversies. Except as set forth on Part 1 of Exhibit 6A,
there are no controversies pending or, to the best of Borrower’s knowledge, threatened between
Borrower and its consolidated subsidiaries or any of their employees, other than employee
grievances arising in the ordinary course of business or which are not, in the aggregate, material
to Borrower’s financial condition, results of operations or business.



6.15 Compliance with Laws and Regulations. Borrower and its consolidated subsidiaries
are in compliance with all Governmental Requirements relating to the business operations and the
assets of Borrower and its consolidated subsidiaries, except for Governmental Requirements, the
violation of which would not have a material adverse effect on Borrower’s financial condition,
results of operations or business.



6.16 Account Warranties. Except as disclosed to the Agent from time to time in
writing, all Accounts which are reflected on Borrower’s financial statements delivered to the Agent
pursuant to Section 7.1 are genuine, in all respects what they purport to be, have not been
reduced to any judgment, are evidenced by not more than one executed original agreement, contract
or document, and represent undisputed, bona fide transactions completed in accordance with the
terms and conditions of any related document; the Accounts have not been pledged, sold or assigned
to any Person; and except as disclosed to the Agent from time to time in writing, Borrower has no
knowledge of any fact or circumstance which would impair the validity or collectibility of any of
the Accounts that in the aggregate are material in amount.



6.17 Inventory Warranties. Except as disclosed to the Agent from time to time in
writing, all Inventory reflected on Borrower’s financial statements delivered to the Agent pursuant
to Section 7.1 shall be of good and merchantable quality, free from any defects which might
affect the market value of such Inventory.



6.18 Solvency. Borrower and its consolidated subsidiaries are solvent, able to pay
their debts generally as such debts mature, and have capital sufficient to carry on their business
and all businesses in which they are about to engage. The saleable value of the total consolidated
assets of Borrower and its consolidated subsidiaries at a fair valuation, and at a present fair
saleable value, is greater than the amount of total consolidated obligations of Borrower and its
consolidated subsidiaries to all Persons (taking into account, as applicable, rights of
contribution, subrogation and indemnity with regard to obligations shared with others). Borrower
and its consolidated subsidiaries will not be rendered insolvent by the execution or delivery of
this Agreement or of any of the other Financing Agreements or by the transactions contemplated
hereunder or thereunder.



6.19 Pension Reform Act. No events, including without limitation, any “reportable
event” or “prohibited transactions,” as those terms are defined in the Employee Retirement Income
Security Act of 1974 as the same may be amended from time to time (“ERISA”), have occurred in
connection with any type of plan, arrangement, association or fund covered by ERISA in which any
personnel of Borrower or an Affiliate which is under common control with Borrower (within the
meaning of applicable provisions of the IRC) participate (“Benefit Plans"). The Benefit Plans are
otherwise in compliance with all applicable provisions of ERISA and the IRC and meet the minimum
funding standards of ERISA and the IRC.



6.20 Margin Security. Borrower does not own any margin security and none of the loans
advanced hereunder shall be used for the purpose of purchasing or carrying any margin securities or
for the purpose of reducing or retiring any indebtedness which was originally incurred to purchase
any margin securities or for any other purpose not permitted by Regulations T, U or X of the Board
of Governors of the Federal Reserve System.



6.21 Investment Company Act Not Applicable. Borrower 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.



6.22 Full Disclosure. All factual information taken as a whole in the materials
furnished by or on behalf of Borrower to the Agent or any Lender for purposes of or in connection
with the transactions contemplated under this Agreement and the other Financing Agreements, does
not contain any untrue statement of a material fact or omit to state any material fact necessary to
keep the statements contained therein from being misleading as of the date of this Agreement, and
thereafter as supplemented by information provided to the Agent or the Lenders in writing pursuant
to this Agreement. The financial projections and other financial information furnished to the Agent
and the Lenders by Borrower and to be delivered under this Agreement, were prepared in good faith
on the basis of information and assumptions that Borrower believed to be reasonable as of the date
of such information.



6.23 Intellectual Property. Borrower and its consolidated subsidiaries own or
possess (or will be licensed or otherwise have the full right to use) all intellectual property
that is necessary for the operation of their business, without any known conflict with the rights
of others. No product of Borrower and its consolidated subsidiaries infringes upon any
intellectual property owned by any other Person and no claim or litigation is pending or (to the
knowledge of Borrower) threatened against or affecting such Person, contesting its right to sell or
to use any product or material, in any case which could have a material adverse effect on the
business, operations, Property, assets or conditions (financial or otherwise) of Borrower and its
consolidated subsidiaries.



6.24 Survival of Warranties. All representations and warranties contained in this
Agreement or any of the other Financing Agreements shall survive the execution and delivery of this
Agreement and shall be true from the date of this Agreement until the Liabilities shall be paid in
full and the Lenders shall cease to be committed to make Loans or Issue Letters under this
Agreement.



7 AFFIRMATIVE COVENANTS.



Borrower covenants and agrees that so long as any Liabilities remain outstanding, and (even if
there shall be no Liabilities outstanding) so long as the Lenders remain committed to make Loans or
Issue Letters under this Agreement:



7.1 Financial and Other Information. Except as otherwise expressly provided for in
this Agreement, Borrower shall keep proper books of record and account in which full and true
entries will be made of all dealings and transactions of or in relation to the business and affairs
of Borrower and its consolidated subsidiaries, in accordance with GAAP consistently applied, and
Borrower shall cause to be furnished to the Agent (with copies to the other Lenders, from time to
time and in a form acceptable to the Agent, such information as the Agent may reasonably request,
including without limitation, the following:



(a) as soon as practicable and in any event within ninety (90) days after the end of each
fiscal year of Borrower, audited consolidated statements of income, retained earnings and cash flow
of Borrower and its consolidated subsidiaries for each year, and a consolidated balance sheet of
Borrower and its consolidated subsidiaries for such year, setting forth in each case, in
comparative form, corresponding figures as of the end of the preceding fiscal year, all in
reasonable detail and satisfactory in scope to the Agent and certified to Borrower by such
independent public accountants as are selected by Borrower and satisfactory to the Agent, whose
opinion shall be unqualified and otherwise in scope and substance satisfactory to the Agent; and
(ii) copies of all SEC 10(K) filings of Borrower;



(b) as soon as practicable and in any event within forty five (45) days after the end of each
quarterly accounting period in each fiscal year of Borrower: (i) consolidated statements of income
and retained earnings of Borrower and its consolidated subsidiaries for such quarterly period and
for the period from the beginning of the then current fiscal year to the end of such quarterly
period, and a consolidated balance sheet of Borrower and its consolidated subsidiaries as of the
end of such quarterly period, setting forth in each case, in comparative form, figures for the
corresponding periods in the preceding fiscal year, all in reasonable detail and certified as
accurate by the chief financial officer of Borrower, subject to changes resulting from normal year
end adjustments, (ii) copies of all SEC 10(Q) filings of Borrower, (iii) a compliance certificate
of the chief financial officer of Borrower in substantially the form attached as Exhibit 7A
(“Compliance Certificate”);



7.2 Conduct of Business. Borrower and its consolidated subsidiaries shall: (a)
maintain their existence and maintain in full force and effect all licenses, bonds, franchises,
leases, patents, contracts and other rights necessary to the conduct of their business; (b)
continue in, and limit their operations to, the same general line of business as that presently
conducted by them; (c) comply with all Governmental Requirements, except for such Governmental
Requirements the violation of which would not, in the aggregate, have a material adverse effect on
Borrower’s financial condition, results of operations or business; (d) keep and conduct their
business separate and apart from the business of Affiliates; and (e) otherwise do all things
necessary to make the Representations and Warranties set forth in Section 6 of this
Agreement true and correct at all times.



7.3 Insurance. Borrower and its consolidated subsidiaries shall maintain, at their
expense, such liability and property insurance (including as applicable commercial general
liability insurance, products liability insurance and workman’s compensation insurance) with
financially sound and reputable insurance companies as is ordinarily maintained by other companies
of similar size in similar businesses.



7.4 Financial Covenants and Ratios. Borrower shall maintain at all times: (a) a
Tangible Net Worth of not less than $300,000,000; (b) a Current Ratio Net of Hedged Inventory of
not less than 1.25 to 1; (c) a Debt to Capitalization Ratio of not more than 70%; (d) Working
Capital of not less than $175,000,000; (e) an Asset Coverage Ratio of not more than 70%; and (f) an
Interest Coverage Ratio of not less than 2.75 to 1.



7.5 Benefit Plans. Borrower and its consolidated subsidiaries shall: (a) keep in
full force and effect any and all Benefit Plans which are presently in existence or may, from time
to time, come into existence under ERISA, unless such Benefit Plans can be terminated without
material liability to Borrower and its consolidated subsidiaries in connection with such
termination (as distinguished from any continuing funding obligation); (b) make contributions to
all Benefit Plans in a timely manner and in an amount sufficient to comply with the requirements of
ERISA; (c) comply with all requirements of ERISA which relate to such Benefit Plans; and (d) notify
the Agent immediately upon receipt by Borrower and its consolidated subsidiaries of any notice of
the institution of any proceeding or other action relating to any Benefit Plans that would
reasonably be expected to have a material adverse effect on Borrower or its financial condition.



7.6 Notice of Suit, Adverse Change in Business or Default. Borrower shall, as soon as
possible, and in any event within five (5) Business Days after Borrower learns of the following,
give written notice to the Agent of: (a) any proceeding being instituted or threatened to be
instituted by or against Borrower or its consolidated subsidiaries in any federal, state, local or
foreign court or before any commission or other regulatory body (federal, state, local or foreign)
for which claimed damages exceed $5,000,000; (b) any material adverse change in the business,
assets or condition, financial or otherwise, of Borrower and its consolidated subsidiaries; and (c)
the occurrence of any Default.



7.7 Use of Proceeds. Borrower and its consolidated subsidiaries shall use Advances
only for the purposes stated in Section 2.4 and for no other purpose.



7.8 Books and Records. Borrower and its consolidated subsidiaries shall maintain
proper books of record and account in accordance with GAAP consistently applied in which true, full
and correct entries will be made of all their respective dealings and business affairs. If any
changes in accounting principles are hereafter required or permitted by GAAP and are adopted by
Borrower and its consolidated subsidiaries with the concurrence of its independent certified public
accountants and such changes in GAAP result in a change in the method of calculation or the
interpretation of any of the financial covenants, standards or terms found in Section 7.4
or any other provision of this Agreement, Borrower and the Required Lenders agree to amend any such
affected terms and provisions so as to reflect such changes in GAAP with the result that the
criteria for evaluating Borrower’s financial condition shall be the same after such changes in GAAP
as if such changes in GAAP had not been made.



8 NEGATIVE COVENANTS.



Borrower covenants and agrees that so long as any Liabilities remain outstanding, and (even if
there shall be no Liabilities outstanding) so long as the Lenders remain committed to make Loans or
Issue Letters under this Agreement (unless the Agent, with the written approval of the Required
Lenders, shall give the Agent’s prior written consent):



8.1 Encumbrances. Except for those liens, security interests and encumbrances
presently in existence and reflected in Borrower’s financial statements referred to in Section
6.13 and disclosed in Exhibit 6A under Section 6.4, Borrower and its
consolidated subsidiaries shall not create, incur, assume or suffer to exist any security interest,
mortgage, pledge, lien, capitalized lease, levy, assessment, attachment, seizure, writ, distress
warrant, or other encumbrance of any nature whatsoever on or with regard to any of their assets
other than: (a) liens securing the payment of taxes, either not yet due or the validity of which
is being contested in good faith by appropriate proceedings, and as to which Borrower shall, if
appropriate under GAAP, have set aside on Borrower’s books and records adequate reserves; (b) liens
securing deposits under workmen’s compensation, unemployment insurance, social security and other
similar laws, or securing the performance of bids, tenders, contracts (other than for the repayment
of borrowed money) or leases, or securing indemnity, performance or other similar bonds for the
performance of bids, tenders, contracts (other than for the repayment of borrowed money) or leases,
or securing statutory obligations or surety or appeal bonds, or securing indemnity, performance or
other similar bonds in the ordinary course of Borrower’s business, which are not past due; (c)
liens securing the interests of the broker with respect to any Margin Account; and (d) any other
liens, security interests and encumbrances on property of Borrower and its consolidated
subsidiaries other than Inventory, Accounts, General Intangibles (including contract rights) or the
direct proceeds thereof.



8.2 Consolidations, Mergers or Acquisitions. Borrower and its consolidated
subsidiaries shall not enter into or execute any agreement to recapitalize or consolidate with,
merge with, or otherwise acquire the assets or properties of any other Person except: (a) Borrower
may acquire the assets of its consolidated subsidiaries or merge with its consolidated
subsidiaries, provided that Borrower is the survivor of any such merger; (b) Borrower may acquire
Inventory in the ordinary course of business, and (c) provided that no Matured Default has occurred
and is continuing or would result thereby, Borrower may make other acquisitions or enter into other
mergers, not to exceed $100,000,000 in the aggregate of exchange or transfer value in fiscal year
2008 of Borrower, and not to exceed $75,000,000 in the aggregate of exchange or transfer value in
any fiscal year of Borrower thereafter, provided, in each case that Borrower is the survivor of any
such merger.



8.3 Indebtedness. Borrower and its consolidated subsidiaries shall not directly or
indirectly, create, issue, incur or assume any Priority Debt. “Priority Debt” means, at any time,
without duplication, the indebtedness of Borrower and its consolidated subsidiaries secured by any
liens, security interests and encumbrances on any property of Borrower and its consolidated
subsidiaries other than indebtedness secured only by liens, security interests and encumbrances
permitted under Section 8.1.



8.4 Guarantees and Other Contingent Obligations. Except as permitted under
Section 8.3, Borrower and its consolidated subsidiaries shall not guarantee, endorse or
otherwise in any way become or be responsible for obligations of any other Person, whether by
agreement to purchase the indebtedness of such Person or through the purchase of Goods, supplies or
services, or maintenance of working capital or other balance sheet covenants or conditions, or by
way of stock purchase, capital contribution, advance or loan for the purpose of paying or
discharging any indebtedness or obligation of such Person or otherwise, except: (a) for
endorsements of negotiable Instruments for collection in the ordinary course of business; and (b)
that they may indemnify their officers, directors and managers to the extent permitted under the
laws of the State in which they are organized and may indemnify (in the customary manner)
underwriters and any selling shareholders in connection with any public offering of Borrower’s
securities.



8.5 Disposition of Property. Borrower and its consolidated subsidiaries shall not
sell, lease, transfer or otherwise dispose of any of their properties, assets or rights in excess
of the aggregate amount of $10,000,000 in book value in any fiscal year of Borrower, except: (a)
Inventory may be sold by Borrower and its consolidated subsidiaries in the ordinary course of
Borrower’s business; and (b) Borrower and its consolidated subsidiaries may dispose of obsolete or
worn out property in the ordinary course of business (which in any event shall be deemed to include
the sale or other disposition of unneeded railcars in the ordinary course of the business of
Borrower and its consolidated subsidiaries).



8.6 Distributions in Respect of Equity. Borrower and its consolidated subsidiaries
shall not directly or indirectly redeem any of Borrower’s shares of capital stock or declare any
dividends in any year on any class of Borrower’s capital stock or make any other Restricted
Payment, except that (a) Borrower may, provided that no Default or Matured Default has occurred and
is continuing or would result thereby, declare and pay dividends that are not in excess of the
aggregate of fifty percent (50%) of a rolling average of positive pretax income with respect to the
current and prior fiscal year of Borrower, and (b) a consolidated subsidiary of Borrower may make a
Restricted Payment to Borrower and its consolidated subsidiaries. “Restricted Payment”
shall mean, with respect to Borrower and its consolidated subsidiaries, (a) any direct or indirect
dividend or distribution (whether in cash, securities or other property), or any direct or indirect
payment of any kind or character (whether in cash, securities or other property) in consideration
for or otherwise in connection with any retirement, purchase, redemption or other acquisition of
any equity interest of Borrower and its consolidated subsidiaries, or any options, warrants or
rights to purchase or acquire any such equity interest of Borrower and its consolidated
subsidiaries, or (b) principal or interest payments (in cash, property or otherwise) on, or
redemptions of, subordinated debt of Borrower and its consolidated subsidiaries; provided
that the term “Restricted Payment” shall not include any dividend or distribution payable solely in
equity interests of Borrower and its consolidated subsidiaries or warrants, options or other rights
to purchase such equity interests.



8.7 Loans to and Transactions with Affiliates. Except for (a) advances for travel and
expenses to their officers, directors, managers, general partners or employees in the ordinary
course of their business, and (b) as permitted by Section 8.8, Borrower and its consolidated
subsidiaries shall not make advances or loans in or to any Affiliates. All transactions with
Affiliates shall be bona fide arms length transactions that are no less favorable to Borrower and
its consolidated subsidiaries than would be a similar transaction with a non-affiliated third
person.



8.8 Deposits, Investments, Advances or Loans. Borrower and its consolidated
subsidiaries shall not make or permit to exist deposits, investments, advances or loans (other than
deposits, investments, advances or loans existing on the date of the execution of this Agreement
and disclosed to the Agent in writing on or prior to such date) in or to Affiliates or any other
Person, except: (a) investments in short term direct obligations of the United States Government
(b) investment grade corporate and state and local government securities (Rated BBB- or better by
Standard & Poor’s Ratings Services, a division of The McGraw Hill Companies, Inc. or rated BAA3 or
better by Moody’s Investors Service, Inc.); (c) certificates of deposit or demand deposit accounts
issued by or maintained with a bank satisfactory to the Agent in the Agent’s reasonable
determination; (d) unsecured advances or loans to officers, directors, employees, as and when
permitted by Section 8.7; (e) unsecured advances or loans in or to any Affiliates that have
executed and delivered a Guaranty; (f) secured loans made by the Borrower to other Persons in the
ordinary course of business not to exceed $75,000,000 in the aggregate in any fiscal year of
Borrower; and (g) other unsecured loans to and/or investments in other Persons by the Borrower not
to exceed $75,000,000 in the aggregate in any fiscal year of Borrower.



9 DEFAULT AND RIGHTS AND REMEDIES; THE AGENT.



9.1 Liabilities. Except as provided in Section 2.8 (regarding automatic
termination of the Commitments and acceleration of the Liabilities in certain events) upon a
Matured Default, the Agent may with the consent of the Required Lenders, and shall at the request
of the Required Lenders, by notice to Borrower and the Lenders, (i) declare the Commitments to be
terminated, whereupon such obligations and the Commitments of each Lender shall terminate, and (ii)
declare all of the Liabilities to be due and payable, whereupon the Liabilities shall become and be
due and payable, without presentment, demand, protest or further notice (including without
limitation, notice of intent to accelerate and notice of acceleration) of any kind, all of which
are expressly waived by Borrower. Anything herein to the contrary notwithstanding, it is
understood that no Lender shall have the right to individually enforce any Financing Agreement
which is entered into with or for the Agent, such enforcement residing with the Agent as
contemplated by the following Section 9.2 of this Agreement and by the applicable
provisions of the other Financing Agreements.



9.2 Rights and Remedies. Upon the occurrence and during the continuance of any
Matured Default, the Agent may with the consent of the Required Lenders (subject to the provisions
of the other Financing Agreements), and shall at the direction of the Required Lenders, proceed to
protect and enforce the rights of the Lenders as set forth in this Section 9.2. The Agent
may proceed by suit in equity, by action at law or both, whether for the specific performance of
any covenant or agreement contained in this Agreement or in any other Financing Agreement or in aid
of the exercise of any power granted in this Agreement or any other Financing Agreement, (i) to
enforce the payment of the Liabilities, or (ii) to foreclose upon any liens, claims, security
interests and/or encumbrances granted pursuant to this Agreement and other Financing Agreements in
the manner set forth therein; it being intended that no remedy conferred herein or in any of the
other Financing Agreements is to be exclusive of any other remedy, and each and every remedy
contained herein or in any other Financing Agreement shall be cumulative and shall be in addition
to every other remedy given hereunder and under the other Financing Agreements, or at any time
existing at law or in equity or by statute or otherwise. Agent shall have, in addition to any
other rights and remedies contained in this Agreement or in any of the other Financing Agreements,
all of the rights and remedies of a secured party under the Code or other applicable laws.



9.3 Waiver of Demand. Borrower expressly waives demand, presentment, protest, and
notice of nonpayment, notice of intent to accelerate and notice of acceleration. Borrower also
waives the benefit of all valuation, appraisal and exemption laws.



9.4 Waiver of Notice. Upon the occurrence and during the continuance of any Matured
Default, Borrower waives, to the fullest extent permitted by applicable law, all rights to notice
and hearing of any kind prior to the exercise by the Agent of the Agent’s rights.



9.5 Authorization and Action. Each Lender appoints the Agent as its Agent under, and
irrevocably authorizes the Agent (subject to Section 9.11) to take such action on its
behalf and to exercise such powers under any Financing Agreement as are delegated to the Agent by
the terms thereof, together with such powers as are reasonably incidental thereto. Without
limitation of the foregoing, each Lender expressly authorizes the Agent to execute, deliver, and
perform its obligations under each of the Financing Agreements to which the Agent is a party, and
to exercise all rights, powers, and remedies that the Agent may have thereunder. As to any matters
not expressly provided for by this Agreement, the Agent shall not be required to exercise any
discretion or take any action, but shall be required to act, or to refrain from acting (and shall
be fully protected in so acting or refraining from acting), upon the instructions of the Required
Lenders, and such instructions shall be binding upon all the Lenders and all holders of any Note;
provided however, that the Agent shall not be required to take any action which
exposes the Agent to personal liability or which is contrary to this Agreement or applicable law.
The Agent agrees to give to each Lender prompt notice of each notice given to it by Borrower
pursuant to the terms of any Financing Agreement.



9.6 Agent’s Reliance, Etc. Neither the Agent nor any of its directors, officers,
agents or employees shall be liable to any Lender for any action taken or omitted to be taken by it
or them under or in connection with any Financing Agreement, except for its or their own gross
negligence or willful misconduct. Without limiting the generality of the foregoing, the Agent: (a)
may treat the original or any successor Lender or holder of any Note as the Lender or the holder
thereof until it receives notice from the Lender or the payee of such Note concerning the
assignment of such Lenders interests or of such Note; (b) may employ and consult with legal counsel
(including counsel for Borrower), independent public accountants, and other experts selected by it
and shall not be liable to any Lender for any action taken, or omitted to be taken, in good faith
by it or them in accordance with the advice of such counsel, accountants, or experts received in
such consultations and shall not be liable for any negligence or misconduct of any such counsel,
accountants or other experts; (c) makes no warranty or representation to any Lender and shall not
be responsible to any Lender for any opinions, certifications, statements, warranties or
representations made in or in connection with any Financing Agreement; (d) shall not have any duty
to any Lender to ascertain or to inquire as to the performance or observance of any of the terms,
covenants, or conditions of any Financing Agreement or any other instrument or document furnished
pursuant thereto or to satisfy itself that all conditions to and requirements for any Loan have
been met or that Borrower is entitled to any Loan or to inspect the property (including the books
and records) of Borrower; (e) shall not be responsible to any Lender for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of any Financing Agreement or
any other instrument or document furnished pursuant thereto; and (f) shall incur no liability under
or in respect of this Agreement by acting upon any notice, consent, certificate, or other
instrument or writing (which may be by telegram, cable, telex, or otherwise) believed by it to be
genuine and signed or sent by the proper party or parties.



9.7 Notices of Defaults. The Agent shall not be deemed to have knowledge of the
occurrence of a Default or a Matured Default unless the Agent has received written notice from a
Lender or Borrower specifying such Default or Matured Default and stating that such notice is a
"Notice of Default”. In the event that the Agent obtains such knowledge of the occurrence
of a Default or a Matured Default, the Agent shall within three (3) Business Days thereafter, give
notice thereof to the Lenders. The Agent shall (subject to Sections 9.1 and 9.2) take such
action with respect to such Default or Matured Default as may be directed by the Required Lenders;
provided that, unless and until the Agent shall have received the directions referred to in
Sections 9.1 and 9.2, the Agent may (but shall not be obligated to) take such action, or
refrain from taking such action, with respect to such Default or Matured Default as it shall deem
advisable and in the best interest of the Lenders.



9.8 The Agent as a Lender, Affiliates. With respect to its Commitment, any Loan made
by it, and the Note issued to it, the Agent shall have the same rights and powers under this
Agreement as any other Lender and may exercise the same as though it were not the Agent; and the
term “Lender” or “Lenders” shall, unless otherwise expressly indicated, include the
Agent in its individual capacity. The Agent and its affiliates may accept deposits from, lend money
to, act as trustee under indentures of, and generally engage in any kind of business with,
Borrower, any of its respective Affiliates and any Person who may do business with or own
securities of Borrower or any such Affiliate, all as if the Agent were not the Agent and without
any duty to account therefor to the Lenders.



9.9 Non-Reliance on Agent and Other Lenders. Each Lender agrees that it has,
independently and without reliance on the Agent or any other Lender, and based on such documents
and information as it has deemed appropriate, made its own credit analysis of Borrower and its
decision to enter into the transactions contemplated by the Financing Agreements and that it will,
independently and without reliance upon the Agent or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under any Financing Agreement. The Agent shall not be
required to keep itself informed as to the performance or observance by Borrower or any other
Person of any Financing Agreement or to inspect the properties or books of Borrower. Except for
notices, reports, and other documents and information expressly required to be furnished to the
Lenders by the Agent hereunder, the Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial condition or business
of Borrower (or any Affiliates) which may come into the possession of the Agent or any of its
affiliates. Notwithstanding the foregoing, the Agent will, upon the request of any Lender, provide
to such Lender, at such Lender’s expense, copies of any and all written information provided to the
Agent by Borrower.



9.10 Indemnification. Notwithstanding anything to the contrary herein contained, the
Agent shall be fully justified in failing or refusing to take any action unless it shall first be
indemnified to its satisfaction by the Lenders against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses, and disbursements of any
kind or nature whatsoever which may be imposed on, incurred by or asserted against the Agent in any
way relating to or arising out of its taking or continuing to take any action. Each Lender agrees
to indemnify the Agent (to the extent not reimbursed by Borrower), on a pro-rata basis
according to such Lender’s Commitments, from and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses and disbursements of any
kind or nature whatsoever which may be imposed on, incurred by, or asserted against the Agent in
any way relating to or arising out of any Financing Agreement or any action taken or omitted by the
Agent under any Financing Agreement; provided that no Lender shall be liable for any
portion of such liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses, or disbursements resulting from the gross negligence or willful misconduct of the
Agent; and provided further, that it is the intention of each Lender to indemnify
the Agent against the consequences of the Agent’s own negligence, whether such negligence be sole,
joint, concurrent, active or passive. Without limiting the foregoing, each Lender agrees to
reimburse the Agent promptly upon demand for its pro-rata share, according to such Lender’s
Commitments of any out-of-pocket expenses (including attorneys’ fees) incurred by the Agent in
connection with the preparation, administration, or enforcement of, or legal advice in respect of
rights or responsibilities under, any Financing Agreement, to the extent that the Agent is not
reimbursed for such expenses by Borrower.



9.11 Successor Agent. The Agent may resign at any time as Agent under the Financing
Agreements by giving written notice thereof to the Lenders and Borrower and may be removed at any
time with or without cause by the Required Lenders. Upon any such resignation or removal, the
Required Lenders shall have the right to appoint a successor Agent with, provided that no Default
has occurred and is continuing hereunder, the prior written consent of Borrower, such consent not
to be unreasonably withheld. If no successor Agent shall have been so appointed by the Required
Lenders or shall have accepted such appointment within sixty (60) days after the retiring Agent’s
giving of notice of resignation or the Required Lenders’ removal of the Agent, then the retiring
Agent may, on behalf of the Lenders, appoint a successor Agent with, provided that no Default has
occurred and is continuing hereunder, the prior written consent of Borrower, such consent not to be
unreasonably withheld, which shall be a commercial bank or other financial institution organized
under the laws of the United States of America or of any State thereof and having a combined
capital and surplus of at least $500,000,000. Upon the acceptance of any appointment as Agent
hereunder by a successor Agent, such successor Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Agent, and the retiring Agent
shall be discharged from its duties and obligations under this Agreement. After the retiring
Agent’s resignation or removal as Agent, the provisions of Section 9.10 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was Agent under this
Agreement.



9.12 Verification of Borrowing Notices. The natural Person signing this Agreement on
behalf of Borrower (or any one of them, if more than one), or any natural Person designated by them
(or any one of them) shall be presumed to have the authority to request Advances or request the
Issuance of Letters under this Agreement. The Agent shall have no duty to verify the authenticity
of the signature appearing on any notice of borrowing or request for the Issuance of a Letter, and
with respect to any oral request for an Advance or request for the Issuance of a Letter, the Agent
shall have no duty to verify the identity of any Person representing himself as one of the natural
Persons authorized to make such request on behalf of Borrower. Neither the Agent nor any Lender
shall incur any liability to Borrower in acting upon any telephonic notice referred to above which
the Agent or such Lender believes in good faith to have been given by a duly authorized Person
authorized to borrow on behalf of Borrower or for otherwise acting in good faith.



10 MISCELLANEOUS.



10.1 Timing of Payments. For purposes of determining the outstanding balance of the
Liabilities, including without limitation, the computations of interest which may from time to time
be owing to the Agent or the Lenders, the receipt by the Agent of any check or any other item of
payment, shall not be treated as a payment on account of the Liabilities until such check or other
item of payment is actually received by the Agent and is paid to the Agent in cash or a cash
equivalent. Notwithstanding the terms of this Agreement or any other Financing Agreement, if the
due date of any payment falls on a day that is not a Business Day, such payment may be made and
shall not be considered late if made on the next succeeding Business Day.



10.2 Attorneys’ Fees and Costs. If at any time the Agent employs counsel in
connection with any matters contemplated by or arising out of this Agreement, whether: (a) to
commence, defend, or intervene in any litigation or to file a petition, complaint, answer, motion
or other pleading; (b) to take any other action in or with respect to any suit or proceeding
(bankruptcy or otherwise); (c) to consult with officers of the Agent to advise the Agent or to
draft documents for the Agent in connection with any of the foregoing or in connection with any
release of the Agent’s claims or any proposed extension, amendment or refinancing of the
Liabilities; or (d) to enforce any rights of the Agent to collect any of the Liabilities; then in
any of such events, all of the reasonable attorneys’ fees arising from such services, and any
related expenses, costs and charges, including without limitation, all fees of all paralegals,
legal assistants and other staff employed by such attorneys whether outside the Agent or in the
Agent’s legal department, together, if not paid promptly by Borrower, with interest at the highest
interest rate then payable by Borrower under this Agreement or any other Financing Agreement, shall
constitute additional Liabilities, payable on demand. In addition, if a Matured Default has
occurred and is continuing, and thereafter any Lender employs counsel in connection with, arising
out of, or any way related to, protecting, exercising or enforcing this Agreement or the other
Financing Agreements or (x) to commence, defend or intervene in any litigation or to file a
petition, complaint, answer, motion or other pleading; (y) to take any other action in or with
respect to any suit or proceeding (bankruptcy or otherwise); or (z) to enforce any rights of such
Lender to collect any of the Liabilities; then in any of such events, all of the reasonable
attorneys’ fees arising from such services, and any expenses, costs and charges relating thereto,
including without limitation, all fees of all paralegals, legal assistants and other staff employed
by such attorneys whether outside the Lender or in the Lender’s legal department, together, if not
paid promptly by Borrower, with interest at the highest interest rate then payable by Borrower
under this Agreement or any other Financing Agreement, shall constitute additional Liabilities,
payable on demand. This Section 10.2 shall survive the termination of this Agreement.



10.3 Expenditures by the Agent. In the event that Borrower shall fail to pay costs or
expenses which Borrower is, under any of the terms hereof or of any of the other Financing
Agreements, required to pay, the Agent may, in the Agent’s sole discretion and without obligation
to do so, make expenditures for any or all of such purposes, and the amount so expended, together,
if not paid promptly by Borrower, with interest at the highest interest rate then payable by
Borrower under this Agreement or any other Financing Agreement, shall constitute additional
Liabilities, payable on demand.



10.4 The Agent’s Costs and Expenses as Additional Liabilities. Borrower shall
reimburse the Agent for all expenses and fees paid or incurred in connection with the
documentation, negotiation and closing of the Loans and other financial accommodations described in
this Agreement (including without limitation, filing fees, recording fees, document or recording
taxes, search fees, appraisal fees and expenses, and the fees and expenses of the Agent’s
attorneys, paralegals, and legal assistants, whether outside the Agent or in the Agent’s legal
department, and whether such expenses and fees are incurred prior to or after the Closing Date).
Borrower further agrees to reimburse the Agent for all expenses and fees paid or incurred in
connection with the documentation of any renewal or extension of the Loans, any additional
financial accommodations, or any other amendments to this Agreement. All costs and expenses
incurred by the Agent with respect to such negotiation and documentation, together, if not paid
promptly by Borrower, with interest at the highest interest rate then payable by Borrower under
this Agreement or any other Financing Agreement, shall constitute additional Liabilities, payable
on demand.



10.5 Claims and Taxes. Borrower agrees to indemnify and hold the Agent and the
Lenders harmless from and against any and all claims, demands, liabilities, losses, damages,
penalties, costs, and expenses (including without limitation, reasonable attorneys’ fees) relating
to or in any way arising out of the possession, use, operation or control of any assets of Borrower
and its consolidated subsidiaries, or arising out of or related to this Agreement or the other
Financing Agreements, which agreement to indemnify and hold the Agent and the Lenders harmless
shall survive the termination of this Agreement. Borrower and its consolidated subsidiaries shall
pay or cause to be paid all taxes and other governmental charges assessed against Borrower and its
consolidated subsidiaries, or payable by Borrower and its consolidated subsidiaries, at such times
and in such manner as to prevent any penalty from accruing or any lien or charge from attaching to
their property, provided, however, that they shall have the right to contest in
good faith, by an appropriate proceeding promptly initiated and diligently conducted, the validity,
amount or imposition of any such tax, and upon such good faith contest to delay or refuse payment
thereof, if: (a) Borrower establishes adequate reserves to cover such contested taxes; and (b) such
contest does not have a material adverse effect on the financial condition of Borrower or the
ability of Borrower to pay any of the Liabilities.



10.6 Custody and Preservation of Collateral. The Agent shall be deemed to have
exercised reasonable care in the custody and preservation of any collateral in the Agent’s
possession if the Agent takes such action for that purpose as Borrower shall request in writing,
but failure by the Agent to comply with any such request shall not of itself be deemed a failure to
exercise reasonable care, and no failure by the Agent or any Lender to preserve or protect any
right with respect to such collateral against prior parties, or to do any act with respect to the
preservation of such collateral not so requested by Borrower, shall of itself be deemed a failure
to exercise reasonable care in the custody or preservation of such collateral.



10.7 Inspection. The Agent (by and through its officers and employees), or any Person
designated by the Agent in writing (including officers and employees of the other Lenders), shall
have the right from time to time, to call at Borrower’s place or places of business during
reasonable business hours, and, without hindrance or delay, to: (a) inspect, audit, check and make
copies of and extracts from Borrower’s books, records, journals, orders, receipts and any
correspondence and other data relating to the business of Borrower and its consolidated
subsidiaries or to any transactions between the parties to this Agreement; (b) make such
verification as the Agent may consider reasonable under the circumstances; and (c) review operating
procedures, review maintenance of property and discuss the affairs, finances and business of
Borrower and its consolidated subsidiaries with Borrower’s officers, employees or directors.



10.8 Examination of Banking Records. Borrower consents to the examination by the
Agent (by and through its officers and employees), or any Person designated by the Agent in writing
(including officers and employees of the other Lenders), whether or not there shall have occurred a
Default or a Matured Default, of any and all of banking records of Borrower and its consolidated
subsidiaries, wherever they may be found, and directs any Person which may be in control or
possession of such records (including without limitation, any bank, other financial institution,
accountant or lawyer) to provide such records to the Agent and the Agent’s officers, employees and
agents, upon their request. Such examination may be conducted by the Agent with or without notice
to Borrower at the option of the Agent, any such notice being waived by Borrower.



10.9 Governmental Reports. Borrower will furnish to the Agent, upon the reasonable
request of the Agent, copies of the reports of examinations or inspections of Borrower and its
consolidated subsidiaries by all Governmental Authorities, and if Borrower fails to furnish such
copies to the Agent, Borrower authorizes all such Government Authorities to furnish to the Agent
copies of their reports of examinations or inspections of Borrower and its consolidated
subsidiaries.



10.10 Reliance by the Agent, the Issuer and the Lenders. All covenants, agreements,
representations and warranties made herein by Borrower shall, notwithstanding any investigation by
the Agent or any of the Lenders, be deemed to be material to and to have been relied upon by the
Agent, the Issuer and the Lenders.



10.11 Parties. Whenever in this Agreement there is reference made to any of the
parties, such reference shall be deemed to include, wherever applicable, a reference to the
respective successors and assigns of Borrower, the Agent, the Lenders and the Issuer. Borrower
shall not assign any of it rights or delegate any of its duties under this Agreement or any of the
other Financing Agreements without the prior written consent of the Lenders.



10.12 Applicable Law; Severability. This Agreement shall be construed in all respects
in accordance with, and governed by, the laws and decisions of the State of Colorado and the laws,
regulations and decisions of the United States applicable to national banks. Wherever possible,
each provision of this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision of this Agreement shall be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of such provisions or the remaining provisions of
this Agreement.



10.13 SUBMISSION TO JURISDICTION; WAIVER OF BOND AND TRIAL BY JURY. WITH RESPECT TO
ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS, CLAIMS, DEMANDS, DEBTS, DAMAGES, COSTS AND EXPENSES,
WHATSOEVER, WHETHER BASED ON STATUTE, COMMON LAW, PRINCIPLES OF EQUITY OR OTHERWISE, ARISING OUT OF
ANY MATTER, THING OR EVENT WHICH IS DIRECTLY OR INDIRECTLY RELATED TO THIS AGREEMENT, BORROWER
CONSENTS TO THE JURISDICTION OF ANY LOCAL, STATE, OR FEDERAL COURT LOCATED WITHIN THE CITY AND
COUNTY OF DENVER, COLORADO AND WAIVES ANY OBJECTION WHICH BORROWER MAY HAVE BASED ON IMPROPER VENUE
OR FORUM NON CONVENIENS TO THE CONDUCT OF ANY PROCEEDING IN ANY SUCH COURT
AND WAIVES PERSONAL SERVICE OF ANY AND ALL PROCESS UPON BORROWER, AND CONSENTS THAT ALL SUCH
SERVICE OF PROCESS BE MADE BY MAIL OR MESSENGER DIRECTED TO BORROWER AT THE ADDRESS SET FORTH IN
SECTION 10.19. SERVICE, SO MADE, SHALL BE DEEMED TO BE COMPLETE UPON THE EARLIER OF ACTUAL
RECEIPT OR THREE (3) DAYS AFTER THE SAME SHALL HAVE BEEN POSTED. AT THE OPTION OF THE AGENT,
BORROWER WAIVES, TO THE EXTENT PERMITTED BY LAW, TRIAL BY JURY, AND WAIVES ANY BOND OR SURETY OR
SECURITY UPON SUCH BOND WHICH MIGHT, BUT FOR THIS WAIVER, BE REQUIRED OF THE AGENT.



10.14 Application of Payments; Waiver. Except as set forth below, payments made by
Borrower under this Agreement shall generally be applied first to any costs or fees owing by
Borrower to the Agent or any Lender, shall be applied second to any interest payments owing
hereunder which are due and unpaid, shall be applied third to any outstanding principal owing
hereunder, shall be applied fourth to the establishment of cash collateral accounts to support LC
Obligations, and shall be applied fifth to interest accrued but not yet due. Notwithstanding any
contrary provision contained in this Agreement or in any of the other Financing Agreements,
Borrower irrevocably waives the right to direct the application of any and all payments at any time
received by the Agent from Borrower, and Borrower irrevocably agrees that the Agent shall have the
continuing exclusive right to apply and reapply any and all payments received at any time against
the Liabilities, in such manner as the Agent may deem advisable (but in accordance with the order
of application set forth above), notwithstanding any entry by the Agent upon any of the Agent’s
books and records. Provided, however, this Section 10.14 shall not apply to any
transactions unrelated to this Agreement in which the Agent, a Lender, an Issuer or any of their
affiliates may have accepted deposits from, lent money to, acted as trustee under indentures of, or
generally engaged in business with Borrower, any Affiliates or any Person who may do business with
or own securities of Borrower or any such Affiliate. Notwithstanding the foregoing, other than
during a Default Period, Bank Products Obligations may be paid, and all transfers, setoffs,
adjustments, credits and debits may be made in the ordinary course of business in accordance with
the terms of the related Bank Products Agreements. During a Default Period, payments and proceeds
of Collateral securing the Bank Products Obligations shall be applied first to Liabilities other
than Bank Products Obligations and shall be applied second to Bank Products Obligations on a pro
rata basis. Notwithstanding the terms of this Section 10.14, any other terms of this
Agreement or any terms of any other Financing Agreement, the Agent shall first apply payments and
proceeds of Collateral to any charge-backs, payments pursuant to any avoidance claims or any other
loss, overdraft, or shortfall with respect to deposit accounts maintained with the Agent or any
other Lender, to the extent that the funds that are the subject of such charge-backs, payments
pursuant to any avoidance claims or any other loss, overdraft, or shortfall have been previously
paid or applied by the Agent to the Liabilities other than Bank Products Obligations. In the event
that such payments and proceeds of Collateral are insufficient to cover such charge-backs, payments
pursuant to any avoidance claims or any other loss, overdraft, or shortfall, then the Agent or any
other Lender shall be indemnified for the resulting loss in the manner provided for in Section
9.10. Immediately Available Funds held by the Agent that are payable to the Lenders in
accordance with the terms of this Agreement (including, but not limited to, this Section 10.14,
Section 2.1.5 and Section 10.1), shall be promptly remitted to the Lenders by the Agent in
accordance with the written instructions given to the Agent by the Lenders, respectively.



10.15 Marshaling; Payments Set Aside. The Agent and the Lenders shall be under no
obligation to marshal any assets in favor of Borrower or against or in payment of any or all of the
Liabilities. To the extent that Borrower makes a payment or payments to the Agent or any Lender
exercises a right of setoff, and such payment or payments or the proceeds of such setoff or any
part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside
and/or required to be repaid to a trustee, receiver or any other party under any bankruptcy law,
state or federal law, common law or equitable cause, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such enforcement or setoff had not
occurred.



10.16 Section Titles. The section titles contained in this Agreement shall be without
substantive meaning or content of any kind whatsoever and are not a part of the agreement between
the parties.



10.17 Continuing Effect. This Agreement and all of the other Financing Agreements
shall continue in full force and effect so long as any Liabilities shall be owed to the Agent
and/or any of the Lenders and (even if there shall be no Liabilities outstanding) so long as the
Agent and/or any of the Lenders remains committed to make Loans or Issue Letters under this
Agreement.



10.18 No Waiver. The Agent’s or the Required Lenders’ failure, at any time or times
hereafter, to require strict performance by Borrower of any provision of this Agreement or the
other Financing Agreements shall not waive, affect or diminish any right of the Agent or the
Required Lenders thereafter to demand strict compliance and performance therewith. Any suspension
or waiver by the Agent or the Required Lenders of any Default or Matured Default under this
Agreement or any of the other Financing Agreements, shall not suspend, waive or affect any other
Default or Matured Default under this Agreement or any of the other Financing Agreements, whether
the same is prior or subsequent thereto and whether of the same or of a different kind or
character. None of the undertakings, agreements, warranties, covenants and representations of
Borrower contained in this Agreement or any of the other Financing Agreements and no Default or
Matured Default under this Agreement or any of the other Financing Agreements, shall be deemed to
have been suspended or waived by the Agent or the Required Lenders unless such suspension or waiver
is in writing signed by an officer of the Agent or each of the Required Lenders (as applicable) and
is directed to Borrower specifying such suspension or waiver.



10.19 Notices. Except as otherwise expressly provided herein, any notice required or
desired to be served, given or delivered pursuant to this Agreement shall be in writing, and shall
be sent by manual delivery, facsimile transmission, overnight courier or United States mail
(postage prepaid) addressed to the party to be notified as follows:



(a) If to the Agent at:




U.S. Bank National Association




Food & Agribusiness Group



DN-CO-T7CS



950 Seventeenth Street, 7th Floor



Denver, Colorado 80202



Attn: Brian Moeller, Senior Vice President



with a copy to:



Campbell Killin Brittan & Ray, LLC



270 St. Paul Street, Suite 200



Denver, Colorado 80206



Attn: Michael D. Killin



(b) If to Borrower at:




The Andersons, Inc.




480 West Dussel Drive



Maumee, OH 43537



Attn: Gary L. Smith, V.P. of Finance / Treasurer



with a copy to:




The Andersons, Inc.




480 West Dussel Drive



Maumee, OH 43537



Attn: Assistant General Counsel / Elizabeth Hall 



or, as to each party, addressed to such other address as shall be designated by such party in a
written notice to the other parties. All such notices shall be deemed given on the date of
delivery if manually delivered, on the date of sending if sent by facsimile transmission, on the
first business day after the date of sending if sent by overnight courier, or three (3) days after
the date of mailing if mailed.



10.20 Regulatory Changes. In the event any Governmental Authority (i) subjects the
Lenders or any of them or any of their respective lending offices to any new or additional charge,
fee, withholding, duty or tax of any kind with respect to any Loans, Letters, LC Obligations or
other Liabilities hereunder, (ii) changes the method or basis of taxation of such Loans, Letters,
LC Obligations or other Liabilities, except for changes in the rate of tax on the overall net
income of such Lender or its lending office imposed by the jurisdiction in which such Lender’s
principal executive office or lending office is located, or (iii) changes the reserve or deposit
requirements applicable to such Loans, Letters, LC Obligations or other Liabilities (including,
without limitation, the imposition, modification or deemed application of any reserve, special
deposit or similar requirement (including, without limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System, but excluding with respect to any LIBOR Rate
Loans any such requirement included in an applicable LIBOR Rate) against assets of, deposits with
or for the account of any Lender, or its lending office, and including without limitation, the
issuance of a request or directive regarding capital adequacy (whether or not having the force of
law) that has the effect of reducing the rate of return on such Lender’s capital as a consequence
of its obligations under this Agreement to a level below that which such Lender could have achieved
but for such adoption, change or compliance (taking into consideration such Lender’s policies with
respect to capital adequacy)), then in any such event, Borrower shall pay to such Lender such
additional amounts as will compensate such Lender for such costs or lost income resulting thereby
as reasonably determined by such Lender.



10.21 LIBOR Rate Loans. Without limiting the generality of Section 10.20,
anything in this Agreement to the contrary notwithstanding, if any Lender shall notify the Agent
that: (i) the introduction of or any change in or in the interpretation of any law or regulation
makes it unlawful, or that any central bank or other Governmental Authority asserts that it is
unlawful to fund or maintain LIBOR Rate Loans (whether or not such assertion carries the force of
law), (ii) deposits in U.S. Dollars (in the applicable amounts) are not being offered to it in the
applicable markets for any requested Interest Period, (iii) by reason of circumstances affecting
the applicable markets adequate and reasonable means do not exist for ascertaining the applicable
LIBOR Rate; (iv) that the applicable LIBOR Rate will not adequately and fairly reflect the cost to
such Lender of funding their LIBOR Rate Loans for such Interest Period or (v) that the making or
funding of LIBOR Rate Loans is impracticable for such Lender, the obligation of such Lender to
make, rollover or to convert Loans into LIBOR Rate Loans shall be suspended until such Lender shall
notify the Agent and Borrower that the circumstances causing such suspension no longer exist, and
the existing LIBOR Rate Loans of such Lender shall automatically convert, on and as of the date of
such notification, into Base Rate Loans; provided that each Lender represents and warrants
to Borrower that as of the later of (i) the Closing Date or (ii) the date on which it shall have
executed an Assignment and Acceptance pursuant to Section 10.23, it has no actual knowledge
that any of the circumstances set forth above exist.



10.22 Taxes. Without limiting the generality of Section 10.20:



(a) Except as otherwise provided in Section 10.22(d), any and all payments by Borrower
hereunder shall be made free and clear of and without deduction for any and all present or future
taxes, deductions, charges or withholdings, and all liabilities with respect thereto, including
without limitation, such taxes, deductions, charges, withholdings or liabilities whatsoever
imposed, assessed, levied or collected by any taxing authority and all (other than to the extent
due to the gross negligence or willful misconduct of any Lender) interest, penalties, expenses or
similar liabilities with respect thereto (“Taxes"), excluding, however, from the definition of
Taxes, in the case of each Lender and the Agent, taxes imposed on its income (including penalties
and interest payable in respect thereof), and franchise taxes imposed on it, by the jurisdiction
under the laws of which such Lender or the Agent (as the case may be) is organized or any political
subdivision thereof. If Borrower shall be required by law to deduct any Taxes from or in respect of
any sum payable hereunder to any Lender or the Agent (other than payments for which taxes are
withheld pursuant to the last sentence of Section 10.22(d)), (i) the sum payable shall be
increased as may be necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 10.22) such Lender or the Agent
(as the case may be) receives an amount equal to the sum it would have received had no such
deductions been made and (ii) Borrower shall pay the full amount deducted to the relevant taxation
authority or other authority in accordance with applicable law, less any credits due to Borrower.



(b) In addition, Borrower agrees to pay any present or future stamp or documentary taxes or
any other excise or property taxes, charges or similar levies which arise from any payment made
hereunder or from the execution, delivery or registration of, or otherwise with respect to, this
Agreement or the Notes (hereinafter included within the definition of “Taxes").



(c) Borrower will indemnify each Lender and the Agent for the full amount of Taxes (including
without limitation, any Taxes imposed by any jurisdiction on amounts payable under this Section
10.22) paid by such Lender or the Agent (as the case may be) and any liability arising
therefrom or with respect thereto, whether or not such Taxes were correctly or legally asserted.
This indemnification shall be made within five (5) days from the date such Lender or the Agent (as
the case may be) makes written demand therefor; provided however, to the extent
that any Lender is reimbursed for any Taxes that were incorrectly or illegally asserted with
respect to Borrower, such Lender shall promptly return to Borrower the amount of such reimbursement
net of any costs of recovery incurred by such Lender and/or the Agent, together with any interest
that may have been paid by the taxing jurisdiction with respect thereto, to the extent Borrower has
actually paid such Lender with respect thereto.



(d) Prior to the date of any Lender becoming a Lender hereunder, and from time to time
thereafter if requested by Borrower or the Agent each Lender organized outside the United States
shall provide the Agent and Borrower with the forms prescribed by the Internal Revenue Service of
the United States (including, without limitation, Form W-8 BEN, Form W-8 ECI, or Form W-8 IMY)
certifying such Lender’s exemption from United States withholding taxes with respect to all
payments to be made to such Lender hereunder. Unless Borrower and the Agent have received forms or
other documents satisfactory to them indicating that payments hereunder are not subject to United
States withholding tax or are subject to such tax at a rate reduced by an applicable tax treaty,
Borrower or the Agent shall withhold taxes from such payments for the account and benefit of
Borrower at the applicable statutory rate in the case of payments to or for any Lender organized
under the laws of a jurisdiction outside the United States; provided however, that
all such withholding for such Lender shall cease upon delivery by such Lender of the applicable
forms to Borrower and Agent.



(e) Promptly after the date on which payment of any Taxes are due pursuant to applicable law,
Borrower will, at the request of the Agent or any Lender, furnish to the Agent or such Lender
evidence in form and substance satisfactory to the Agent or such Lender, that Borrower has met its
obligations under this Section 10.22.



(f) Without prejudice to the survival of any other agreement of Borrower, the agreement and
obligations of Borrower contained in this Section 10.22 shall survive the payment in full
of the Liabilities.



10.23 Assignments and Participation.



(a) After the Closing Date (and, provided that no Default has occurred and is continuing,
subject to the prior written consent of Borrower, such consent not to be unreasonably withheld)
each Lender may assign to any Person (the “Assignee”) all or a portion of its rights and
obligations under this Agreement (including without limitation, all or a portion of its Commitments
and the Notes held by it); provided however, that (i) each such assignment shall be
of a constant, and not a varying, percentage of all of the assigning Lender’s rights and
obligations under this Agreement, (ii) the total amount of the Commitment or Commitments (based on
the original Commitment or Commitments without giving effect to any repayments or prepayments) so
assigned to an Assignee or to an Assignee and its Affiliates taken as a whole shall equal or exceed
$5,000,000, (iii) the remaining Commitment or Commitments (based on the original Commitment or
Commitments without giving effect to any repayments or prepayments) held by the assigning Lender
and its affiliates after giving effect to any such assignment shall equal or exceed $5,000,000,
(iv) the assignment shall not be made to Borrower, an Affiliate or a Guarantor of any of the
Liabilities and shall not cause Borrower to incur any additional liability or expense and (v) the
parties to each such assignment shall execute and deliver to the Agent for its acceptance an
Assignment and Acceptance in substantially the form attached as Schedule B (“Assignment and
Acceptance”), together with any Note or Notes subject to such assignment and a processing and
recordation fee of $5,000. Upon such execution, delivery, acceptance and recording, from and after
the effective date specified in each Assignment and Acceptance, which effective date shall be the
date on which such Assignment and Acceptance is accepted by the Agent, (vi) the Assignee thereunder
shall be a party hereto and, to the extent that rights and obligations hereunder have been assigned
to it pursuant to such Assignment and Acceptance, have the rights and obligations of a Lender under
the Financing Agreements and (vii) the Lender assignor thereunder shall be deemed to have
relinquished its rights and to be released from its obligations under the Financing Agreements, to
the extent (and only to the extent) that its rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance (and, in the case of an Assignment and Acceptance
covering all or the remaining portion of an assigning Lender’s rights and obligations under the
Financing Agreements, such Lender shall cease to be a party thereto).



(b) By executing and delivering an Assignment and Acceptance, the Lender assignor thereunder
and the Assignee thereunder confirm to and agree with each other and the other parties hereto as
follows: (i) other than as provided in such Assignment and Acceptance, such assigning Lender makes
no representation or warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Financing Agreements or the
execution, legality, validity, enforceability, genuineness, sufficiency or value of the Financing
Agreements or any other instrument or document furnished pursuant thereto; (ii) such assigning
Lender makes no representation or warranty and assumes no responsibility with respect to the
financial condition of Borrower or the performance or observance by Borrower of any of its
obligations under the Financing Agreements or any other instrument or document furnished pursuant
hereto; (iii) such Assignee confirms that it has received a copy of the Financing Agreements,
together with copies of the financial statements referred to in Section 7.1 and such other
documents and information as it has deemed appropriate to make its own credit analysis and decision
to enter into such Assignment and Acceptance; (iv) such Assignee will, independently and without
reliance upon the Agent, such assigning Lender or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such Assignee appoints and authorizes the
Agent to take such action as the Agent on its behalf and to exercise such powers under the
Financing Agreements as are delegated to the Agent by the terms thereof, together with such powers
as are reasonably incidental thereto; and (vi) such Assignee agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the Financing Agreements
are required to be performed by it as a Lender.



(c) The Agent shall maintain at its address referred to in Section 10.19 a copy of
each Assignment and Acceptance delivered to and accepted by it.



(d) Upon its receipt of an Assignment and Acceptance executed by an assigning Lender, together
with any Note or Notes subject to such assignment, the Agent shall, if such Assignment and
Acceptance has been completed, (i) accept such Assignment and Acceptance and (ii) give prompt
notice thereof to Borrower. Within five (5) Business Days after its receipt of such notice,
Borrower, at its own expense, shall execute and deliver to the Agent in exchange for the
surrendered Note or Notes, a new Note or new Notes to the order of such Assignee in an amount equal
to the Commitment or Commitments assumed by it pursuant to such Assignment and Acceptance and, if
the assigning Lender has retained a Commitment or Commitments, a portion of which has been
assigned, a new Note or New Notes to the order of the assigning Lender in an amount equal to the
Commitment or Commitments retained by it hereunder. Such new Note or Notes shall be in an
aggregate principal amount equal to the aggregate principal amount of such surrendered Note or
Notes, shall be dated the effective date of such Assignment and Acceptance and shall otherwise be
in substantially the form of Exhibit 2A. Upon receipt by the Agent of such new Note or
Notes conforming to the requirements set forth in the preceding sentences, the Agent shall return
to Borrower such surrendered Note or Notes, marked to show that such surrendered Note or Notes has
(have) been replaced, renewed and extended by such new Note or Notes.



(e) Each Lender may sell participations to one or more banks or other entities in or to all or
a portion of its rights and obligations under this Agreement (including without limitation, all or
a portion of its Commitments and any Note held by it); provided however, that (i)
such Lender’s obligations under this Agreement (including without limitation, its Commitments to
Borrower hereunder) shall remain unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations, (iii) such Lender shall remain the
holder of any such Note for all purposes of this Agreement, (iv) the sale of the participation will
not cause Borrower to incur any additional liability, and (v) Borrower, the Agent and the other
Lenders shall continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under this Agreement, provided that no participant shall be
entitled to recover under the above-described provisions an amount in excess of the proportionate
share which such participant holds of the original aggregate principal amount hereunder to which
the assigning Lender would otherwise be entitled.



(f) Any Lender may, in connection with any assignment or participation or proposed assignment
or participation pursuant to this Section 10.23, disclose to the assignee or participant or
proposed assignee or participant, any information relating to Borrower furnished to such Lender by
or on behalf of Borrower; provided that, prior to any such disclosure, the assignee or
participant or proposed assignee or participant shall agree in writing to preserve the
confidentiality of any confidential information relating to Borrower received by it from such
Lender.



(g) Any Lender may assign and pledge all or any of the instruments held by it as collateral
security; provided that any payment made by Borrower for the benefit of such assigning
and/or pledging Lender in accordance with the terms of the Financing Agreements shall satisfy
Borrower’s obligations under the Financing Agreements in respect thereof to the extent of such
payment. No such assignment and/or pledge shall release the assigning and/or pledging Lender from
its obligations hereunder.



10.24 Maximum Interest. No agreements, conditions, provisions or stipulations
contained in this Agreement or in any of the other Financing Agreements, or any Default or Matured
Default, or any exercise by the Agent of the right to accelerate the payment of the maturity of
principal and interest, or to exercise any option whatsoever, contained in this Agreement or any of
the other Financing Agreements, or the arising of any contingency whatsoever, shall entitle the
Agent to collect, in any event, interest exceeding the maximum authorized by law, and in no event
shall Borrower be obligated to pay interest exceeding such rate, and all agreements, conditions or
stipulations, if any, which may in any event or contingency whatsoever operate to bind, obligate or
compel Borrower to pay a rate of interest exceeding the maximum allowed by law, shall be without
binding force or effect, at law or in equity, to the extent only of the excess of interest over
such maximum interest allowed by law. In the event any interest is charged in excess of the
maximum allowed by law (“Excess”), Borrower acknowledges and stipulates that any such charge shall
be the result of an accidental and bona fide error, and such Excess shall be, first, if a Matured
Default has occurred and is continuing, applied to reduce the principal of any Liabilities due,
and, second, returned to Borrower, it being the intention of the parties not to enter at any time
into a usurious or otherwise illegal relationship. Borrower and the Agent both recognize that,
with fluctuations of index rates and applicable margins, such an unintentional result could
inadvertently occur. By the execution of this Agreement, Borrower covenants that: (a) the credit
or return of any Excess shall constitute the acceptance by Borrower of such Excess; and (b)
Borrower shall not seek or pursue any other remedy, legal or equitable, against the Agent based, in
whole or in part, upon the charging or receiving of any interest in excess of the maximum
authorized by law. For the purpose of determining whether or not any Excess has been contracted
for, charged or received by the Agent, all interest at any time contracted for, charged or received
by the Agent in connection with the Liabilities shall be amortized, prorated, allocated and spread
in equal parts during the entire term of this Agreement. Notwithstanding the foregoing, if for any
period of time interest on any of Borrower’s obligations is calculated at the Highest Lawful Rate
rather than the rate otherwise applicable under this Agreement, and thereafter such applicable rate
becomes less than the Highest Lawful Rate, the rate of interest payable on the Borrower’s
obligations shall remain at the Highest Lawful Rate until the Lenders have received the amount of
interest which such Lenders would have received during such period on the Borrower’s obligations
had the rate of interest not been limited to the Highest Lawful Rate during such period.



10.25 Additional Advances. All fees, charges, expenses, costs, expenditures,
obligations, liabilities, losses, penalties and damages incurred or suffered by the Agent and for
which Borrower is bound to indemnify or reimburse the Agent under this Agreement (other than those
which may be paid without demand therefor, by the Agent initiated Advances pursuant to Section
2.1) may, at the option of the Agent, be paid by Agent-initiated Advances pursuant to
Section 2.1 if such amounts remain unpaid for a period of ten (10) days after the Agent has
made demand therefor.



10.26 Loan Agreement Controls. If there are any conflicts or inconsistencies among
this Agreement and any of the other Financing Agreements, the provisions of this Agreement shall
prevail and control.



10.27 Obligations Several. The obligations of each Lender under each Financing
Agreement to which it is a party are several, and no Lender shall be responsible for any obligation
or Commitment of any other Lender under any Financing Agreement to which it is a party. Nothing
contained in any Financing Agreement to which it is a party, and no action taken by any Lender
pursuant thereto, shall be deemed to constitute the Lenders to be a partnership, an association, a
joint venture, or any other kind of entity.



10.28 Pro Rata Treatment. All Loans under, and all payments and other amounts
received in connection with, this Agreement (including, without limitation, amounts received as a
result of the exercise by any Lender of any right of set-off), shall be effectively shared by the
Lenders ratably in accordance with the respective Pro Rata Percentages of the Lenders. If any
Lender shall obtain any payment (whether voluntary, involuntary, through the exercise of any right
of set-off, or otherwise) on account of the principal of, or interest on, or fees in respect of,
any amount due to such Lender under this Agreement (other than pursuant to Section 2.3(b),
2.5(a), 10.20, 10.21 or 10.22 or the normal and customary processing fees charged by an Issuer
in connection with the Issuance of or drawings under a Letter) in excess of its Pro Rata Percentage
of payments on account of similar amounts due to all the Lenders, such Lender shall purchase from
the other Lenders such participation in such amounts due to them as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of them; provided
however, that if all or any portion of such excess payment is thereafter recovered from
such purchasing Lender, such purchase from each Lender shall be rescinded and such Lender shall
repay to the purchasing Lender the purchase price to the extent of such recovery together with an
amount equal to such Lender’s ratable share (according to the proportion of (a) the amount of such
Lender’s required repayment to (b) the total amount so recovered from the purchasing Lender) of any
interest or other amount paid or payable by the purchasing Lender in respect of the total amount so
recovered. Disproportionate payments of interest shall be shared by the purchase of separate
participation in unpaid interest obligations, disproportionate payments of fees shall be shared by
the purchase of separate participation in unpaid fee obligations, and disproportionate payments of
principal shall be shared by the purchase of separate participation in unpaid principal
obligations. Borrower agrees that any Lender so purchasing a participation from another Lender
pursuant to this Section 10.28 may, to the fullest extent permitted by law, exercise all
its rights of payment (including the right of set-off) with respect to such participation as fully
as if such Lender were the direct creditor of Borrower in the amount of such participation.
Notwithstanding the foregoing, a Lender may receive and retain an amount in excess of its Pro Rata
Percentage to the extent, but only to the extent, that such excess results from such Lender’s
Highest Lawful Rate exceeding another Lender’s Highest Lawful Rate.



10.29 Confidentiality. Each of the Agent and the Lenders agrees that it will use its
best efforts to keep confidential, in accordance with its customary procedures for handling
confidential information and in accordance with safe and sound banking practices any proprietary
information of Borrower, designated in writing by Borrower, as being proprietary and confidential;
provided that the Agent or any Lender may disclose any such information (a) to enable it to
comply with any Governmental Requirement applicable to it, (b) in connection with the defense of
any litigation or other proceeding brought against it arising out of the transactions contemplated
by this Agreement and the other Financing Agreements, (c) in connection with the supervision and
enforcement of the rights and remedies of the Agent and Lenders under any Financing Agreement and
(d) as set forth in Section 10.23. Notwithstanding anything to the contrary in this
Agreement, each Lender (or its representatives, agents or employees) may (i) consult any tax
advisor regarding the tax treatment and tax structure of the transaction contemplated by this
Agreement and (ii) may at any time disclose to any person, without limitation of any kind, the tax
treatment and tax structure of such transaction and all materials of any kind (including opinions
or other tax analyses) that are provided relating to such tax treatment or tax structure. The
preceding sentence is intended to satisfy the requirements for the transaction contemplated herein
to avoid classification as a “confidential transaction” for purposes of Treasury Regulations
Section 1.6011-4(b)(3) and shall be interpreted consistent with such intent. This authorization is
not intended to permit disclosure of any information that is unrelated to the tax treatment or tax
structure of any transaction contemplated hereby, including, without limitation, any pricing or
financial information, except in each case to the extent such information is related to the tax
treatment or tax structure of any such transaction.



10.30 Independence of Covenants. All covenants under this Agreement and the other
Financing Agreements shall be given independent effect so that if a particular action or condition
is not permitted by any of such covenants, the fact that it would be permitted by an exception to,
or be otherwise within the limitations of, another covenant shall not avoid the occurrence of a
Default or a Matured Default if such action is taken or condition exists.



10.31 Amendments and Waivers.



(a) Except as provided in the following Subsections 10.31(b), (c) and (e), and except
that the definition of Rail Subsidiary may be amended with the prior consent of the Agent, any
term, covenant, agreement or condition of this Agreement or the other Financing Agreements may be
amended only by a written amendment executed by Borrower, the Required Lenders and, if the rights
or duties of the Agent or Issuer are affected thereby, the Agent and such Issuer, respectively, or
compliance therewith only may be waived (either generally or in a particular instance and either
retroactively or prospectively), if Borrower shall have obtained the consent in writing of the
Required Lenders and, if the rights or duties of the Agent are affected thereby, the Agent,
provided however, that without the consent in writing of all Lenders, no such
amendment or waiver shall (i) change the amount or postpone the date of payment of any scheduled
payment or required payment of principal of the Loans or LC Obligations or reduce the rate or
extend the time of payment of interest on the Loans, or reduce the amount of principal thereof, or
modify any of the provisions with respect to the payment or prepayment thereof, (ii) give to any
Loan any preference over any other Loans, (iii) amend the definition of Required Lenders, (iv)
alter, modify or amend the provisions of this Subsection 10.31(a), of Subsections
10.31(c), (d) and (e) or of Section 10.28, (v) reduce, or extend the payment due date
of, the fees required under Section 2.5, (vi) alter, modify or amend the provisions of
Sections 9.1 or 9.2 of this Agreement, (vii) alter, modify or amend any Lender’s right
hereunder to consent to any action, make any request or give any notice, or (viii) release any
Guarantor of any of the Liabilities.



(b) Prior to the Maturity Date and provided that (i) a Default or a Matured Default has not
occurred and is continuing, and (ii) Borrower has not previously elected to decrease or terminate
either the Line of Credit A Loan Commitments or the Line of Credit B Loan Commitments pursuant to
Section 2.3(c), this Agreement may be amended from time to time to increase the total amount of the
Line of Credit A Loan Commitments and/or the Line of Credit B Loan Commitments to a combined amount
not exceeding $900,000,000 in the aggregate, by one or more written amendments executed by
Borrower, the Agent and one or more Lenders (together with new Notes and other Financing Agreements
as may be reasonably required by the Agent). Subject to the following Section 10.31(c),
any such increase shall be allocated to new or existing Lenders at the discretion of the Agent and
Borrower.



(c) Without the consent in writing of the affected Lender, no amendment or waiver shall
increase the amount of or the Pro Rata Percentage of any Commitment of such Lender (but the amount
of or the Pro Rata Percentage of any Commitment of such Lender may be decreased without the consent
of such Lender).



(d) Any amendment or waiver made in accordance with this Section 10.31 shall apply
equally to all Lenders and all the holders of the Notes and/or LC Obligations and shall be binding
upon them, upon each future holder of any Note or LC Obligation and upon Borrower, whether or not
such Note or Letter shall have been marked to indicate such amendment or waiver. No such amendment
or waiver shall extend to or affect any obligation not expressly amended or waived.



(e) Notwithstanding the foregoing, without the consent in writing of the Lenders holding in
the aggregate at least fifty one percent (51%) of the aggregate amount of the Lenders’ Line of
Credit A Loan Commitments (which percentage shall be applicable even in the event that the
commitments of the Lenders to make Line of Credit A Advances have been suspended or terminated in
accordance with the terms of this Agreement), no amendment or waiver shall be made that
disproportionately alters the rights or obligations of only the holders of the Lenders’ Line of
Credit A Loan Commitments. Without the consent in writing of the Lenders holding in the aggregate
at least fifty one percent (51%) of the aggregate amount of the Lenders’ Line of Credit B Loan
Commitments (which percentage shall be applicable even in the event that the commitments of the
Lenders to make Line of Credit B Advances have been suspended or terminated in accordance with the
terms of this Agreement), no amendment or waiver shall be made that disproportionately alters the
rights or obligations of only the holders of the Lenders’ Line of Credit B Loan Commitments.



(f) Notwithstanding the foregoing, that without the consent in writing of the Lenders holding
in the aggregate at least seventy five percent (75%) of the aggregate amount of all of the Lenders’
Commitments (which percentage shall be applicable even in the event that the commitments of the
Lenders to make Advances have been suspended or terminated in accordance with the terms of this
Agreement) no such amendment or waiver shall (i) amend the definition of Asset Coverage Ratio or
the definitions of other terms as used therein, or (ii) amend Subsection (e) of Section
7.4 (setting forth the maximum allowed Asset Coverage Ratio).



10.32 Replacement of a Lender. If a Lender (other than the Agent as a Lender) becomes
a Replacement Candidate (as defined below), Borrower shall have the right to require such Lender to
assign to another lender or other institution selected by Borrower and reasonably satisfactory to
the Agent (which may be one or more of the Lenders) the Commitments and the Notes held by such
Lender pursuant to the terms of an appropriately completed Assignment and Acceptance in accordance
with Section 10.23; provided, that neither the Agent nor any Lender shall have any
obligation to Borrower to find any such lender or other institution and in order for Borrower to
replace a Lender, Borrower must require such replacement within three (3) months of the date the
Lender became a Replacement Candidate. Each Lender (other than the Agent as a Lender) agrees to
its replacement at the option of Borrower pursuant to this Section 10.32; provided,
that the assignee selected by Borrower shall purchase such Lender’s interest in the Loans owed to
such Lender for cash in an aggregate amount equal to the aggregate unpaid principal thereof, all
unpaid interest accrued thereon, all unpaid fees accrued for the account of such Lender and all
other amounts then owing to such Lender hereunder or under any other Financing Agreement. A Lender
will become a “Replacement Candidate” if (i) it has made a demand under Sections 10.20,
10.21 or 10.22, (ii) it has defaulted on any obligation under this Agreement or
(iii) it has become insolvent and its assets become subject to a receiver, liquidator, trustee,
custodian, or other officer having similar powers. The rights of Borrower under this Section
10.32 shall be in addition to any other rights or remedies Borrower may have at law or in
equity as a result of the events described in the definition of “Replacement Candidate”.



10.33 Representations by the Lenders. Each Lender represents that it is the present
intention of such Lender, as of the date of its acquisition of the Notes, to acquire the Notes for
its account or for the account of its affiliates, and not with a view to the distribution or sale
thereof that would be in violation of any applicable laws, and, subject to any applicable laws, the
disposition of such Lender’s property shall at all times be within its control. The Notes have not
been registered under the Securities Act of 1933, as amended (the “Securities Act"), and may not be
transferred, sold or otherwise disposed of except (a) in a registered offering under the
Securities Act; (b) pursuant to an exemption from the registration provisions of the Securities
Act; or (c) if the Securities Act shall not apply to the Notes or the transactions contemplated by
the Financing Agreements. Nothing in this Section 10.33 shall affect the characterization
of the Loans and the transactions contemplated hereunder as commercial lending transactions.



10.34 Counterparts and Facsimile Signatures. This Agreement, any other Financing
Agreement and any subsequent amendment to any of them may be executed in several counterparts, each
of which shall be construed together as one original. Facsimile signatures on this Agreement, any
other Financing Agreement and any subsequent amendment to any of them shall be considered as
original signatures.



10.35 Set-off. In the event that a Matured Default has occurred and is continuing,
Borrower gives and confirms to each Lender a right of set-off of all moneys, securities and other
property of Borrower (whether special, general or limited) and the proceeds thereof, at any time
delivered to remain with or in transit in any manner to such Lender, its correspondent or its
agents from or for Borrower, whether for safekeeping, custody, pledge, transmission, collection or
otherwise or coming into possession of such Lender in any way, and also, any balance of any deposit
accounts and credits of Borrower with, and any and all claims of security for the payment of the
Liabilities owed by Borrower to such Lender, contracted with or acquired by the Lender, whether
such liabilities and obligations be joint, several, absolute, contingent, secured, unsecured,
matured or unmatured, and Borrower authorizes such Lender at any time or times, without prior
notice, to apply such money, securities, other property, proceeds, balances, credits of claims,
or any part of the foregoing, to such liabilities in such amounts as it may select, whether such
Liabilities be contingent, unmatured or otherwise, and whether any collateral security therefor is
deemed adequate or not. The rights described herein shall be in addition to any collateral security
described in any separate agreement executed by Borrower.



10.36 Binding Effect. This Agreement and all of the other Financing Agreements set
forth the legal, valid and binding obligations of Borrower, the Agent and the Lenders and are
enforceable against Borrower in accordance with their respective terms. Should more than one
Person be a Borrower under this Agreement or any Note, the obligations of each such Person shall be
joint and several. The Lenders may settle, release, compromise, collect or otherwise liquidate the
obligations of any Borrower, any Guarantor of such obligations, and any security or collateral for
such obligations or for any such guaranty, in any manner, without affecting or impairing the
obligations of any Borrower. This Agreement amends and restates in its entirety the Prior
Agreement, and is made in substitution of the Prior Agreement and not in satisfaction thereof.
This Agreement and the issuance of new Notes in accordance herewith shall not be deemed to
constitute a novation.



10.37 FINAL AGREEMENT. THIS WRITTEN AGREEMENT AND THE OTHER FINANCING AGREEMENTS
REPRESENT THE FINAL AGREEMENT BETWEEN THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR,
CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL
AGREEMENTS BETWEEN THE PARTIES.



[Signature Pages Follow]



1



IN WITNESS WHEREOF, this Agreement has been duly executed as of the day and year first above
written.



THE ANDERSONS, INC.



By /s/Gary Smith



Its Vice President, Finance and Treasurer



U.S. BANK NATIONAL ASSOCIATION



By /s/Brian Moeller



Its Senior Vice President




COBANK, ACB



By /s/Alan Schuler



Its Vice President



FIFTH THIRD BANK



By /s/David Gerken



Its Vice President



BRANCH BANKING AND TRUST




COMPANY



By /s/ Robert Searson



Its Senior Vice President



WELLS FARGO BANK, NATIONAL




ASSOCIATION



By /s/Ed Cooper



Its Senior Vice President




THE HUNTINGTON NATIONAL


BANK



By /s/Jeffrey Canfield



Its Assistant Vice President




	 	 	{Signature Page to Second Amended and Restated Loan Agreement — The Andersons, Inc.}




2










GREENSTONE FARM CREDIT


SERVICES, ACA / FLCA



By /s/Curt Flammini




	 	 	Its Vice President






AGFIRST FARM CREDIT BANK



By /s/Bruce B. Fortner



Its Vice President




FARM CREDIT BANK OF TEXAS



By /s/Luis M.H. Requejo



Its Director Capital Markets



FCS FINANCIAL, PCA



By /s/Lee Fuchs



Its Vice President



THE BANK OF TOKYO-MITSUBISHI




UFJ, LTD.



By /s/Chan K. Park



Its Senior Vice President & Manager



COMERICA BANK



By /s/Timothy O’Rourke



Its Vice President




AGSTAR FINANCIAL SERVICES, PCA



By /s/Troy Mostaert



Its Vice President




	 	 	BANK OF OKLAHOMA, N.A.





By /s/Christopher Porter



Its Vice President



{Signature Page to Second Amended and Restated Loan Agreement — The Andersons, Inc.}



3




BANK OF THE WEST



By /s/Charles Greenway



Its Vice President



{Signature Page to Second Amended and Restated Loan Agreement — The Andersons, Inc.}



4



Schedule A to Second Amended and Restated Loan Agreement

Lenders’ Commitments




	 	 	 	 	 	 	 	 	 
	Line of Credit A Loan Commitments	 	 	 	 
	Name of Lender
	 	Pro Rata Percentage	 	Maximum $Amount
	 
	 	 	 	 	 	 	 	 
	U.S. Bank National Association
	 		20.347826086955	%	 	$	99,704,347.82	
	CoBank, ACB
	 		15.652173913044	%	 	$	76,695,652.17	
	Fifth Third Bank
	 		8.695652173913	%	 	$	42,608,695.65	
	Branch Banking and Trust Company
	 		8.695652173913	%	 	$	42,608,695.65	
	Wells Fargo Bank, National Assn.
	 		8.695652173913	%	 	$	42,608,695.65	
	Bank of the West
	 		3.652173913043	%	 	$	17,895,652.17	
	The Huntington National Bank
	 		8.695652173913	%	 	$	42,608,695.65	
	GreenStone FCS
	 		1.739130434783	%	 	$	8,521,739.13	
	AgFirst Farm Credit Bank
	 		2.086956521739	%	 	$	10,226,086.96	
	Farm Credit Bank of Texas
	 		4.347826086957	%	 	$	21,304,347.83	
	FCS Financial, PCA
	 		2.608695652174	%	 	$	12,782,608.70	
	Bank of Tokyo-Mitsubishi UFJ, Ltd.
	 		4.347826086957	%	 	$	21,304,347.83	
	AgStar Financial Services, PCA
	 		3.478260869565	%	 	$	17,043,478.26	
	Comerica Bank
	 		4.347826086957	%	 	$	21,304,347.83	
	Bank of Oklahoma, N.A.
	 		2.608695652174	%	 	$	12,782,608.70	
	 
	 	 	 	 	 	 	 	 
	TOTAL:
	 		100	%	 	$	490,000,000.00	
	Line of Credit B Loan Commitments
	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	Name of Lender
	 	Pro Rata Percentage	 	Maximum $Amount
	 
	 	 	 	 	 	 	 	 
	U.S. Bank National Association
	 		20.347826086955	%	 	$	17,295,652.18	
	CoBank, ACB
	 		15.652173913044	%	 	$	13,304,347.83	
	Fifth Third Bank
	 		8.695652173913	%	 	$	7,391,304.35	
	Branch Banking and Trust Company
	 		8.695652173913	%	 	$	7,391,304.35	
	Wells Fargo Bank, National Assn.
	 		8.695652173913	%	 	$	7,391,304.35	
	Bank of the West
	 		3.652173913043	%	 	$	3,104,347.83	
	The Huntington National Bank
	 		8.695652173913	%	 	$	7,391,304.35	
	GreenStone FCS
	 		1.739130434783	%	 	$	1,478,260.87	
	AgFirst Farm Credit Bank
	 		2.086956521739	%	 	$	1,773,913.04	
	Farm Credit Bank of Texas
	 		4.347826086957	%	 	$	3,695,652.17	
	FCS Financial, PCA
	 		2.608695652174	%	 	$	2,217,391.30	
	Bank of Tokyo-Mitsubishi UFJ, Ltd.
	 		4.347826086957	%	 	$	3,695,652.17	
	AgStar Financial Services, PCA
	 		3.478260869565	%	 	$	2,956,521.74	
	Comerica Bank
	 		4.347826086957	%	 	$	3,695,652.17	
	Bank of Oklahoma, N.A.
	 		2.608695652174	%	 	$	2,217,391.30	
	 
	 	 	 	 	 	 	 	 
	TOTAL:
	 		100	%	 	$	85,000,000.00	






5




Schedule B to

Second Amended and Restated Loan Agreement




Form of Assignment and Acceptance




Attached

Exhibit 1A to

Second Amended and Restated Loan Agreement




Rail Subsidiaries




TOP CAT Holding, Co., a Delaware corporation


Cap Acquire, LLC, Cap Acquire Canada, ULC


Cap Acquire Mexico S. de R.L. de C.V.


NARCAT LLC, CARCAT, ULC


NARCAT Mexico S. de R.L. de C.V.


The Andersons Rail Operating I LLC, a Delaware limited liability company



6



Exhibit 2A to

Second Amended and Restated Loan Agreement




Form Line of Credit A Note




Attached





7






Exhibit 2B to

Second Amended and Restated Loan Agreement




Form Line of Credit B Note




Attached 






8






Exhibit 4A to

Second Amended and Restated Loan Agreement




List of Closing Documents





	1.	 	This Second Amended and Restated Loan Agreement





2. Notes



3. Guaranty




	4.	 	Secretary’s Certificate as to Directors’ Resolutions and Partners’ Resolutions, as the case
may be, for the Borrower and each Guarantor






	5.	 	Certificates of Good Standing or Existence, Articles of Incorporation, Code of Regulations
and Partnership Agreements, as the case may be, for the Borrower and each Guarantor





6. Opinion of Legal Counsel



9



Exhibit 5A to

Second Amended and Restated Loan Agreement




Form of Guaranty




Attached






10






Exhibit 6A to

Loan and Security Agreement




Disclosure Schedule




	 	 	 
	Part 1:	 	Judgments, Litigation, Claims and Proceedings
	Part 2:

	 	Defaults and Disputes
	
 
	 	 
	Part 3:

	 	Security Interests, Liens, Claims and Encumbrances
	
 
	 	 
	Part 4:

	 	Tax Liability Claims
	
 
	 	 
	Part 5:

	 	Other Indebtedness
	
 
	 	 
	Part 6:

	 	Affiliates
	
 
	 	 
	Part 7:

	 	Environmental Matters
	
 
	 	 






11




Exhibit 7A to

Second Amended and Restated Loan Agreement




Compliance Certificate




Attached






12






SECOND AMENDED AND RESTATED LOAN AGREEMENT




BETWEEN




U.S. BANK NATIONAL ASSOCIATION

Lead Arranger and Agent




COBANK, ACB

Syndication Agent




FIFTH THIRD BANK

BRANCH BANKING AND TRUST COMPANY

THE HUNTINGTON NATIONAL BANK

Documentation Agents




AND




THE ANDERSONS, INC.

 




Dated as of April 30, 2009





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