EX-10.15






THE ANDERSONS RAIL OPERATING I LLC,




and




THE ANDERSONS, INC.,




as the Manager




______________________________




Management Agreement




______________________________




Dated as of December 29, 2005




1




Management Agreement, dated as of December 29, 2005 (this “Agreement”), by and
between THE ANDERSONS RAIL OPERATING I LLC, a Delaware limited liability company
(“Company”), and THE ANDERSONS, INC. (“The Andersons”), an Ohio corporation, as the
manager (the “Manager”), for the benefit of the Agent and the Lenders (as defined herein).



Preliminary Statement




The Company is entering into a Term Loan Agreement, dated as of December 29, 2005 (as amended
or supplemented from time to time, the “Loan Agreement”), among the Company, the financial
institutions or entities from time to time parties thereto (the “Lenders”) and Siemens Financial
Services, Inc, as agent for the Lenders (the “Agent”). The obligations of the Company under the
Loan Agreement and the other Loan Documents (as defined in the Loan Agreement) will be secured by
the Collateral described in the Security Agreement, dated as of December 29, 2005 (the “Security
Agreement”) made by the Company in favor of the Agent and the Lenders.



It is a condition precedent to the Loan Agreement that, on or prior to the Closing Date (as
defined in the Loan Agreement), the Company enter into this Agreement with the Manager and to
provide for the management of the Railcars (as defined herein). In order to further secure
Company’s obligations under the Loan Agreement and the other Loan Documents (as defined herein,
Company is granting to the Agent and the Lenders a security interest in, among other things, the
Company’s rights derived under this Agreement, and the Manager agrees that all covenants and
agreements made by the Manager herein with respect to the Railcars and Leases (as defined herein)
shall also be for the benefit and security of the Agent and the Lenders. For its services
hereunder, the Manager will receive the Manager Fee as set forth in Section 2.05.



On the date hereof, the Company and The Andersons (the “Servicer”) are entering into a
servicing agreement (the “Servicing Agreement”) for the purpose of engaging the Servicer to receive
and apply, as required under the Loan Documents, all collections received with respect to the
Railcars and Leases and to perform Equipment Lessee (as defined herein) monitoring, collection and
enforcement activities, to perform record keeping and to prepare servicer reports, among other
things, all as described in the Servicing Agreement.



The Manager is engaged in the business of owning, leasing, managing and servicing railcars for
itself and for others, and the Company desires to retain the Manager, on the terms and conditions
set forth in this Agreement, to perform operating, maintenance, insurance and remarketing services
on behalf of the Company in respect of the Railcars and the Leases.



Article I




Definitions




Section 1.01. Defined Terms. Subject to Section 1.02, except as otherwise specified or as the
context may otherwise require, the following terms have the respective meanings set forth below for
all purposes of this Agreement, and the definitions of such terms are equally applicable both to
the singular and plural forms of such terms and to the masculine, feminine and neuter genders of
such terms:



“AAR” shall have the meaning set forth in the Loan Agreement.



“Action” shall mean any action, claim, suit, litigation, arbitration or governmental
investigation.



“Advance Rate” shall mean 85% of the Fair Market Value of any Railcar.



“Affiliate” shall have the meaning set forth in the Loan Agreement.



“Agent” shall have the meaning set forth in the preamble to this Agreement



“Agreement” shall mean this Management Agreement, as amended, restated or supplemented from
time to time as permitted hereby.



“Board of Directors” shall mean the Board of Directors of the Manager or any duly authorized
committee of such Board.



“Business Day” shall have the meaning set forth in the Loan Agreement.



“Canadian Registry” shall mean the Office of the Registrar General of Canada, which maintains
the database pursuant to Section 105 of the Canada Transportation Act.



“Car Mark Agreement” shall mean the Car Mark Agreement, dated December 29, 2005, between The
Andersons and the Company.



“Casualty Loss” shall have the meaning set forth in the Loan Agreement.



“Change of Control” shall mean (a) any Person or two or more Persons acting in concert, of
beneficial ownership (within the meaning of Rule 13d-3 of the Securities and Exchange Commission
under the Securities Exchange Act of 1934) of 50% or more of the outstanding shares of voting stock
of The Andersons or (ii) the stock of The Andersons shall cease to be publicly traded.



“Closing Date” shall have the meaning set forth in the Loan Agreement.



“Collateral” shall have the meaning set forth in the Security Agreement.



“Collection Account” shall have the meaning set forth in the Security Agreement.



“Company” shall have the meaning set forth in the preamble to this Agreement.



“Concentration Limits” shall have the meaning set forth in the Loan Agreement.



“Continued Errors” shall have the meaning set forth in Section 6.05(d).



“DOT” shall mean the United States Department of Transportation or any successor thereof.



“Eligible Railcar” shall have the meaning set forth in the Loan Agreement.



“Environmental Law” shall have the meaning set forth in the Loan Agreement.



“Equipment Lease Proceeds” shall have the meaning set forth in the Loan Agreement.



“Equipment Lessee” shall have the meaning set forth in the Loan Agreement.



“ERISA” shall have the meaning set forth in the Loan Agreement.



“Errors” shall have the meaning set forth in Section 6.05(d).



“Event of Default” shall have the meaning set forth in the Loan Agreement.



“Fair Market Value” shall have the meaning set forth in the Security Agreement.



“FRA” shall mean the Federal Railroad Administration or any successor thereto.



“GAAP” shall have the meaning set forth in the Loan Agreement.



“Governmental Authority” shall have the meaning set forth in the Loan Agreement.



“Hazardous Commodities” shall have the meaning set forth in the Loan Agreement.



“Indemnified Parties” shall have the meaning set forth in Section 5.04.



“Initial Manager” shall mean The Andersons.



“Interchange Rules” shall mean the Interchange Rules or supplements thereto of the Mechanical
Division of the AAR as the same may be in effect from time to time.



“Knowledge of the Manager” shall mean the actual knowledge, after due inquiry, of the officers
of the Manager or any Affiliate of the Manager responsible for matters relating to the Manager’s
performance of its obligations hereunder.



“Law” shall mean any law, statute, ordinance, rule, regulation, judgment, injunction, order,
decree or code adopted, enacted or promulgated by any Governmental Authority or the requirements of
the AAR, any self-regulatory agency or any entity of a nature similar to that of any of the
foregoing.



“Lease” shall mean an “Equipment Lease” as defined in the Loan Agreement.



“Lease File” and “Lease Files” shall have the meanings set forth in the Servicing Agreement.



“Lease and Railcar Schedule” shall be in substantially the same form as Schedule A to the
Security Agreement, as such schedule is amended, supplemented or otherwise modified from time to
time in accordance with this Agreement and/or the Security Agreement.



“Lenders” shall have the meaning set forth in the Preliminary Statement of this Agreement.



“Lessor” shall mean the lessor under each related Lease, or a successor or assignee of such
lessor.



“Liens” shall have the meaning set forth in the Loan Agreement.



“Loans” shall have the meaning set forth in the Loan Agreement.



“Loan Documents” shall have the meaning set forth in the Loan Agreement.



“Lockbox Account” shall have the meaning set forth in the Servicing Agreement.



“Lockbox Agreement” shall have the meaning set forth in the Loan Agreement.



“Loan Agreement” shall have the meaning set forth in the Preliminary Statement of this
Agreement.



“Maintenance Expense Reimbursement Request” shall have the meaning set forth in Section
2.06(b).



“Manager” shall have the meaning set forth in the preamble to this Agreement, or any Successor
Manager appointed pursuant to Section 6.01.



“Manager Events of Termination” shall mean each of the occurrences or circumstances enumerated
in Section 6.01.



“Manager Fee” shall mean a monthly fee equal to $37.50 per railcar per month (whether or not
such Railcar is then subject to a Lease.



“Manager Standard” shall have the meaning set forth in Section 2.01(b).



“Manager Termination Notice” shall have the meaning set forth in Section 6.01(b).



“Material Adverse Effect” shall have the meaning set forth in the Loan Agreement.



“Monthly Operating Expense Report” shall have the meaning set forth in Section 3.01.



“Note” shall have the meaning set forth in the Loan Agreement.



“Officer’s Certificate” shall mean a certificate signed by the Chairman of the Board, the Vice
Chairman of the Board, the President, a Vice President, the Treasurer or the Secretary of the
Manager.



“Operating Expenses” shall have the meaning set forth in Section 2.06(a).



“Opinion of Counsel” shall mean a written opinion of counsel who, unless otherwise specified,
may be in-house counsel employed full time by the Person (or an affiliate of such Person) required
to deliver the opinion.



“Optional Modification” shall have the meaning set forth in Section 2.04(b).



“Payment Date” shall have the meaning set forth in the Loan Agreement.



“Permitted Liens” shall have the meaning set forth in the Loan Agreement.



“Person” shall have the meaning set forth in the Loan Agreement.



“Predecessor Manager Work Product” shall have the meaning set forth in Section 6.05(d).



“Prime Rate” shall have the meaning set forth in the Loan Agreement.



“Purchase” shall mean a purchase by the Manager of a Railcar and any related Lease pursuant to
Section 4.04.



“Purchase Price” shall have the meaning set forth in Section 4.04(c).



“Quarterly Manager Report” shall have the meaning set forth in Section 3.01.



“Railcar” or “Railcars” shall mean “Equipment” or “Items of Equipment” as defined in the
Security Agreement.



“Replacement Lease” shall have the meaning set forth in the Security Agreement.



“Replacement Unit” shall have the meaning set forth in the Security Agreement.



“Reported Company” shall mean The Andersons, if the Manager is The Andersons, or for any
Successor Manager appointed pursuant to this Agreement, such Successor Manager and its parent and
its Affiliates on a consolidated basis.



“Reported Company’s Financial Statements” shall mean the Reported Company’ audited,
consolidated financial statements (including consolidated balance sheets, statements of earnings,
retained earnings and cash flows) including all notes to the audited financial statements and
auditors opinion regarding the audited financial statements, all prepared in accordance with
generally accepted accounting principles.



“Required Lenders” shall have the meaning set forth in the Loan Agreement.



“Required Modification” shall have the meaning set forth in Section 2.04(a).



“Responsible Officer” shall have the meaning set forth in the Loan Agreement.



“Sale Agreement” shall mean the Sale Agreement, dated as of December 29, 2005, between The
Andersons, as seller, and the Company, as buyer.



“Seller” shall mean The Andersons.



“Security Agreement” shall have the meaning set forth in the preamble to this Agreement.



“Servicer” shall have the meaning set forth in the preamble to the Servicing Agreement, or any
Successor Servicer appointed pursuant to Section 6.01 of the Servicing Agreement.



“Servicing Agreement” shall have the meaning set forth in the Preliminary Statement of this
Agreement.



“Servicer Event of Termination” shall have the meaning set forth in the Servicing Agreement.



“Solvent” shall have the meaning set forth in the Loan Agreement.



“STB” shall have the meaning set forth in the Loan Agreement.



“Successor Manager” shall have the meaning set forth in Section 6.01(b).



“Tangible Net Worth” shall mean with respect to any Person as of any particular date, (a)
consolidated net worth, (b) minus the consolidated book value of intangible assets, (c) plus the
consolidated book amount of long term deferred income.



“The Andersons” shall mean The Andersons, Inc., an Ohio corporation.



“UCC” shall mean Article 9 of the Uniform Commercial Code as in effect in an applicable
jurisdiction within the United States.



“UMLER” shall have the meaning set forth in the Loan Agreement.



Section 1.02. Terms Defined in the Loan Agreement or Servicing Agreement. For the purposes of
this Agreement, capitalized terms used but not otherwise defined herein shall have the respective
meanings assigned to such terms in the Loan Agreement or, if not defined therein, in the Servicing
Agreement, as applicable.



Article II




Management of Railcars




Section 2.01. The Manager to Act as Manager; Standard of Care; Covenants Concerning Railcars
and Leases. (a) The Company hereby retains The Andersons as Manager hereunder, as an independent
contractor for the purpose of undertaking and performing the services described in this Agreement,
and The Andersons hereby agrees to act as Manager on the terms and conditions set forth herein.



(b) All of the functions, services, duties and obligations of the Manager under this Agreement
shall be performed by the Manager at a level of care and diligence consistent with customary
commercial practices as would be used by a prudent Person in the railcar leasing and management
industry and the level of care and diligence utilized by the Manager in its business and in the
management of the Manager’s own fleet of railcars, if any, in order for the Company to be able to
perform its obligations under the Leases and the other applicable Transaction Documents (the
“Manager Standard”). The Manager agrees that management of the Railcars shall be carried out in
accordance with the Manager Standard.



(c) The Manager shall not be required to threaten or commence any legal or other proceedings
before any court or Governmental Authority or nongovernmental organization in connection with its
performance or actions hereunder if, in the Manager’s reasonable judgment consistent with the
Manager Standard, the potential expense or risk associated with such exercise or action is such
that the Manager would not undertake such exercise or action with respect to other railcars owned,
leased or managed by the Manager.



(d) The Manager shall not create or permit to exist any Lien on any Railcar or Lease other
than a Permitted Lien.



(e) The Manager shall, in connection with the performance of the services provided for herein,
comply in all material respects with all Laws applicable to the Manager, the Company, the Railcars
and the Leases.



(f) The duties and obligations of the Manager will be limited to those expressly set forth in
this Agreement, and the Manager will not have any fiduciary or other implied duties or obligations,
except as provided herein.



(g) The Manager shall not take any action, without the consent of the Agent which would
release any Person from any of its covenants or obligations under any of the Leases or under any
other instrument included in the Collateral, which action or release would materially and adversely
affect the interests of the Agent in any such Lease or which would result in the amendment,
hypothecation, subordination, termination, set off or discharge of, or impair the validity or
effectiveness of, any of the Leases or any such instrument, except as expressly provided herein and
therein.



(h) The parties hereto acknowledge that the Company shall retain title to, and ownership and
exclusive control of Collateral (subject to those liens which arise pursuant to the Loan
Agreement). Except as expressly permitted hereunder, the Manager will not acquire any title to,
security interest in, or other rights of any kind in or to the Railcars or the Leases. The Manager
agrees not to file any Lien, exercise any right of setoff against, or attach or assert any claim
in, any of the Railcars or the Leases, unless authorized pursuant to a judicial or administrative
proceeding or a court order or on behalf of the Company or the Agent in accordance with this
Agreement or the Loan Agreement.



(i) The Manager shall maintain, at its own expense, an insurance policy, with coverage
appropriate and customary in the industry with responsible companies on all officers or employees
of the Manager, or other persons authorized by the Manager to act in any capacity with regard to
the Railcars and the Leases to handle funds, money, documents and papers relating to the Railcars
and the Leases. Any such insurance policy shall protect and insure the Manager against losses,
including forgery, theft, embezzlement, and fraudulent acts of such persons and shall be maintained
in a form and amount that would meet the requirements of a prudent institutional Manager. The
requirement to maintain such insurance policy shall not diminish or relieve the Manager from its
duties and obligations as set forth in this Agreement. Any such insurance policy shall not be
cancelled or modified in a materially adverse manner without ten days’ prior written notice to the
Agent. The Manager shall promptly, but in any event within five Business Days after receipt,
notify the Agent upon receipt from the surety of any termination or cancellation notice or any
other notice of a material change to the terms of such insurance policy.



(j) The Successor Manager may perform any duties hereunder either directly or through agents
or attorneys, and the Successor Manager shall not be responsible for any misconduct or negligence
on the part of, or for the supervision of, any such agent or attorney appointed by it with due care
hereunder.



(k) Notwithstanding anything to the contrary in the Loan Documents, the Manager shall in its
leasing efforts use reasonable efforts, in compliance with the Manager Standard, to maintain
compliance by the portfolio of Railcars and associated Leases with the Concentration Limits (such
as, all other factors being equal, giving precedence to a Replacement Lease that would maintain
compliance with the Concentration Limits over a Replacement Lease that would not maintain
compliance with the Concentration Limits).



Section 2.02. Authority of Manager; Delegation of Management. (a) Until the termination of
this Agreement in accordance with Section 6.01, the Manager, on behalf of the Company, shall have
full authority and power to manage the Railcars and the Leases in all respects, including, but not
limited to, the following authority and powers, in accordance with the Manager Standard:




(i) To contract for the maintenance, storage and release of the Railcars and to
authorize any repairs or maintenance service which, in the exercise of the Manager’s
business judgment, are necessary or appropriate.




(ii) To enter into Replacement Leases in the name of the Company.




(iii) To settle any claim pertaining to the Railcars or the deployment or use thereof.




(iv) To do any and all other things necessary or appropriate to fulfill the duties set
forth in Section 2.03 below.



(b) Notwithstanding the foregoing, the authority granted to the Manager under this Section
2.02 shall not cover any matters (i) which the Company, as owner of the Railcars in question, shall
not be entitled to perform under the Loan Documents or any other agreement to which the Company
shall be bound, or (ii) as to which the Servicer shall have been granted authority under the
Servicing Agreement.



(c) The Manager may enter into management agreements with one or more submanagers, with prior
written notice to the Company and the Agent, to perform all or a portion of the management
functions on behalf of the Manager; provided, however, that the Manager will remain obligated and
be liable to the Agent and the Company for managing the Railcars in accordance with the provisions
of this Agreement, without diminution of such obligation and liability by virtue of the appointment
of such submanager, to the same extent and under the same terms and conditions as if the Manager
alone were managing the Railcars. The fees and expenses of the submanager (if any) will be as
agreed between the Manager and its submanager and shall be the liability of the Manager
exclusively, and neither the Agent nor the Company will have any responsibility therefor; provided,
however, to the extent agreed to between the Manager and submanager, expenses of the submanager may
be reimbursed by the Manager and treated for all purposes hereof as expenses incurred by the
Manager (which, subject to the terms of the Loan Agreement and the limitations contained in Section
2.06(b), be reimbursable to the extent provided herein and in the Loan Agreement). All actions of
a submanager taken pursuant to such a submanager agreement will be taken as an agent of the Manager
with the same force and effect as though performed by the Manager. For the avoidance of doubt, any
maintenance shop which routinely services or repairs railroad rolling stock, including any of the
Railcars, or does running repairs shall not, solely based upon such custom (and not a written
agreement), be deemed a submanager.



Section 2.03. Duties of Manager. In consideration of the compensation to be paid to the
Manager pursuant to Section 2.05, and, if applicable, Section 6.02(a), and subject to the
provisions of Section 2.02 above, the Manager shall provide and perform the services on behalf of
the Company set forth below until this Agreement is terminated in accordance with Section 6.01:




(a) To contract for the maintenance, storage and release of the Railcars and to
authorize any repairs or maintenance service which, in the exercise of the Manager’s
business judgment, are necessary or appropriate.




(b) For any Railcar not subject to a Lease, to take possession of such Railcar, as
agent for the Company, for the purpose of managing and operating such Railcar as herein
provided, subject to the Lien of the Security Agreement.




(c) To exercise the authority granted in Section 2.02 above and to use its best efforts
in accordance with the Manager Standard to keep the Railcars under lease for the term of
this Agreement, subject to the following conditions:




(i) the Manager shall only enter into a Replacement Lease if each of the
representations and warranties set forth in Section 4.03 hereof with respect to such
Replacement Lease are true and correct as of the date of the origination of such
Replacement Lease and the Concentration Limits are satisfied;




(ii) the Manager (A) shall have delivered to the Agent an updated Lease and
Railcar Schedule reflecting the addition of such Replacement Lease and (B) shall
maintain a complete and current copy of such Lease and Railcar Schedule in its
records for inspection in accordance with the terms hereof; and




(iii) the Manager shall have delivered any items to be included in the Lease
File in respect of such Replacement Lease to the Servicer to be held on behalf of
the Agent (except that any originals of the Lease not in the possession of the
Equipment Lessee under such Lease shall be delivered to the Agent).




(d) To enter into or accept assignment of, on behalf of the Company, lease agreements
providing for the lease of the Railcars to railroads, shippers or other financially
responsible parties for that purpose on terms and conditions which are customary in its own
practice in the industry (including, without limitation, exercising its right to cause a
railroad to put the Railcars on such railroad’s line bearing such railroad’s reporting
marks, if such arrangement appears, in the Manager’s business judgment, to be either the
most effective method of remarketing the Railcars or the most effective short-term use of
the Railcars pending long-term remarketing), taking such steps as may be required to ensure
that all obligations and duties arising under such agreements are performed or complied with
in an orderly and timely fashion and causing all original copies of the Leases constituting
chattel paper not in the possession of the Equipment Lessee under such Lease to be delivered
to the Agent.




(e) Cause to be taken all steps which may be necessary to have the Railcars registered
and accepted by all hauling carriers under the AAR as required by the terms of any Lease or
otherwise.




(f) Maintain, or to enforce the Equipment Lessees’ obligations to maintain, the
Railcars in good condition equal to or greater than the highest of (i) any standard required
or set forth for the Railcars or railcars of a similar class by the AAR, STB, or DOT, (ii)
any standard set by a Equipment Lessee, whether by terms of a Lease or by other
understanding or agreement between such Equipment Lessee and the Manager, on behalf of the
Company, (iii) any standard set by any insurance policy under which the Railcars shall from
time to time be insured, (iv) in good working order and in accordance with the Interchange
Rules, (v) any standard recommended by the manufacturer, and (vi) the standards used by the
Manager in respect of railcars owned, leased or managed by the Manager and its Affiliates
similar in type to the Railcars.




(g) Place and maintain, or enforce the Equipment Lessees’ obligations to maintain, such
insurance with respect to the Railcars as shall be necessary to comply with the provisions
of Section 4.2 of the Security Agreement. During the month of December in each year,
beginning December, 2006, the Manager shall deliver to the Company, and the Agent an
Officer’s Certificate confirming the renewal of all insurance policies.




(h) Within 10 days after the Closing Date with respect to the initial Collateral and as
necessary from time to time thereafter with respect to any Railcars and the Leases (except
for Leases which have terms of less than one year, including, but not limited to,
month-to-month Leases) which shall become part of the Collateral, the Manager shall make, at
the expense of the Company, such filings, deposits, registers or recordations, in the manner
required by and in accordance with applicable law, necessary to perfect and protect the Lien
of the Security Agreement, including filings with the STB pursuant to 49 U.S.C. 11301(a)
(and in conformity with 49 C.F.R. 1177) and with the Canadian Registry and the filing of UCC
and PPSA financing statements in all applicable filing offices. From time to time
thereafter, the Manager shall take or cause to be taken such actions and execute such
documents as are necessary to perfect and, at the expense of the Company, to preserve and
protect the Company’s, the Agent’s and the Lenders’, interests, as such interests may
appear, in the Collateral against all other Persons, including the filing of financing
statements, amendments thereto and continuation statements, the execution of transfer
instruments and the making of notations on or taking possession of all records or documents
of title.




(i) Maintain books and records reflecting transactions arising from the operation of
the Railcars, including records relating to maintenance, repair and service contracts and
all authorized expenses relating thereto. Such books and records shall be available to the
Company, and the Agent upon the Company’s or the Agent’s reasonable prior request for
examination during the normal business hours of the Manager.




(j) Monitor movement of the Railcars, including (i) keeping records pertaining to the
movement of the Railcars, railcar mileage credits and other compensation earned and received
with respect to such Railcars as well as charges from railroads as a result of mileage
adjustments; (ii) subject to all rules and tariffs of the railroad, crediting such railcar
mileage credits and other compensation as provided for in the related Lease; and (iii) such
other matters as may be reasonably related thereto.




(k) Using reporting marks pursuant to the Car Mark Agreement, place reporting marks or
such other marks, legends, or placards on the Railcars as shall be appropriate or necessary
to comply with any regulation imposed by the STB, the AAR or any equivalent authority, or as
shall be required under the Loan Documents. The Manager will cause each Railcar owned by
the Company to be kept numbered with the road number serial number as shall be set forth on
the Lease and Railcar Schedule. Other than as permitted by the Car Mark Agreement, the
Manager shall not allow the name of any other Person, other than the Company, to be placed
on any Railcar as a designation that might be identified as a claim of any interest therein;
provided, however, that nothing herein contained shall prohibit the Manager or the Company
or its permitted Equipment Lessees from placing its name, trademarks, initials, customary
colors and other insignia on any Railcar or from naming any Railcar. Except with respect to
those Railcars for which new identification numbers have been set forth on the Lease and
Railcar Schedule as of the Closing Date, the Manager shall not change the identification
number of any Railcar unless and until a statement of a new number or numbers to be
substituted therefor shall have been delivered to the Agent and filed, recorded and
deposited by the Manager in all appropriate public offices, including the public offices
where the Security Agreement (or a memorandum thereof) shall have been filed, recorded and
deposited.




(l) Furnish factual information reasonably requested by the Company in connection with
any federal, state, or local tax returns.




(m) Prepare or cause to be prepared the necessary returns or other filings for all
personal property taxes and other taxes, charges, assessments, or levies imposed upon or
against the Railcars or the Company of whatever kind or nature and, where it deems
appropriate (or as otherwise directed by the Company), protest the application of such taxes
or the rate or amount of assessment thereunder. The Manager shall pay, or enforce the
Equipment Lessees’ obligations to pay, such taxes on behalf of the Company. In the
Manager’s discretion (or as otherwise directed by the Company), the Manager shall contest or
defend against any taxes imposed upon or against the Railcars and seek revision or appeal
from any such taxes deemed improper, all such actions to be in the name of the Company or
the Manager on behalf of the Company. Notwithstanding the foregoing, the consent of the
Agent shall be required prior to any protest, contest, defense or appeal in respect of any
taxes, rate or amount hereinabove referred to in the event that the aggregate liability at
issue at any one time shall exceed $100,000.




(n) If any Railcar suffers a Casualty Loss, the Manager shall, promptly after learning
of such Casualty Loss, (i) investigate the facts and circumstances giving rise to such
Casualty Loss and provide such notices and Officer’s Certificates with respect thereto on
behalf of the Company as may be required under the applicable Lease, (ii) collect or arrange
for appropriate payment of compensation from the relevant railroad, Equipment Lessee, third
party or other source, or combination thereof, and take such other steps, including field
inspection and investigation, as deemed appropriate by the Manager, and (iii) take all steps
and actions, including the hiring of attorneys and consultants, required with respect to
such Casualty Loss under the applicable Lease. Following such investigation and
consideration of such other facts and circumstances as the Manager feels are necessary or
appropriate, the Manager shall terminate such Lease (as to such Railcar) and arrange for
deposit of the related Equipment Lessee’s payments, railroad payments or insurance proceeds
into the Collection Account. With respect to any Railcar suffering an Casualty Loss, the
Manager is hereby granted full power and authority, subject to the terms and conditions of
the Leases, to sell (or dispose as scrap) on the Company’s behalf any such Railcar which has
been settled for under the rules of the AAR or settled with Equipment Lessees or any insurer
and, upon direction of the Company, the Manager will effect such sale or disposition in
accordance with the Manager Standard, for no additional fee or other compensation. The
Manager shall transfer to the Lockbox Account, for deposit into the Collection Account, any
amounts the Manager receives in respect of such Casualty Loss from such sources. The
Company hereby agrees to execute all necessary powers of attorney and other documents
evidencing such power and authority in favor of the Manager. Anything herein to the
contrary notwithstanding, in the event of damage to a Railcar to which Rule 107 of the
Interchange Rules applies, the Manager shall not, without the prior written consent of the
Agent, (i) accept any settlement offer if the offered Settlement Value (set forth in the
related “Settlement Value Statement” (as such term is used in Rule 107)) is less than the
Advance Rate times the Fair Market Value of such Railcar nor (ii) reject any such settlement
offer if the offered Settlement Value equals or exceeds the Advance Rate times the Fair
Market Value of such Railcar.




(o) Upon the expiration of any Lease (or upon the acquisition by the Company of any
Railcar not then subject to a Lease), the Manager shall, (i) until the related Railcars have
been leased or re-leased in accordance with this Agreement and the Loan Agreement, transport
and store, or arrange for the transportation and storage of, such Railcars on tracks
designated by the Manager (whether such tracks are owned by the Manager or otherwise), (ii)
negotiate appropriate renewals thereof or remarket the related Railcars on terms and
conditions which are in compliance with the terms and provisions of the Loan Documents, as
to which each of the representations and warranties contained in Section 4.03 shall be
correct and which otherwise are customary at such time and with adequate regard as to credit
quality in accordance with the Manager Standard; (iii) inspect, clean (to the extent not
done by the applicable Equipment Lessee) and refurbish any Railcar which is to be remarketed
in a manner consistent with the Manager Standard; and (iv) take such steps as may be
required to see that all obligations and duties arising under the Loan Agreement with
respect to the remarketed Railcars are performed or complied with to the extent required
thereunder.




(p) Terminate any Lease (if permitted by, and in accordance with the terms of, such
Lease) with respect to any Railcar which the Manager believes is obsolete or surplus to the
Company’s requirements under the terms of such Lease and provide such notices with respect
thereto as may be required under such Lease to effect such a termination; if such election
is made, take the necessary action on behalf of the Company to arrange for the sale of such
Railcar and the termination of the Lease of such Railcar.




(q) Cause compliance with the Lessor’s obligations, if any, under the return provisions
of any Lease with respect to any Railcar which is being returned to the Company thereunder.




(r) Enforce, on behalf of the Company, the warranties with respect to all repairs,
maintenance and modifications made with respect to the Railcars at facilities not owned by
the Manager or an Affiliate of the Manager.




(s) In the event that any Railcar shall become economically obsolete or damaged beyond
repair, sell such Railcar in compliance with the requirements of the Loan Agreement.




(t) In the event that the Company shall so direct in accordance with the terms of the
Loan Agreement, sell such Railcar to such purchaser as the Company shall designate to the
Manager.




(u) Enforce the Equipment Lessee’s obligations to ensure compliance of the Railcars and
the Leases with applicable governing regulations and rules, including regulations and rules
promulgated by AAR, DOT, STB and the FRA, including, but not limited to, maintaining the STB
registration of the Leases and, in the event that any Equipment Lessee is a United States
Governmental Authority, cause the Company to comply with the Assignment of Claims Act.




(v) Notify the Agent and the Company of any breaches of warranties, misrepresentations
or defaults under the Sale Agreement.




(w) Enforce all covenants and obligations of the seller contained in the Sale Agreement
on behalf of the Company and deposit any amounts recovered into the Collection Account, and
take such actions as may be reasonably requested from time to time by the Company or the
Agent on behalf of such Company) in connection with such enforcement, and deliver to such
Company (with a copy to the Agent) all consents, approvals, directions, notices, waivers and
take other actions under the Sale Agreement.




(x) Perform on behalf of the Company all maintenance obligations thereof (as Lessor)
set forth in any Leases. .




(y) Without limiting the foregoing, to perform all obligations of the Company under the
Loan Agreement with respect to the Railcars and the Leases; provided, however, that
the Manager shall have no liability with respect to (i) principal or interest on any Loan or
Note or (ii) any diminution in the value of the Railcars and Leases other than as a result
of a breach by the Manager of its obligations hereunder.




(z) Perform for the Company such other services incidental to the foregoing as may from
time to time be reasonably necessary in connection with the leasing, operation and
day-to-day management of the Railcars.




(y) As soon as available and in any event within 90 days after the end of each of the
first three quarters of each fiscal year of the Company, commencing June 30, 2006, and
within 120 days after the end of each fiscal year of the Company, the Manager shall deliver
to the Agent (i) an Officer’s Certificate identifying any changes in car marks related to a
Railcar made during the three-month period ending on the last day of the immediately
preceding calendar month and (ii) in the event that any such changes shall have been so
made, an Opinion of Counsel (which shall be an outside counsel) in form and substance
reasonably satisfactory to the Agent to the effect that all such changes have been so filed,
recorded and deposited with the STB pursuant to 49 U.S.C. 11301(a) (and in conformity with
49 C.F.R. 1177) and with the Canadian Registry as to protect the Agent’s and the Lenders’
security interest (on behalf of the Secured Parties) in the Railcars located in the United
States and Canada, and that no other filing, recordation, deposit or giving of notice to any
Governmental Authority is necessary to protect such interests.



Section 2.04. Required Modifications and Optional Modifications. (a) Required Modifications.
In the event the AAR, DOT or any other Governmental Authority having jurisdiction over the
Railcars or any other applicable Law requires as a condition of continued use or operation of any
such Railcar that such Railcar be altered or modified (a “Required Modification”), the Manager
agrees to make or have made such Required Modification in accordance with the applicable Lease, on
behalf of the Company, in a timely manner; provided, however, that the Manager may, on behalf of
the Company, in good faith and by appropriate proceedings diligently conducted, contest the
validity or application of any such Law, regulation, requirement or rule in any reasonable manner
which does not materially interfere with the use, possession, operation or return of any Railcar or
materially adversely affect the rights or interests of the Company, the Agent or the Lenders in the
Railcar or subject the Company, or the Agent or the Lenders to criminal or material financial
sanctions or relieve the Equipment Lessee of the obligation to return the Railcar in compliance
with the provisions of such Lease or other related Transaction Documents (or the obligations of the
Manager hereunder in respect of such return). Promptly after the Manager becomes aware of the
requirement to make a Required Modification, the Manager shall notify the Company and the Agent
thereof, which notice shall also set forth the time period for the making of such Required
Modification and the Manager’s reasonable estimate of the cost thereof. If the Manager, on a
non-discriminatory basis, reasonably believes in good faith that any Required Modification to a
Railcar would be economically impractical, it shall so advise the Company and, if directed by the
Company, in lieu of making the Required Modifications as provided above, the Manager shall provide
written notice to the Company that such Required Modification is economically impractical, and
shall treat such Railcar as if an Casualty Loss had occurred as of the date of such written notice
with respect to such Railcar. In such event, the provisions of the related Lease and this
Agreement with respect to a Casualty Loss shall apply with respect to such Railcar. In reaching
any decision as to whether a Required Modification is economically impractical, the Manager shall
assess the cost and timing of the Required Modification, the anticipated revenues and other sources
of funds which would be available to fund such costs, the requirements of the applicable Lease and
such other factors as the Manager considers necessary or appropriate and shall provide a report to
the Company, with copies to the Agent regarding such assessment.



(b) Optional Modifications. The Manager is authorized at any time to modify, alter or improve
any Railcar in a manner which is not a Required Modification, including any Railcar not then under
a Lease (an “Optional Modification”), if the Manager concludes in good faith that the proposed
Optional Modification is likely to enhance the marketability of the Railcar by more than the cost
of such modification (or such Optional Modification is requested by a Equipment Lessee) and that
such Optional Modification meets the standards set forth in the applicable Lease, if any.



Section 2.05. Manager Fee and Supplemental Manager Fee. As compensation to the Manager for
the performance of services hereunder, the Manager will receive the Manager Fee, which shall be
paid to the Manager on each Payment Date in accordance with, and subject to the priority of payment
provisions of, Section 3.1 or Section 7.3, as applicable, of the Security Agreement. In the event
that a Successor Manager is appointed as Manager hereunder, the Successor Manager will be entitled
to receive the Manager Fee.



Section 2.06. Manager Expenses. (a) In addition to the Manager Fee and the Supplemental
Manager Fee, the Manager shall be entitled to reimbursement of the following out-of-pocket expenses
(collectively, “Operating Expenses”) incurred by the Manager, in the manner and to the extent
provided for in Section 2.06(b), in connection with the satisfaction of its responsibilities under
this Agreement (it being expressly understood and agreed that the Manager shall not be entitled to
separate reimbursement for any salaries or benefits of employees of the Manager, overtime wages or
any other “overhead” costs or expenses of the Manager):




(i) repositioning charges;




(ii) repair and maintenance charges;




(iii) fees and expenses incurred in connection with the occurrence of any Casualty Loss
or with enforcing Lease rights or repossessing any Railcars;




(iv) insurance premiums and charges with respect to the Insurance Policies;




(v) fees and expenses incurred in connection with calculation and payment of ad valorem
taxes, and in connection with any protest, contest, defense or appeal referenced in, and
permitted under, Section 2.03(m);




(vi) taxes for which the Lessor is responsible under any Lease;




(vii) fees and expenses incurred in connection with inspections of Railcars;




(viii) fees and expenses of outside counsel in connection with the management of the
Railcars;




(ix) fees of third-party advisors, consultants and brokers relating to the re-letting
of any Railcar;




(x) storage and car mark charges;



	 	 	 
	(xi)

(xii)

(xiii)

	 	charges incurred in connection with tracing and registering Railcars;

reimbursements for prefunded or advance payments;

painting and re-stenciling the car mark and number for Railcars;







(xiv) making any Required Modifications or Optional Modifications to any Railcar;




(xv) making any regulatory filings with respect to the Leases or the Railcars;




(xvi) ensuring the maintenance of the security interest of the Agent and the Lenders in
the Leases and the Railcars;




(xvii) payment for uninsured losses and for bodily injury or property damage caused by
any Railcars which are not covered by Insurance Policies or which exceed the amount of
deductible(s) under any Insurance Policy; and




(xviii) all other out-of-pocket expenses properly chargeable to the management,
operation, leasing or disposition of the Railcars in the manner provided herein.



(b) On each Payment Date immediately succeeding the delivery of a Monthly Operating Expense
Report to the Agent in accordance with Section 3.01, the Manager shall be entitled to be
reimbursed, upon request, for any Operating Expenses that it has incurred in the previous calendar
quarter and such amounts shall be paid to the Manager in accordance with, and subject to the
priority of payment provisions of, Section 3.2 or Section 7.3, as applicable, of the Security
Agreement.



Section 2.07. Responsibility for Loss of, Distribution of, or Damage to Railcars. The
responsibilities of the Company and the Manager for loss of, destruction of, or damage to any
Railcar are apportioned as follows:




(a) The Manager shall not be liable for damage to or destruction of any Railcar under
any circumstances unless such damage or destruction is the direct result of the Manager’s
negligence or willful misconduct.




(b) The Manager shall obtain insurance to the extent required by Section 2.01(i) and
Section 2.03(g).




(c) If any Railcar is damaged, but is not destroyed or damaged beyond repair, the
Manager shall use its best efforts, in accordance with the Manager Standard, to obtain
reimbursement of repair expenses for the Company in accordance with AAR rules. If any
Railcar is damaged beyond repair or destroyed, the Manager shall use its best efforts, in
accordance with the Manager Standard, to obtain the value of such Railcar in accordance with
appropriate AAR rules and, if applicable, in accordance with provisions in the Leases
relating to Events of Loss.



Section 2.08. Denial or Refusal of Insurance. (a) If an insurer under an insurance policy
covering the Collateral shall deny coverage (in any such case prior to termination thereof as a
result of the payment by such insurer of an aggregate amount equal to its maximum liability under
such insurance policy), or shall refuse to honor a claim under any such insurance policy with
respect to any Railcar, and if such denial or refusal resulted solely from the Manager’s failure to
comply with the requirements of such insurance policy or the requirements of such insurer, or if
the Manager shall have failed to maintain the coverage required by the terms of the Security
Agreement, then the Manager, on behalf of the Company, shall cause the amount of any resulting
unpaid claim to be deposited into the related Collection Account as a recovery on such Railcar with
respect to which such denial or refusal arose. The Manager shall not be entitled to seek
reimbursement under Section 2.06 for amounts deposited into the Collection Account pursuant to this
Section 2.08(a).



(b) The Manager shall promptly, but in any event within five days, notify the Company, and the
Agent of the occurrence of any event described in Section 2.08(a) or the cancellation or
termination of any Insurance Policy.



Section 2.09. Conflicts of Interest. It is expressly understood and agreed that nothing
herein shall be construed to prevent or prohibit the Manager from providing the same or similar
services to any Person or organization not a party to this Agreement. In particular, the Manager
shall be entitled to own and operate for its own account railroad cars and equipment identical to
the Railcars managed hereunder and/or to manage such railroad cars or equipment under a similar
management agreement with another owner; provided, however, that if other railroad cars similar to
or competitive with the Railcars owned or managed by the Manager are available for leasing at the
same time that any Railcar is so available, the Manager or its agent or submanager shall give no
preference or priority to either the leasing of such other railroad cars or the Railcars, subject
to the needs of prospective deployers and all applicable regulations of the AAR, STB and DOT.



Section 2.10. Separate Corporate Existence Covenants. The Manager recognizes that the Agent
and the Lenders have entered into the Loan Agreement and the other Loan Documents on the
understanding that the Company is an entity intended to have its own separate existence independent
from that of the Manager. In connection therewith, the Manager will (i) maintain separate bank
accounts and books of account from the Company, (ii) not hold itself out to third parties as liable
or responsible for the debts of the Company (except for performance of such obligations which are
assumed by it as Manager hereunder) and not holding the Company out to third parties as being
liable or responsible for the debts of the Manager, (iii) not conduct business in the name of the
Company except when acting in the name of the Company in its capacity as Manager and it identifies
itself as such, (iv) not hold itself out as the owner of the Railcars or the Leases and take
reasonable steps to ensure that Equipment Lessees and other parties dealing with the Railcars or
the Leases are aware of the Company’s interests therein and (v) take such other actions on its part
as may be required for the Company to be in compliance with the Loan Agreement and the Loan
Documents on the Closing Date. In the event that the Manager’s consolidated financial statements
are required under GAAP to include the Company, the Manager will include footnotes therein that
disclose the separate corporate existence of the Company and its assets from the Manager and the
Manager’s Assets.



Article III




Accountings, Statements and Reports




Section 3.01. Manager Reports.




(a) As soon as available and in any event within 90 days after the end of each of the
first three quarters of each fiscal year of the Company, commencing June 30, 2006, and
within 120 days after the end of each fiscal year of the Company, the Manager will provide
to the Agent a Quarterly Manager Report (a “Quarterly Manager Report”) substantially in the
form of Exhibit A hereto with each of the items specified on such form completed as the case
may be.




(b) No later than one Business Day prior to each Payment Date, the Manager will provide
to the Agent a Monthly Operating Expense Report (a “Monthly Operating Expense Report”), in
form and substance satisfactory to the Agent, which shall include the amount of Operating
Expenses incurred by the Manager in respect of the Railcars owned by the Company in such
immediately preceding calendar month and which are to be paid pursuant to the priorities set
forth in Section 3.2 and 7.3 of the Security Agreement, as applicable.



Section 3.02. Financial Statements; Certification as to Compliance; Notice of Default. The
Manager will deliver to the Agent, except as provided in subsection (h):




(a) within 120 days after the end of each fiscal year of the Company, a copy of the
Company’s Financial Statements for such fiscal year certified in a manner acceptable to the
Agent by the senior financial officer of the Manager or such other person as may be
acceptable to the Agent, it being understood that delivery to the Agent of the Manager’s
report on Form 10-K filed with the Securities and Exchange Commission shall satisfy the
requirements of this Section 3.02(a);




(b) with each set of the Company’s Financial Statements delivered pursuant to
subsection (a) above and (d) below, a certificate of an officer of the Manager demonstrating
compliance with all financial covenants or tests calculated by reference to such financial
statements and containing an additional certification to the effect that a review of the
activities of the Manager during the period covered by the Company’s Financial Statements,
and of its performance under this Agreement has been made under the supervision of the
officer executing such Officer’s Certificate with a view to determining whether during such
period the Manager had performed and observed all of its obligations under this Agreement,
and either (i) stating that based on such review no default by the Manager under this
Agreement has occurred and is continuing, or (ii) if such a default has occurred and is
continuing, specifying such default, the nature and status thereof and what steps, if any,
the Manager is planning to do or has done to cure such default;




(c) promptly upon becoming aware of the existence of any condition or event which
constitutes a Manager Event of Termination, a written notice describing its nature and
period of existence and what action the Manager is taking or proposes to take with respect
thereto;




(d) quarterly, unaudited versions of the Company’s consolidated balance sheet,
year-to-date income statement, retained earnings and cash flows within 45 days after the end
of each quarter (other than the quarter at the end of each fiscal year), it being understood
that delivery to the Agent of the Manager’s report on Form 10-Q filed with the Securities
and Exchange Commission shall satisfy the requirements of this Section 3.02(d);




(e) copies of any reports filed by the Manager with the SEC concerning the Manager;




(f) in the case of the Initial Manager, copies of any certificates required to be
furnished by the Initial Manager under any credit agreement to which the Initial Manager is
a party and which addresses compliance by the Initial Manager with the requirements of such
credit agreement and the absence or existence of defaults thereunder; and




(g) such other information regarding the Railcars or the Leases, the Manager or the
transactions contemplated hereby, as the Agent may reasonably request.



Section 3.03. Annual Manager’s Reports. On or before 120 days after the end of each fiscal
year of the Manager, the Manager shall deliver to the Company and the Agent, a report of the
Manager, certified by the Chief Executive Officer or Chief Financial Officer of the Manager, to the
effect that the Manager has examined certain documents and records relating to the management of
the Railcars and the Leases under this Agreement and that, on the basis of such examination
conducted substantially in compliance with generally accepted audit standards, nothing came to its
attention which caused it to believe that the Manager has accounted for matters regarding the
Railcars and the Leases, including deposits in, and requested withdrawals from, the Collection
Account, otherwise than in accordance with this Agreement, except for such immaterial exceptions or
errors on records that, in the opinion of such the Manager, it is not required to report.



Section 3.04. Delivery of Accountings, Statements and Reports. To the extent that the Manager
and the Servicer are the same Person, it may, in its sole discretion and to the extent practicable,
fulfill its obligations under this Article III and Article III of the Servicing Agreement with the
delivery of one quarterly report, one set of financial statements, a single Officer’s Certificate
(executed in its capacities as both Manager and Servicer) or a single annual report, as the case
may be.



Article IV




Representations and Warranties 




Section 4.01. Initial Manager Representations and Warranties. The Initial Manager hereby
represents and warrants to the Company, the Agent and the Lenders as follows:




(a) Corporate Existence and Power. The Manager has been duly organized and is validly
existing and in good standing as a corporation under the laws of the state of Ohio, with all
requisite power and authority to own its properties and to transact the business in which it
is now engaged, and the Manager is duly qualified to do business and is in good standing in
each state where the nature of its business requires it to be so qualified except where
failure to so qualify would not have a Material Adverse Effect. The Manager has all
requisite power and authority and has taken all action necessary to enter into this
Agreement and the other Transaction Documents to which it is a party, to consummate the
transactions contemplated hereby and thereby, and to perform its obligations hereunder and
thereunder. The execution, delivery and performance by the Manager of this Agreement are
within the Manager’s powers, have been duly authorized by all necessary action and do not
contravene any applicable Law, the Manager’s organizational documents or any contractual or
other obligation binding on or affecting the Manager or any of its assets. The Manager has
delivered to the Company and the Agent a true and correct copy of its articles of
incorporation, its code of regulations and other organizational documents.




(b) No Conflict. The performance of the Manager’s obligations under this Agreement and
each other Transaction Document to which it is a party will not conflict with or result in a
breach of any of the terms or provisions of, or constitute a default under, or result in the
creation or imposition of any Lien (other than as contemplated by this Agreement and other
than Permitted Liens) upon any of the property or assets of the Manager pursuant to the
terms of any loan agreement, mortgage, deed of trust, or other agreement or instrument to
which it is a party or by which it is bound or to which any of its property or assets is
subject, nor will such action result in any violation of the provisions of any charter
document of the Manager or any statute or any order, rule or regulation of any court or
Governmental Authority having jurisdiction over it or any of its properties; and no consent,
approval, authorization, order, registration or qualification of or with any court, or any
such Governmental Authority is required for the consummation of the other transactions
contemplated by this Agreement or any other Transaction Document to which it is a party
except such consents, approvals and authorizations which have been obtained or such
registrations or qualifications which have been made.




(c) Due Authorization, Execution and Delivery. Each Transaction Document to which the
Manager is a party has been duly authorized, executed and delivered by the Manager and each
such Transaction Document is a valid and legally binding agreement of the Manager,
enforceable against the Manager in accordance with its terms, subject as to enforceability
to applicable bankruptcy, insolvency, reorganization and other similar bylaws of general
applicability relating to or affecting creditors’ rights generally and to general principles
of equity regardless of whether enforcement is sought in a court of law or equity.




(d) Solvency. Both before and after giving effect to the transactions contemplated by
this Agreement, the Manager is Solvent.




(e) Accuracy of Information. All information heretofore furnished (including, but not
limited to, the Company’s Financial Statements) by the Manager to the Company, the Agent and
the Lenders for purposes of or in connection with this Agreement, the other Transaction
Documents, or any transaction contemplated hereby or thereby is, and all such information
hereafter furnished by it hereunder will be, true, complete and correct in every material
respect, on the date such information is stated or certified, and no such item contains or
will contain any untrue statement of a material fact or omits or will omit to state a
material fact necessary in order to make the statements contained therein, in the light of
the circumstances under which they were made, not misleading.




(f) Tax Status. It has (i) timely filed all federal, state and local tax returns or
permitted extensions thereof in the United States and all other tax returns or permitted
extensions thereof in foreign jurisdictions required to be filed and (ii) paid or made
adequate provision in accordance with GAAP for the payment of all taxes, assessments and
other governmental charges.




(g) Employee Benefits. With respect to employees that primarily work in connection
with the Railcars and the Leases:




(i) Except as set forth on Schedule I, with respect to current or former
employees of the Manager, the Manager does not maintain, participate in or
contribute to any (A) deferred compensation or retirement plans or arrangements, (B)
tax-qualified or nonqualified defined contribution or defined benefit plans or
arrangements which are employee pension benefit plans (as defined in Section 3(2) of
ERISA), (C) employee welfare benefit plans (as defined in Section 3(1) of ERISA),
(D) phantom stock appreciation right, stock option, stock purchase or other stock
based plans, or (E) any fringe benefit plans or programs. The Manager does not
maintain or contribute to any employee welfare benefit plan that provides health,
accident or life insurance benefits to former employees, their spouses or
dependents, other than in accordance with Section 4980B of the Code or Part 6 of
Subtitle B of Title I of ERISA or other applicable Law.




(ii) The employee pension benefit plans and employee welfare benefit plans (and
related trusts and insurance contracts) of the Manager, which plans are described on
Schedule I, have been administered in compliance with the requirements of applicable
Laws, except where failure thereof would not result in a Material Adverse Effect on
the Collateral. Each employee pension benefit plan which is intended to be a
“qualified plan” has received an opinion letter from the Internal Revenue Service as
to the qualification under the Code of such plan.




(iii) With respect to each of the plans listed on Schedule I, the Manager has
made available to the Company true and complete copies of (A) the plan documents,
summary plan descriptions and summaries of material modifications and other material
employee communications about such plan, (B) the opinion letter received from the
Internal Revenue Service, (C) the Form 5500 Annual Report (including all schedules
and other attachments) for the most recent plan year, (D) all related trust
agreements, insurance contracts or other funding agreements which implement such
plans and (E) all contracts relating to each such plan, including, without
limitation, service provider agreements, insurance contracts, investment management
agreements and record keeping agreements.




(iv) All contributions and other payments required to have been made by the
Manager with respect to any plan described on Schedule I have been or will be made
when due.




To the Knowledge of the Manager, no plan described on Schedule I is subject to any ongoing
audit, investigation or other administrative proceeding of any Governmental Authority nor
has any Action been commenced against any such plan (other than for benefits in the ordinary
course), in which the adverse result thereof would result in a Material Adverse Effect on
the Railcars and the Leases, or on the Company after the Closing Date.




(h) Employment Matters. The Manager is not party to, bound by, or negotiating in
respect of any collective bargaining agreement or any other agreement with any labor union,
association or other employee group in connection with its railcar leasing business, nor, to
the Knowledge of the Manager, is any employee that primarily works in connection with its
railcar leasing business represented by any labor union or similar association. No labor
union or employee organization has been certified or recognized as the collective bargaining
representative of any employee of the Manager that primarily works in connection with its
railcar leasing business. To the Knowledge of the Manager, there are no formal union
organizing campaigns or representation proceedings in process or formally threatened with
respect to any employee of the Manager that primarily work in connection with its railcar
leasing business, nor are there any existing or, to the Knowledge of the Manager, threatened
at large labor strikes, work stoppages, organized slowdowns, unfair labor practice charges,
or labor arbitration proceedings affecting employees of the Manager that primarily work in
connection with its railcar leasing business.




(i) Environmental Matters. Except to the extent such matters would not have a Material
Adverse Effect:




(i) to the Knowledge of the Manager, the Manager is in compliance with all
applicable Environmental Laws related to the Collateral. Except for matters that
have been fully resolved, the Manager has not received any written communication
from any person or Governmental Authority that alleges that its operations in
connection with the Railcars or the Leases are not in compliance with applicable
Environmental Laws;




(ii) to the Knowledge of the Manager, the Manager has obtained all
environmental, health and safety permits and governmental authorizations
(collectively, the “Environmental Permits”) necessary for the conduct of its railcar
leasing business, and all such permits are in good standing or, where applicable, a
renewal application has been timely filed and is pending agency approval, and to the
Knowledge of the Manager, the Manager is in compliance with all terms and conditions
of the Environmental Permits; and




(iii) there is no Environmental Claim pending or, to the Knowledge of the
Manager, threatened against or concerning the Railcars or the Leases.




To the Knowledge of the Manager, no release of any Hazardous Commodities has occurred on or
from any of the Railcars or the Leases, which requires investigation, assessment,
monitoring, remediation or cleanup under Environmental Laws.




(j) No Default. To the Knowledge of the Manager, there has been no default under the
Purchase Agreement or any other Transaction Document.



Section 4.02. Company Representations and Warranties. The Company hereby represents and
warrants to the Manager, the Agent and the Lenders as follows:




(a) The Company has been duly organized and is validly existing and in good standing
under the laws of the jurisdiction of its organization, with all requisite power and
authority to own its properties and to transact the business in which it is now engaged, and
the Company is duly qualified to do business and is in good standing in each jurisdiction
where the nature of its business requires it to be so qualified except where failure to so
qualify would not have a Material Adverse Effect. The Company has all requisite power and
authority and has taken all action necessary to enter into this Agreement and the other
Transaction Documents to which it is a party, to consummate the transactions contemplated
hereby and thereby, and to perform its obligations hereunder and thereunder. The execution,
delivery and performance by the Company of this Agreement and the other Transaction
Documents are within the Company’s powers, have been duly authorized by all necessary action
and do not contravene any applicable Law, the Company’s organizational documents or any
contractual or other obligation binding on or affecting the Company or any of its assets.




(b) The performance of the Company’s obligations under this Agreement and each other
Transaction Document to which it is a party will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default under, or result in the creation
or imposition of any Lien (other than as contemplated by this Agreement and other than
Permitted Liens) upon any of the property or assets of the Company pursuant to the terms of
any loan agreement, mortgage, deed of trust, or other agreement (including the Leases) or
instrument to which it is a party or by which it is bound or to which any of its property or
assets is subject, nor will such action result in any violation of the provisions of any
charter document of the Company or any statute or any order, rule or regulation of any court
or Governmental Authority having jurisdiction over it or any of its properties; and no
consent, approval, authorization, order, registration or qualification of or with any court,
or any such Governmental Authority is required for the consummation of the other
transactions contemplated by this Agreement or any other Transaction Document to which it is
a party except such consents, approvals and authorizations which have been obtained or such
registrations or qualifications which have been made.




(c) Each Transaction Document to which the Company is a party has been duly authorized,
executed and delivered by the Company and each such Transaction Document is a valid and
legally binding agreement of the Company, enforceable against the Company in accordance with
its terms, subject as to enforceability to applicable bankruptcy, insolvency, reorganization
and other similar laws of general applicability relating to or affecting creditors’ rights
generally and to general principles of equity regardless of whether enforcement is sought in
a court of law or equity.




(d) The Company has delivered to the Manager a true, complete and correct copy of the
Loan Agreement.



Section 4.03. Manager Representations and Warranties with Respect to Replacement Leases and
Replacement Units. In consideration of the Manager Fee, and as a result of its conducting due
diligence with respect to Replacement Leases and Replacement Units, the Manager hereby represents
and warrants with respect to any Replacement Lease or Replacement Unit, as of the date any such
Replacement Lease or Replacement Unit is consummated or acquired, to each of the Company, the Agent
and the Lenders as follows:




(a) The updated Lease and Railcar Schedule delivered to the Agent in accordance with
Section 2.03(c) contains a true, correct and complete list of all such Replacement Leases
originated in accordance with Section 2.03(c), including, in each case, the name of the
lessee, deal number (if applicable), type of lease (full service, modified, triple net,
etc.), lease rate, number of lease payments remaining (if applicable), final payment due
date under lease, number of Railcars under lease and commencement date of lease.




(c) The updated Lease and Railcar Schedule delivered to the Agent in accordance with
Section 2.03(c) sets forth a true, correct and complete list of all such Replacement Units
transferred to the Company on such date, including, as to each such Replacement Unit, the
month and year built (and, if applicable, rebuilt), car type (by AAR equipment code), car
mark and number assigned to such Replacement Unit in UMLER, if applicable, volume capacity
as expressed in cubic feet if a railcar, or in horsepower if a locomotive (in each case, if
known and if applicable), total (gross) weight on rail, the AAR determination of extended
life (if applicable), whether such Replacement Unit is subject to a Lease (and, if so, the
lease or deal number, as applicable), and, if applicable, storage location (including
description, city and state).




(d) The Manager has not received any notice of the occurrence of any Casualty Loss, or
any event which, with the passage of time would constitute a Casualty Loss, with respect to
any such Replacement Unit.




(e) Each such Replacement Lease (i) is evidenced by a writing, (ii) constitutes the
legal, valid and binding obligation of the Lessee thereunder, (iii) has not been satisfied
other than in the ordinary course, subordinated, rescinded, or, adjusted, (iv) remains in
full force and effect and (v) is enforceable against such Lessee in accordance with its
terms (except to the extent that enforcement may be affected by applicable bankruptcy,
reorganization, insolvency and other Laws affecting creditors’ rights and remedies generally
and by general principles of equity, regardless of whether enforcement is sought at law or
in equity).




(f) Except as set forth on the updated Lease and Railcar Schedule delivered to the
Agent in accordance with Section 2.03(c) (i) no Lessee under any such Replacement Lease is
currently in bankruptcy under the bankruptcy laws of the United States, (ii) unless
consented to by the Company, no provision of any such Replacement Lease has been waived,
amended, or modified in any material respect, except by instruments or documents copies of
which have been delivered to the Company and the Agent and reflected on the Lease and
Railcar Schedule and, in any event, no such Replacement Lease has been waived, amended or
modified since its origination to cure a payment default or delinquency, (iii) no
delinquency or default by the Lessee under any such Replacement Lease has occurred and is
continuing and (iv) the Lessee is in compliance with the terms of such Replacement Lease in
all material respects.




(g) No Action is pending or, to the Knowledge of the Seller, has been threatened
asserting the invalidity of any such Replacement Lease, or seeking any determination or
ruling that might adversely and materially affect the validity or enforceability of any such
Replacement Lease or the value of any such Replacement Unit.




(h) Each such Replacement Lease is “chattel paper” (as defined in Section 9-102(a)(11)
of the UCC). All original, executed copies of such “chattel paper” are in the possession of
the Agent.




(i) No such Replacement Lease has been originated in or is subject to the laws of any
jurisdiction whose laws would make the assignment and transfer thereof pursuant to the terms
hereof (or any subsequent assignment by the Company) unlawful.




(j) Each such Replacement Unit is marked with the railroad equipment number (also known
as the running number) as noted on the updated Lease and Railcar Schedule delivered to the
Agent in accordance with Section 2.03(c).




(k) To the Knowledge of the Seller, the Lessees have complied with all applicable Laws
in respect of each such Replacement Lease in all material respects and each such Replacement
Lease complies with all applicable Laws of the jurisdiction in which it was originated in
all material respects.




(l) The Lessee under each such Replacement Lease is a (i) a United States common
carrier by railroad engaged in the transportation of individuals or property or owner of
trackage facilities leased by such common carrier, or (ii) a United States corporation,
limited partnership, limited liability company or other entity,




(m) Any guarantees on behalf of an applicable Lessee required at the time of
origination of such Replacement Lease remain in full force and effect.




(n) The lease origination practices used by the Manager with respect to each such
Replacement Lease have been legal in all material respects.




(o) Each Lessee under each such Replacement Lease has accepted the related Railcar or
Railcars and after reasonable opportunity to inspect and test, has not notified the Manager
of any defects therein.




(p) For those Replacement Units described on the updated Lease and Railcar Schedule
delivered to the Agent in accordance with Section 2.03(c) or as having an extended life
determined by AAR as a result of having been refurbished, modified or substantially rebuilt,
there is in the Lease Files, and there has been filed, the proper documentation with AAR to
qualify such Railcars for extended life along with updating UMLER records.




(q) No correspondence has been received by the Manager from the AAR or FRA regarding
any outstanding general or specific recalls for such Replacement Units or any required
modifications, nor, to the Knowledge of the Manager, do there exist any such outstanding
general or specific recalls for any such Replacement Units or any required modifications.




(r) Each such Replacement Unit is in good working order and is suitable for the use for
which it is presently engaged. None of the Replacement Leases or Replacement Units is
subject to any restrictions with respect to the transferability thereof.




(s) Each such Replacement Lease is denominated in and provides for payment solely in
United States dollars.




(t) All such Replacement Units are located in the United States other than those
Replacement Units that are located in Canada or Mexico in connection with the incidental use
of such Replacement Units in those countries.




(u) No Replacement Lease expressly allows the transport or storage of any Hazardous
Commodities on the related Railcars.




(v) Except as set forth on the Lease and Railcar Schedule, rental payments under each
Replacement Lease are billed and payable monthly.




(w) Except as set forth on the Lease and Railcar Schedule, no Lessee is an Affiliate of
the Manager.




(x) There are no split schedules for any such Replacement Leases.




(y) No such Replacement Leases expressly release the Lessee from liability for all of
its obligations under such Replacement Leases (including with respect to the related
Railcars) in connection with any sublease and, to the Knowledge of the Seller, no Lessee has
subleased any of the related Railcars under such Replacement Lease unless such Lessee
remains so liable and all other terms set forth in Section 2.01(j) of the Servicing
Agreement have been satisfied.




(z) To the extent such matters are governed by the laws of the United States or any
state thereof, or Canada or any province thereof, the Agent has a first priority, perfected
security interest in the Replacement Units and the Replacement Leases.




(aa) The Lease File for each such Replacement Lease is complete in all respects and
Manager, as Servicer will continue to maintain control of the Lease files on behalf of
Company (except for any original chattel paper copies of such Replacement Leases which are
in the possession of the Agent).




(bb) Each such Replacement Lease other than a full service lease contains provisions
requiring the Lessee to pay all sales, use, excise, rental, property or similar taxes
imposed on or with respect to the related Railcar and to assume all risk of loss, damage, or
destruction of the related Railcar, and each such Replacement Lease requires the Lessee to
maintain the Railcars which are subject thereto in good and workable order.




(cc) No such Replacement Lease provides for the replacement, addition or exchange of
any Railcar subject to such Replacement Lease which would result in any reduction, or change
the timing of, payments due, or modification of, the Lessee’s obligations under such
Replacement Lease.




(dd) No such Replacement Lease is a “consumer lease”, as defined in Article 2A of the
UCC.




(ee) The obligation of the Lessee under each such Replacement Lease to make lease
payments and other amounts is absolute and unconditional and not dependent on the future
appropriation of funds, and no Lessee is entitled to invoke sovereign immunity with respect
to any such Replacement Lease and its obligations thereunder.




(ff) The Manager has the right under each such Replacement Lease to exercise
appropriate remedies with respect to the related Railcars without obtaining the consent of
any third parties.




(gg) No selection criteria were used in connection with the acquisition by the Company
of such Replacement Units and/or Replacement Leases that identified the Replacement Units or
Replacement Leases as being less desirable or valuable than other comparable railcars,
leases or other assets owned by the Company or the Manager.




(hh) Each such Replacement Lease either (i) provides for the return of the related
Railcars upon default, or (ii) does not prohibit the Lessor from demanding return of the
related Railcars and repossessing said Railcars after default under, or termination of, such
Lease.




(ii) For each such Replacement Lease where the Lessee is not a railroad, each such
Replacement Lease requires that in the event of a Casualty Loss that the Lessee must take
one of the following actions: (a) restore or repair the affected Railcar to good repair,
condition and working order, (b) replace the Railcar with a like Railcar of the same or
later model in good repair, condition and working order, or (c) pay the Lessor thereunder
the “stated value” (as defined in such Lease) of such Railcar. For each such Replacement
Lease where the Lessee is a railroad, (i) if damage to a Railcar occurs while on the
Lessee’s railroad line, such Replacement Lease requires the Lessee to pay the Lessor the
“stated value” (as defined in such Lease), and (ii) if damage to a Railcar occurs while on
the lines of another railroad, Interchange Rules apply.




(jj) No Lessee under any such Replacement Lease has made a cash deposit to secure its
obligation to make future lease payments.




(kk) Such Replacement Units conform, to the Knowledge of the Manager, to (i) any
applicable standards or requirements of any Governmental Authority and (ii) any applicable
standards required by each national and international standards organization which regulates
railcars in any relevant jurisdiction.




(ll) No set-offs exist under any such Replacement Lease.




(mm) On such date, after giving effect to such Replacement Leases acquired or
originated, the Company was in compliance with the Concentration limits.



Section 4.04. Purchase or Substitution Required upon Breach of Certain Representations and
Warranties. (a) The representations, warranties and agreements of the Manager set forth in Section
4.03 with respect to each Replacement Unit and Replacement Lease shall survive so long as such
Railcar or Lease remains subject to the Lien of the Security Agreement. Upon discovery by the
Manager or the Company that any of such representations or warranties was incorrect as of the time
made, the party making such discovery shall give prompt notice to the others, to the Lenders and to
the Agent. In the event that the failure of any such representation or warranty (other than the
representation and warranty set forth in Section 4.03(mm)) to be correct at the time as of which it
was made materially and adversely affects the interests of the Agent or the Lenders in any
Replacement Unit or Replacement Lease which is the subject of such representation or warranty, the
Manager shall eliminate or cure such circumstance or condition within 45 days of having actual
knowledge of, or receiving notice of, such breach, or the Manager shall take such steps as are
necessary to (a) if a Replacement Lease is the subject of such representation or warranty, Purchase
all of the Railcars covered by such Lease (and the related Lease relating solely to such Railcars)
at the Purchase Price in accordance with this Section 4.04, (b) if a Replacement Unit is the
subject of such representation or warranty, purchase such Replacement Unit at the Purchase Price in
accordance with this Section 4.04 or (c) if a Replacement Unit is the subject of such
representation or warranty, provide a Replacement Unit meeting all of the requirements of Section
4.03, complying with the Concentration Limits and having a Fair Market Value which, when aggregated
with the Fair Market Value of all other Replacement Units then being substituted, shall be no less
than the aggregate Fair Market Value of all Railcars then being replaced, so that the
representations and warranties with respect to such Replacement Units or Replacement Lease, as
applicable, are correct. In the event of any breach of the representation or warranty set forth in
Section 4.03(mm), the obligation of the Manager to Purchase or provide Replacement Units shall
apply to the extent required to cure such breach. For the avoidance of doubt, this Section 4.04
shall not apply to any Successor Manager.



(b) Any Purchase of a Railcar (and any related Lease) or other payment required of the Manager
pursuant to this Section 4.04 shall be made by the Manager by deposit of the Purchase Price
required by Section 4.04(c) into the Collection Account, and any substitution of a Railcar made in
lieu of any such purchase shall be made, in either case, on or prior to the Payment Date next
following the calendar month in which the Manager’s obligation to Purchase such Railcar (and any
related Lease) arose.



(c) Any Railcar (and any related Lease) to be Purchased by the Manager under this Section
4.04, shall be Purchased by the Manager at a purchase price (the “Purchase Price”) equal to the
Fair Market Value (as of the last Appraisal (as defined in the Loan Agreement) delivered to Agent)
of such Railcar on the date on which the obligation to Purchase first arose, plus accrued interest
(calculated at the Prime Rate) thereon from such date to the date of the Purchase by the Manager.
All Purchases shall be accomplished at the times required in Section 4.04(b).



(d) Upon the substitution of any Replacement Unit, the Manager hereby agrees that such
Replacement Unit will be subject to all of the terms and conditions of this Agreement and the other
Transaction Documents just as if such Replacement Unit has been one of the original Railcars
acquired on the Closing Date.



Article V




Manager Covenants




Section 5.01. Corporate Existence; Status as Manager; Merger. (a) The Initial Manager shall
keep in full effect its existence and good standing as



a corporation in its state of incorporation and will obtain and preserve its qualification to
do business as a foreign corporation in each jurisdiction in which such qualification is or shall
be necessary to enable the Initial Manager to perform its duties under this Agreement, except where
the failure to so qualify would not have a Material Adverse Effect on the Initial Manager or its
ability to perform its duties hereunder; provided, however, that the Initial Manager may
reincorporate in another state, if to do so would be in the best interest of the Initial Manager
and would not have a Material Adverse Effect upon the Company, or the Agent and the Initial Manager
has complied with the requirements set forth in Section 5.01(b).



(b) The Initial Manager shall not consolidate with or merge into any other Person or convey,
transfer or lease substantially all of its assets as an entirety to any Person, unless (i) the
entity formed by such consolidation or into which the Initial Manager has merged or the Person
which acquires by conveyance, transfer or lease substantially all the assets of the Initial Manager
as an entirety, executes and delivers to the Company and the Agent an agreement, in form and
substance reasonably satisfactory to the Company and the Required Lenders, which contains an
assumption by such successor entity of the due and punctual performance and observance of each
covenant and condition to be performed or observed by the Initial Manager under this Agreement,
(ii) such Person at the time of the execution of such agreement has at least the same Tangible Net
Worth as the Initial Manager at the time of such consolidation, merger or transfer, but in any
event a Tangible Net Worth of at least $75,000,000 (iii) after giving effect to such merger or
consolidation, no Manager Event of Termination shall have occurred and be continuing, (iv) such
Person shall meet the criteria required of and applicable to a Successor Manager set forth in
Section 6.01(b) and (v) the Manager shall have received the prior written consent of the Agent and
the Required Lenders.



Section 5.02. The Manager Not to Resign; No Assignment. (a) The Manager shall not resign from
the duties and obligations hereby imposed on it except (i) upon a determination by its Board of
Directors that by reason of a change in applicable legal requirements the continued performance by
the Manager of its duties under this Agreement would cause it to be in violation of such legal
requirements, said determination to be evidenced by a resolution of its Board of Directors to such
effect accompanied by an Opinion of Counsel reasonably satisfactory to the Agent, to such effect,
(ii) upon appointment of a Successor Manager by the Company, with the approval of the Agent and the
Required Lenders, and (iii) the entering into of amendments to this Agreement to effect such
succession in form reasonably acceptable to the Company, the Agent and the Required Lenders.



(b) The Manager may not assign this Agreement or delegate any of its rights, powers, duties or
obligations hereunder; provided, however, that the Manager may submanage its duties and obligations
hereunder in accordance with Section 2.02(c) and assign this Agreement in connection with a
consolidation, merger, conveyance, transfer or lease made in compliance with Section 5.01(b).



(c) Except as provided in Sections 5.02(a) and 6.01, the duties and obligations of the Manager
under this Agreement shall continue until this Agreement shall have been terminated as provided in
Section 6.01, and shall survive the exercise by the Company, the Agent or the Lenders of any right
or remedy under this Agreement, or the enforcement by the Company, the Agent or the Lenders of any
provision of the Loan Agreement, the other Loan Documents or this Agreement.



Section 5.03. Car Mark Agreement. The Manager shall abide by the terms of the Car Mark
Agreement and shall provide the benefits thereof to the Company.



Section 5.04. Manager Indemnification. The Manager shall indemnify and hold harmless the
Company, the Agent, the Lenders, and each of their respective Affiliates and the directors,
officers, employees and agents of each thereof (the “Indemnified Parties”), from and against:




(a) any breach of or any inaccuracy in any representation or warranty (other than any
representation or warranty contained in Section 4.03 which has been fully remedied in
accordance with Section 4.04) made by the Manager in this Agreement or in any certificate
delivered pursuant thereto;




(b) any breach of or failure by the Manager to perform any covenant or obligation of
the Manager set out or contemplated in this Agreement;




(c) the negligence, recklessness or willful misconduct of the Manager;




(d) any dispute or claim of any third party related to or in connection with the
existence of more than one originally executed counterpart of a Lease which constitutes
“chattel paper” under Article 9 of the UCC;




(e) any dispute, counterclaim, defense, loss, liability, expense, damage or injury
suffered or sustained by reason of any acts, omissions or alleged acts or omissions arising
out of any act or failure to act on the part of the Manager with respect to its obligations
under this Agreement, including but not limited to any judgment, award, settlement,
reasonable attorneys’ fees and other reasonable costs or expenses incurred in connection
with the defense of any actual or threatened action, proceeding or claim;




(f) any failure by the Manager to comply with any applicable Law with respect to any
Railcar or Lease;




(g) the commingling by the Manager of Equipment Lease Proceeds at any time with any
other funds;




(h) any inability to obtain any judgment in or utilize the court or other adjudication
system of, any jurisdiction in which a Equipment Lessee may be located as a result of the
failure of the Manager to qualify to do business or file any notice of business activity
report or any similar report;



provided, however, that the Manager shall not indemnify the Indemnified Parties if such acts,
omissions or alleged acts or omissions constitute fraud, gross negligence, or willful misconduct by
such Indemnified Party; and provided, further, that the Manager shall not indemnify the Indemnified
Parties for any liability, cost or expense of the Collateral with respect to any federal, state or
local income or franchise taxes (or any interest or penalties with respect thereto) required to be
paid by the Agent or the Lenders in connection herewith to any taxing authority; and provided,
further, that in the event that a Successor Manager shall succeed to the duties of the Manager, the
provisions of this Section 5.04 shall not apply to such Successor Manager unless expressly agreed
to thereby. The provisions of this Section 5.04 shall survive any expiration or termination of
this Agreement. Any indemnification owed to the Indemnified Parties under this Section 5.04 shall
be due and payable within 30 days of the applicable Indemnified Party’s demand therefor.



Section 5.05. Expense Reimbursement. The Manager shall not request reimbursement for any
expenses incurred on its behalf by an Affiliate of the Manager unless such expenses are no more
than the arm’s-length, fair-market-value costs of the services provided by such Affiliate.



Section 5.06. Agreements with respect to the Car Mark Agreement. The Manager hereby agrees (i)
to comply with the representations, warranties, covenants and agreements of the “Buyer” under the
Car Mark Agreement and (ii) not to consent or agree to any amendment, restatement, supplement or
other modification to the Car Mark Agreement without the prior written consent of the Agent.



Article VI




Manager Termination




Section 6.01. Manager Events of Termination. (a) If any of the following acts or occurrences
(each, a “Manager Event of Termination”) shall occur and be continuing:




(i) any failure by the Manager to submit a Quarterly Manager Report pursuant to Section
3.01 that continues unremedied for a period of two Business Days or a Monthly Operating
Expense Report that continues unremedied for a period of five Business Days, in each case,
after the earliest of the date upon which (A) the Agent provides written notification to the
Manager of such failure, or (B) the date on which an Responsible Officer obtains actual
knowledge of such failure; or




(ii) any representation or warranty made by the Manager in this Agreement (other than
any representation or warranty contained in Section 4.03 which has been fully remedied in
accordance with Section 4.04), any other Transaction Document to which it is a party or in
any certificate delivered by the Manager hereunder proves to have been untrue or incorrect
in any material respect when made and such untruth or incorrectness shall continue to be
material and unremedied; provided, however, solely if such untruth or incorrectness is
capable of being remedied, no such untruth or incorrectness shall constitute cause for
termination hereunder for a period of 30 days after the earlier of (A) the date on which an
Responsible Officer obtains actual knowledge of such failure or (B) the Manager’s receipt of
notice from the Company or the Agent so long as the Manager is diligently proceeding to
remedy such untruth or incorrectness and shall in fact remedy such untruth or incorrectness
within such period; provided, however, such untrue or incorrect representation or warranty
shall be deemed to be remediable or remedied only after all adverse consequences thereof, if
any, can be and have been remedied as applicable; or




(iii) any failure on the part of the Manager duly to observe or to perform in any
material respect any covenant or agreement of the Manager set forth in this Agreement or any
other Transaction Document to which it is a party (including if the Manager is also acting
as the Servicer, of its duties as the Servicer), which failure, if such failure is curable,
continues unremedied for a period of 30 days after the earlier to occur of (A) the date on
which written notice of such failure or breach, requiring the situation giving rise to such
failure or breach to be remedied, shall have been given to the Manager by the Agent or the
Company; or (B) the date on which an Responsible Officer of the Manager obtains actual
knowledge of such failure; or




(iv) the entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Manager in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or other similar law, or
(B) a decree or order adjudging the Manager bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or composition of or in
respect of the Manager under any applicable federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar official of the
Manager or of any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any of the foregoing unstayed and in
effect for a period of 45 consecutive days; or




(v) the commencement by the Manager of a voluntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or other similar law or
of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the Manager in an involuntary
case or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against it, or the filing by it of a petition or answer or consent
seeking reorganization or relief under any applicable federal or state law, or the consent
by it to the filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar official of the
Manager or of any substantial part of its property, or the making by it of an assignment for
the benefit of creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by the Manager in
furtherance of any such action; or




(vi) any assignment by the Manager to a delegate of its duties or rights hereunder,
except as specifically permitted hereunder, or any attempt to make such an assignment; or




(vii) a final nonappealable judgment of a court of competent jurisdiction for more than
$1,000,000 shall be entered against the Manager and shall not be stayed, vacated, bonded,
paid or discharged within 45 days; or




(viii) the Manager shall cease to be engaged in the railcar management or maintenance
business; or




(ix) the failure of the Manager to maintain a ratio of long term debt minus the
non-recourse portion of long term debt to Tangible Net Worth of not more that 1.25 to 1; or




(x) the Manager shall fail to pay, when and as the same shall become due and payable
(after giving effect to any applicable grace period), any principal or interest, regardless
of amount, due in respect of any indebtedness of the Manager in a principal amount in excess
of $5,000,000 or any event shall occur with respect to any such indebtedness, the effect of
which is to cause, or allow the holder thereof to cause, such indebtedness to become due
before its stated maturity; or




(xi) so long as the Initial Manager is the Manager, the occurrence of a Change of
Control; or




(xii) so long as the Manager or any Affiliate thereof is acting as Servicer, the
occurrence of a Servicer Event of Termination pursuant to Section 6.01 of the Servicing
Agreement;



then, and in each and every case, so long as a Manager Event of Termination shall not have been
remedied within any applicable period set forth above, the Agent may, and shall at the direction of
the Required Lenders, by notice (the “Manager Termination Notice”) then given in writing to the
Manager, terminate all, but not less than all, of the rights (other than any rights to receive,
subject to the priority of payments set forth in Sections 3.2 and 7.3 of the Security Agreement, as
applicable, all amounts owed to the Manager, including but not limited to the Manager Fee and any
Operating Expenses in accordance with Section 2.06, accrued up to the effective date specified by
the Manager Termination Notice) and obligations of the Manager under this Agreement, which
termination shall be effective as of the date of such Manager Termination Notice or such later date
as such Manager Termination Notice may specify.



(b) The Manager may not be terminated in whole or in part, unless (i) a successor Manager (the
“Successor Manager”) has been appointed by the Agent (acting at the direction of the Required
Lenders) and (ii) such Successor Manager has accepted such appointment. Any Successor Manager
shall be a located in the United States and be acceptable to the Agent. Any Successor Manager,
however appointed, shall execute and deliver to the Agent, the Company and to the predecessor
Manager an instrument accepting such appointment, including customary confidentiality provisions in
favor of the predecessor Manager and Company, and thereupon such Successor Manager, without further
act, shall become vested with all the rights, powers, duties and trusts of the predecessor Manager
hereunder with like effect as if originally named the Manager herein.



(c) On and after the time the Manager receives a Manager Termination Notice pursuant to this
Section 6.01, all authority and power of the Manager under this Agreement shall pass to the
Successor Manager appointed pursuant to Section 6.02, and, without limitation, such Successor
Manager is hereby authorized and empowered to execute and deliver, as Manager and on behalf of the
Company, as attorney-in-fact or otherwise, any and all documents and other instruments, and to do
or accomplish all other acts or things necessary or appropriate to effect the purposes of such
Manager Termination Notice.



(d) The terminated Manager shall cooperate with the Agent and the Successor Manager in
effecting the termination of the responsibilities and rights of the terminated Manager hereunder
and the transition of the management to the Successor Manager, including, without limitation, (i)
by transferring, at its own expense, its electronic records relating to the Railcars to the
Successor Manager in such electronic form as the Successor Manager may reasonably request, (ii) by
transferring the current Lease and Railcar Schedule and all other records, correspondence and
documents relating to the Leases or Railcars that it may possess to the Successor Manager in the
manner and at such times as the Successor Manager shall reasonably request and (iii) by responding
to all reasonable requests of the Successor Manager.



Section 6.02. Appointment of Successor Manager. (a) Subject to Section 6.01, on and after the
time the Manager receives a Manager Termination Notice pursuant to Section 6.01 hereof and a
Successor Manager shall be appointed by the Agent acting at the direction of the Required Lenders),
such Successor Manager shall be subject to all the responsibilities, duties and liabilities
relating thereto placed on the Manager by the terms and provisions hereof; provided, however, that
any Successor Manager shall not (i) be liable for any acts or omissions of the outgoing Manager or
for any breach by the outgoing Manager of any of its representations and warranties contained
herein or in any related document or agreement, (ii) be responsible to perform any duties under
Section 2.03(u) in respect of the United States Assignment of Claims Act, Section 2.03(v).
 Subject to the consent of the Required Lenders, the Successor Manager may subcontract with
another firm to act as submanager so long as the Successor Manager remains fully responsible and
accountable for performance of all obligations of the Manager.



(b) The Manager, the Agent and such Successor Manager shall take such action, consistent with
this Agreement, as shall be necessary to effectuate any such succession. The Successor Manager and
the Agent shall be reimbursed for their respective expenses, if any, incurred in connection with
the assumption of responsibilities of the Successor Manager as provided for in Sections 3.2 and 7.3
of the Security Agreement.



(c) If the Manager is also acting as Servicer under the Servicing Agreement, upon any
resignation of the Servicer, the Manager will also be required to resign as Manager. The Manager
and Servicer shall at all times be the same Person.



Section 6.03. Effects of Termination of Manager. (a) After the delivery of a Manager
Termination Notice and appointment of a Successor Manager, the former Manager shall have no further
obligations with respect to the management of the Railcars or the performance of maintenance,
insurance, remarketing or any other services with regard to the Railcars, and the Successor Manager
shall have all of such obligations except as otherwise set forth herein. The former Manager’s
indemnification obligations pursuant to Section 5.04 will survive the termination of the Manager
hereunder but will not extend to any acts or omissions of a Successor Manager.



(b) A Manager Event of Termination shall not affect the rights and duties of the parties
hereunder (including, but not limited to, the obligations and indemnities of the Manager pursuant
to Section 5.04) other than those relating to the management, insuring and remarketing of the
Railcars.



(c) The predecessor Manager shall defend, indemnify and hold the Successor Manager and any
officers, directors, employees or agents of the Successor Manager harmless against any and all
claims, losses, penalties, fines, forfeitures, legal fees and related costs, judgments and any
other costs, fees, and expenses that the Successor Manager may sustain in connection with the
claims asserted at any time by third parties against the Successor Manager which result from (i)
any willful or negligent act taken or omission by the predecessor Manager or (ii) a breach by the
predecessor Manager of an express obligation of the Manager hereunder. The indemnification
provided by this Section 6.03(c) shall survive the termination of this Agreement.



(d) The Successor Manager will not be responsible for delays attributable to the predecessor
Manager’s failure to deliver information, defects in the information supplied by the terminated
Manager or other circumstances beyond the control of the Successor Manager.



The Successor Manager shall have no responsibility and shall not be in default hereunder nor
incur any liability for any failure, error, malfunction or any delay in carrying out any of its
duties under this Agreement if any such failure or delay results from the Successor Manager acting
reasonably and in accordance with information prepared or supplied by a Person other than the
Successor Manager or the failure of any such Person to prepare or provide such information. The
Successor Manager shall have no responsibility, shall not be in default and shall incur no
liability (i) for any act or failure to act by any third party, including the terminated Manager,
or for any inaccuracy or omission in a notice or communication received by the Successor Manager
from any third party or (ii) which is due to or results from the invalidity or unenforceability of
any Lease under applicable law or the breach or the inaccuracy of any representation or warranty
made by the terminated Manager. The Successor Manager shall not be liable for any acts or
omissions of the Manager occurring prior to such Manager transfer or for any breach by the Manager
of any of its representations and warranties contained herein or in any related document or
agreement.



Notwithstanding anything contained in this Agreement to the contrary, the Successor Manager is
authorized to accept and rely on all of the accounting, records (including computer records) and
work of the terminated Manager relating to the Leases and the Railcars (collectively, the
ÒPredecessor Manager Work ProductÓ) without any audit or other examination thereof, and the
Successor Manager shall have no duty, responsibility, obligation or liability for the acts and
omissions of the prior Manager. If any error, inaccuracy, omission or incorrect or non-standard
practice or procedure (collectively, ÒErrorsÓ) exist in any Predecessor Manager Work Product and
such Errors make it materially more difficult to service or should cause or materially contribute
to the Successor Manager making or continuing any Errors (collectively, ÒContinued ErrorsÓ), the
Successor Manager shall have no duty, responsibility, obligation or liability for such Continued
Errors; provided, however, that the Successor Manager agrees to use its best efforts, consistent
with the Manager Standard, to prevent further Continued Errors. In the event that the Successor
Manager becomes aware of Errors or Continued Errors, the Successor Manager shall, with the prior
consent of the Agent, use its best efforts, consistent with the Manager Standard, to reconstruct
and reconcile such data as is commercially reasonable to correct such Errors and Continued Errors
and to prevent future Continued Errors. The Successor Manager shall be entitled to recover its
costs thereby expended in accordance with the Section 3.2 and 7.3, as applicable, of the Security
Agreement.



Section 6.04. Rights Cumulative. All rights and remedies from time to time enforced upon or
reserved to the Company, the Agent or the Lenders or to any or all of the foregoing are cumulative,
and none is intended to be exclusive of another. No delay or omission in insisting upon the strict
observance or performance of any provision of this Agreement, or in exercising any right or remedy,
shall be construed as a waiver or relinquishment of such provision, nor shall it impair such right
or remedy. Every right and remedy of the Company, the Agent or the Lenders may be exercised from
time to time and as often as deemed expedient.



Article VII




Miscellaneous Provisions




Section 7.01. Termination of Agreement. (a) Except where otherwise expressly noted herein,
the respective duties and obligations of the Manager, the Company, and the Agent created by this
Agreement shall terminate upon the termination of the Loan Agreement and the Security Agreement in
accordance with their terms.



(b) This Agreement shall not be automatically terminated as a result of an Event of Default
under the Loan Agreement or any action taken by the Agent or the Lenders thereafter with respect
thereto, and any liquidation or preservation of any property held as contemplated in the Loan
Agreement or the other Loan Documents by the Agent and the Lenders thereafter shall be subject to
the rights of the Manager to manage the Railcars as provided hereunder. In the event of any sale
of Collateral to a third party following an Event of Default, however, this Agreement shall not be
deemed assigned to such third party.



Section 7.02. Amendments. This Agreement may be amended from time to time by the parties hereto
with the prior written consent of the Agent and the Required Lenders for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Agreement or
of modifying in any manner the rights of the Agent or the Lenders hereunder.



Section 7.03. Governing Law. THIS AGREEMENT, INCLUDING THE VALIDITY HEREOF, SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW JERSEY.



Section 7.04. Notices. All demands, notices and communications hereunder shall be in writing
and shall be delivered or mailed by registered or certified United States mail, postage prepaid, or
by telephonic facsimile transmission and overnight delivery service, postage prepaid, and
addressed, in each case as follows: (a) if to the Company, at 480 W. Dussel Drive, Suite S,
Maumee, Ohio 43537, Attention: Betsy Hall, Esq. (facsimile: (419) 491-6695) (b) if to the
Manager, at The Andersons Inc., 480 W. Dussel Drive, Maumee, Ohio 43537, Attention: Betsy Hall,
Esq. (facsimile: (419) 491-6695); (c) if to the Agent or the Lenders, at their address for notices
specified in the Loan Agreement. Any of the Persons in subclauses (a) through (c) above may change
the address for notices hereunder by giving notice of such change to other Persons. All notices
and demands shall be deemed to have been given either at the time of the delivery thereof to any
officer of the Person entitled to receive such notices and demands at the address of such Person
for notices hereunder.



Section 7.05. Severability of Provisions. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and enforceability of any such
provision in every other respect and of the remaining provisions hereof shall not be in any way
impaired or affected.



Section 7.06. Inspection and Examination Rights. The Manager agrees that, on reasonable prior
notice, it will permit any representative of the Agent or the Company, during the Manager’s normal
business hours, to examine all the books of account, records, reports and other papers of the
Manager relating to the Railcars and the Leases, to make copies and extracts therefrom, to cause
such books to be examined by independent certified public accountants selected by the Agent, or the
Company, as the case may be, and to discuss its affairs, finances and accounts relating to the
Railcars and the Leases with its officers, employees and independent public accountants (and by
this provision the Manager hereby authorizes said accountants to discuss with such representatives
such affairs, finances and accounts), all at such reasonable times and as often as may be
reasonably requested. Any expense incident to the exercise by Agent or the Company of any right
under this Section 7.06 shall be borne by the Initial Manager, except that only the first
examination in any year by the Agent will be at the Initial Manager’s expense (unless there has
occurred and is continuing a Manager Event of Termination, a Servicer Event of Termination (if the
Manager is also the Servicer) (or any event which, with the giving of notice or passage of time,
would constitute any such event), in each of which cases each such examination shall be at the
expense of the Manager), or, if a Successor Manager other than an Affiliate of the Initial Manager
is then acting as Manager, such expense shall be borne by the party exercising such right of
inspection; provided, however, that in no event shall the Agent, or the Company be entitled to any
expenses hereunder for which it has been previously reimbursed pursuant to Section 7.06 of the
Servicing Agreement.



Section 7.07. Binding Effect. All provisions of this Agreement shall be binding upon and
inure to the benefit of the respective successors and assigns of the parties hereto.



Section 7.08. Article Headings. The article headings herein are for convenience of reference
only, and shall not limit or otherwise affect the meaning hereof.



Section 7.09. Legal Holidays. In the case where the date on which any action required to be
taken, document required to be delivered or payment required to be made is not a Business Day, such
action, delivery or payment need not be made on such date, but may be made on the next succeeding
Business Day.



Section 7.10. Assignment for Security. The Manager understands that the Company will assign
to, and grant to the Agent and the Lenders under the Security Agreement a security interest in, all
of its right, title and interest to this Agreement. The Manager consents to such assignment and
grant and further agrees that all representations, warranties, covenants, and agreements of the
Manager made herein shall also be for the benefit of and inure to the Agent and the Lenders.



Section 7.11. No Bankruptcy Petition. The Manager hereby covenants and agrees for the benefit
of the Agent and the Lenders, prior to the date which is one year and one day after the payment in
full of all obligations of the Company, it will not institute against the Company, or join any
other Person in instituting against the Company, any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceedings or other proceedings under the laws of the United States, any
state of the United States or any foreign jurisdiction. This Section 7.11 shall survive the
termination of this Agreement.



Section 7.13. Third-Party Beneficiaries. The Agent, the Lenders and their successors and
assigns shall be third-party beneficiaries to the provisions of this Agreement, and shall be
entitled to rely upon and directly enforce such provisions of this Agreement. Nothing in this
Agreement, express or implied, shall give to any Person, other than the Agent, the parties hereto
and their successors hereunder and permitted assigns, any benefit or any legal or equitable right,
remedy or claim under this Agreement.



Section 7.14. Entire Agreement. This Agreement constitutes the entire understanding between
the parties with respect to the subject matter hereof. All prior agreements, understandings,
representations, warranties and negotiations, if any, are merged into this Agreement, and this
Agreement is the entire agreement between the parties hereto relating to the subject matter hereto.



Section 7.15. Survival of Representations and Warranties. All representations and warranties
made herein or in connection herewith shall survive the execution and delivery of this Agreement.



Section 7.16. Survival of Indemnities. All the indemnity and expense provisions set forth in
this Agreement shall survive the execution and delivery of this Agreement.



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In Witness Whereof, the Company and the Manager have caused this Agreement to be duly
executed by their respective officers thereunto duly authorized as of the date and year first above
written.




	 	 	 	THE ANDERSONS RAIL OPERATING I LLC






By: /s/ Richard R. George

Name: Richard R. George

Title: manager





	 	 	 	THE ANDERSONS, INC.






By: /s/ Gary Smith




Name:
Gary Smith




Title: Vice President, Finance & Treasurer



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Schedule I




Manager Employee Benefits




The Andersons, Inc. Defined Benefit Pension Plan


The Andersons, Inc. Retirement Savings Investment Plan


The Andersons, Inc. Employee Share Purchase Plan


The Andersons, Inc. Deferred Compensation Plan


The Andersons, Inc. Supplemental Retirement Plan



4



Exhibit A




Form of Quarterly Manager Report





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