EX-10.16






THE ANDERSONS RAIL OPERATING I LLC,




as the Company




and




THE ANDERSONS, INC.,




as the Servicer




______________________________




Servicing Agreement




______________________________




Dated as of December 29, 2005




1




Servicing Agreement, dated as of December 29, 2005 (this “Agreement”), by and
between The Andersons Rail Operating I LLC a Delaware limited liability company, (the
“Company”), and The Andersons, Inc., an Ohio corporation, as the servicer (the
“Servicer”), 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,
supplemented or otherwise modified 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 Servicer to provide
for the servicing of the Leases (as defined herein). In order to further secure the Company’s
obligations under the Loan Agreement and the other Loan Documents (as defined herein), the Company
is granting to Agent and the Lenders a security interest in, among other things, the Company’s
rights derived under this Agreement, and the Servicer agrees that all covenants and agreements made
by the Servicer herein with respect to the Leases and Railcars (as defined herein) shall also be
for the benefit and security of the Agent and the Lenders. For its services hereunder, the
Servicer will receive the Servicer Fee (as defined herein) as set forth in Section 2.09.



On the date hereof, the Company and the Servicer are entering into a Management Agreement,
dated as of December 29, 2005, (the “Management Agreement”), for the purpose of engaging the
Servicer to also act as Manager, on behalf of the Company, to cause the Company’s Railcars to be
maintained, insured and marketed in accordance with industry standards, perform all of the
Company’s obligations under the Leases with its Equipment Lessees and other agreements and perform
other functions, in each case, as set forth therein.



The Servicer is engaged in the business of owning, leasing, managing and servicing railcars
for itself and for others, and the Company desires to retain the Servicer, on the terms and
conditions set forth in this Agreement, to receive and apply as required under the Loan Agreement
all collections received with respect to the Leases and the Railcars on behalf of the Company.



Article I




Definitions




Section 1.01. Defined Terms. Subject to Section 1.02 and 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:



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



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



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



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



“Authorized Officer” means any one of the President, the Chief Financial Officer, the
Treasurer, the Assistant Treasurer, the Secretary or the Assistant Secretary.



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



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



“Change of Control” shall have the meaning set forth in the Management Agreement.



“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 of 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(e).



“Defaulted Lease” shall mean any Lease that comes into and continues in default for 90 days.



“Determination Date” shall mean the date that occurs twenty days prior to the applicable
Payment Date.



“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(e).



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



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



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



“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 5.03.



“Initial Manager” shall have the meaning set forth in the Management Agreement.



“Initial Servicer” shall mean The Andersons.



“Knowledge of the Servicer” shall mean the actual knowledge, after due inquiry, of the
officers of the Servicer or its Affiliate responsible for matters relating to the Servicer’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” shall mean, with respect to each Lease, (i) a certified copy of the Lease, (ii)
each executed original counterpart of the Lease that constitutes “chattel paper” or an “instrument”
for purposes of Sections 9-102(a)(11) and (47) of the Uniform Commercial Code, (iii) a guaranty,
if any, (iv) documents evidencing or related to any insurance policy, (v) copies of all statements,
memorandums, UCC financing statements and other documents filed with respect to the Lease in
accordance with the filing requirements of this Agreement, (vi) copies of any additional Lease
documents evidencing any waivers, amendments or modifications of the Lease by the Servicer in
accordance with the terms of this Agreement, and (vii) any other documents relating thereto.



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



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



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



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



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



“Lockbox Bank” shall mean Fifth Third Bank or any other bank or financial institution
reasonably acceptable to the Agent.



“Manager” shall have the meaning set forth in the Management Agreement.



“Management Agreement” shall have the meaning set forth in the preamble of this Agreement.



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



“Quarterly Servicer 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
Servicer.



“Opinion of Counsel” shall have the meaning set forth in the Management 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 Servicer Work Product” shall have the meaning set forth in Section 6.03(e).



“Purchase” shall have the meaning set forth in the Management Agreement.



“Purchase Price” shall have the meaning set forth in the Management Agreement.



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



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



“Rent” as the context may require, with respect to all Leases or with respect to each Lease,
100% of the periodic lease payments for the Railcars leased thereunder.



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



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



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



“Separate Person” shall have the meaning set forth in Section 2.11.



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



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



“Servicer Fee” shall mean the amounts due to the Servicer pursuant to Section 2.09.



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



“Servicing Standard” shall have the meaning set forth in Section 2.01(c).



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



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



“Tangible Net Worth” shall have the meaning set forth in the Management Agreement.



“The Andersons” shall mean The Andersons, Inc., an Ohio corporation, and its permitted
successors and assigns.



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



“UCC” shall have the meaning set forth in the Management Agreement.



Section 1.02. Terms Defined in the Loan Agreement, Sale Agreement or Management 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 Sale Agreement or the Management Agreement, as applicable.



Article II




Administration and Servicing of Lease Receivables




Section 2.01. The Servicer to Act as Servicer; Standard of Care; Covenants Concerning Leases.
(a) The Company hereby retains The Andersons as Servicer 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 Servicer on the terms and conditions set forth herein.



(b) The Servicer shall administer the Leases, and maintain and administer the Lease Files, on
behalf of the Company in accordance with the terms of this Agreement and, subject to the Loan
Documents, the Servicer shall have the requisite power and authority to do any and all things in
connection with such servicing and administration which it may deem necessary or desirable in
accordance with the standard of care set forth below; provided, however, that such actions do not
infringe upon the duties of the Manager as set forth in the Management Agreement. Without limiting
the generality of the foregoing, subject to Sections 2.01(f) and 2.01(l), the Servicer is hereby
authorized and empowered by the Company to execute and deliver, on behalf of the Company, any and
all consents, instruments of satisfaction or cancellation, or of partial or full release or
discharge, and all other comparable instruments, with respect to the Leases (except any consent to
be given by the Company pursuant to this Section 2.01).



(c) All of the functions, services, duties and obligations of the Servicer under this
Agreement shall be performed by the Servicer 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
servicing industry and the level of care and diligence utilized by the Servicer in its business and
in the servicing of the Servicer’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 “Servicing Standard”). The Servicer agrees that servicing of the Leases shall be carried out
in accordance with the Servicing Standard.



(d) Promptly after the execution and delivery of this Agreement, the Servicer shall deliver to
the Company and the Agent the titles for two employees of the Servicer (which employees shall have
experience and expertise in the railcar leasing industry sufficient to perform the duties and
obligations of the Servicer under this Agreement in accordance with the Servicing Standard) which
shall be involved in, or responsible for, the administration and servicing of the Leases, which
list shall from time to time be updated by the Servicer, upon reasonable notice to, and upon the
written consent of an Authorized Officer of the Company.



(e) The parties hereto acknowledge that the Company shall retain title to, and ownership and
exclusive control of, the Collateral (subject to the Lien of the Security Agreement). Except as
expressly permitted hereunder, the Servicer will not acquire any title to, security interest in, or
other rights of any kind in or to the Railcars and the Leases. The Servicer agrees not to file any
Lien, exercise any right of setoff against, or attach or assert any claim in, any of the Leases and
the Railcars, 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.



(f) In performing its obligations hereunder, the Servicer may, acting in the name of the
Company and without the necessity of obtaining the prior consent of the Company or the Agent, enter
into and grant modifications, waivers and amendments to the terms of any Lease as it may deem
reasonably necessary or advisable to maximize Equipment Lease Proceeds, except for modifications,
waivers or amendments that (i) are inconsistent with the Servicing Standard, (ii) after giving
effect thereto, would cause such Lease to cease to comply with any of the representations and
warranties of the Seller in Section      of the Sale Agreement or any of the representations and
warranties of the Manager in Section 4.03 of the Management Agreement, as applicable (iii) after
giving effect thereto, would permit the Equipment Lessee thereunder to take action with respect to
the Railcars which are subject to such Lease which would cause the Company to be in default of its
obligations under any of the Transaction Documents to which it is a party, or (iv) otherwise could
reasonably be expected to materially adversely affect, individually or in the aggregate, the
interests of the Company, the Agent or the Lenders or would otherwise conflict with Section
2.01(l).



(g) Unless otherwise directed by the Company, the Servicer shall not be required on the
Company’s behalf 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 Servicer’s reasonable judgment consistent with the Servicing Standard,
the potential expense or risk associated with such exercise or action is such that the Servicer
would not undertake such exercise or action with respect to other railcars owned, managed or
serviced by the Servicer. If the Servicer, in accordance with this Agreement, commences a legal
proceeding to enforce a Defaulted Lease or commences or participates in a legal proceeding relating
to or involving a Lease, the Company will be deemed to have automatically assigned such Lease to
the Servicer solely for purposes of commencing or participating in any such proceeding as a party
or claimant, and the Servicer is authorized and empowered by the Company, pursuant to this Section
2.01, to execute and deliver, on behalf of itself and the Company, any and all instruments of
satisfaction or cancellation, or partial or full release or discharge, and all other notices,
demands, claims, complaints, responses, affidavits or other documents or instruments, without
recourse to the Company, in connection with any such proceedings. If in any enforcement suit or
legal proceeding it is held that the Servicer may not enforce a Lease on the ground that is not a
real party in interest or a holder entitled to enforce the Lease, then the Company will, at the
Servicer’s expense and direction, take steps to enforce the Lease, including bringing suit in the
Company’s name.



(h) In the event of any modification, waiver or amendment of any Lease in accordance with this
Section 2.01 or any assignment of any Lease or sublease of any Railcars, the Servicer will (i) duly
note such modification, waiver, amendment, assignment or sublease in the next succeeding Quarterly
Servicer Report (and certify therein that such modification, waiver or amendment is not prohibited
by the provisions of this Section 2.01), (ii) promptly furnish the Agent with a copy of such
modification, waiver, amendment, assignment or sublease (except the Servicer shall promptly deliver
to the Agent original copies of any sublease as provided in Section 2.01(j)), and (iii) shall take
such other action, if any, as is necessary to preserve and maintain the perfection and priority of
the Lien of the Security Agreement with respect to such Lease as so modified or amended (including,
if necessary, promptly delivering all originals thereof not in the possession of the Equipment
Lessee under the related Lease to the Agent).



(i) At the request of a Equipment Lessee, the Servicer may, in its sole discretion, consent to
the assignment of any Lease (or Equipment Lessee’s leasehold interest in Railcars leased
thereunder); provided, however, that (i) such Equipment Lessee will remain liable for all of its
obligations under such Lease prior to such assignment, (ii) such assignee satisfies the credit
criteria set forth in the Servicer’s credit policies and procedures, (iii) after giving effect
thereto, the Company will be in compliance with the Concentration Limits, and (iv) such assignment
will not cause the relevant Leases or Railcars to cease to comply with any of the representations
and warranties of the Manager contained in Section 4.03 of the Management Agreement.



(j) At the request of a Equipment Lessee, the Servicer may, in its sole discretion, consent to
the sublease of any Railcars under a Lease; provided, however, that unless each Equipment Lessee
will remain liable for all of its obligations under such Lease (including with respect to the
related Railcars) and such sublease shall be subject and subordinate to the Equipment Lessee’s
obligations under such Lease, then (i) such sublessee satisfies the credit criteria set forth in
the Servicer’s credit policies and procedures and (ii) the original copies of such sublease which
constitute chattel paper are delivered to the Agent, and the Servicer instructs that all payments
thereunder are to be sent directly to the Lockbox Bank for deposit into the Lockbox Account.



(k) The Servicer may enter into servicing agreements with one or more subservicers, with prior
written notice to the Company and the Agent, to perform all or a portion of the servicing functions
on behalf of the Servicer; provided, however, that the Servicer will remain obligated and be liable
to the Agent, and the Company for servicing and administering the Leases in accordance with the
provisions of this Agreement, without diminution of such obligation and liability by virtue of the
appointment of such subservicer, to the same extent and under the same terms and conditions as if
the Servicer alone were servicing and administering the Leases. The fees and expenses of the
subservicer (if any) will be as agreed between the Servicer and its subservicer and shall be the
liability of the Servicer exclusively, and neither the Agent, the Lenders nor the Company will have
any responsibility therefor; provided, however, to the extent agreed to between the Servicer and
subservicer, expenses of the subservicer may be reimbursed by the Servicer and treated for all
purposes hereof as expenses incurred by the Servicer (which shall be reimbursable by the Company if
and to the extent provided herein and subject to the availability of funds therefor under the Loan
Agreement). All actions of a subservicer taken pursuant to such a subservicer agreement will be
taken as an agent of the Servicer with the same force and effect as though performed by the
Servicer. The Successor Servicer may in the course of performing its duties hereunder employ
agents or attorneys, and the Successor Servicer 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.



(l) The Servicer shall not take any action, without the consent of the Company and the
Required Lenders 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 and the Lenders 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.



Section 2.02. Credit Monitoring; Collection of Lease Receivables and Remittances; the Lockbox
Account. (a) The Servicer shall monitor the creditworthiness and performance of the Equipment
Lessees and use its best efforts consistent with the Servicing Standard to collect all payments of
Rents and all other amounts required under the terms and provisions of the Leases to be paid as and
when the same shall become due, and shall use collection procedures consistent with the Servicing
Standard.



(b) In addition, the Servicer shall use its best efforts consistent with the Servicing
Standard to collect all amounts due and owing, and to enforce all of the Company’s rights to
collect such amounts, from any and all other Persons and sources (other than Equipment Lessees to
the extent provided elsewhere in this Section 2.02) with respect to the Leases or the Railcars,
including any insurance proceeds, warranty payments, and overpayments and refunds with respect to
taxes, maintenance or other services provided to or for the benefit of the Company or the Leases or
the Railcars and hourly fees and railroad mileage credits.



(c) The Company will establish the Lockbox Account. The Servicer shall not create or permit to
exist any Lien, charge or encumbrance on the Lockbox Account.



(d) The Servicer will bill each Equipment Lessee (at least monthly, quarterly, semi-annually
or annually, as applicable for Rent payable under such Lease) as agent for the Company, in
invoices, separate from invoices for any leases or railcars not owned by the Company, for the
amount of rent or other amounts (including the Rent) owed with respect to the Railcars by the
Equipment Lessee. Each invoice will provide a detailed listing of such Railcars, and the
applicable amounts due and owing (including the Rent) with respect to each such Railcar, to which
the invoice relates. For certain Equipment Lessees, invoices may be sent electronically. The
Railcars will be sufficiently identified in the detail of the invoice, by serial or other
identification number, to allow the parties to specifically identify the amounts which are due to
the Company. All invoices will instruct the obligor thereunder to make payment of such invoice
directly to the Lockbox Bank for deposit into the Lockbox Account.



(e) The Servicer shall arrange with the Lockbox Bank that by 1:00 p.m. on each Business Day
(or as soon thereafter as practicable), the Lockbox Bank will make available to the Servicer a
computer file of customer checks and related documentation containing information with respect to
all payments received in such Lockbox Account from 12:00 noon of the previous Business Day through
12:00 noon of such Business Day.



(f) If the payment information made available by Lockbox Bank to the Servicer under Section
2.01(e) is insufficient to determine the proper allocation of a payment (or any portion thereof)
between The Andersons and the Company, the Servicer will use such other information as is available
and conduct such procedures as are appropriate to determine the proper allocation of such payment,
including a review of original Lease and invoice information and contacting Equipment Lessees, to
the extent necessary.



(g) By the close of business on each Business Day, the Servicer will cause all funds held in
the Lockbox Account to be transferred to the Collection Account.



(h) If, notwithstanding the payment instructions given by the Servicer in its invoices under
Section 2.01(d), Lease payments or other amounts in respect of the Railcars are received directly
by the Servicer, the Servicer agrees to hold any such Lease payments or other amounts in trust for
the benefit of the Agent and the Lenders and forthwith, promptly and in any event with the time set
forth in Section 2.01(g), to transmit and deliver to the Lockbox Bank (for transfer pursuant to
Section 2.01(g) to the Collection Account), in the form received, all cash, checks and other
instruments or writings for the payment of money so received by the Servicer.



(i) The Lockbox Account will be titled in the name of the Company for the benefit of the Agent
and the Lenders. As to the Company’s billings following the appointment of a Successor Servicer,
the Successor Servicer shall re-caption the invoices to refer to the Successor Servicer, as agent
for the Company. In instances where a customer of both The Andersons and the Company pays with a
single check that is not in the full amount owed to all such parties, unless it is manifestly clear
that the deduction is allocable to the Company, the Successor Servicer will be instructed to assume
that the deduction is allocable to The Andersons and to the extent that such deduction exceeds the
amount due to The Andersons, any such excess shall be allocated pro-rata (based upon reported
billings) to the Company and Andersons.



(j) The Servicer may not allow an offset of the amount of any security deposit against any
payment under any Lease.



Section 2.03. Records Held as Bailee. With respect to Leases serviced by the Servicer, the
Servicer shall retain all data and records relating directly to, or maintained in connection with,
the servicing of such Leases at the offices of the Servicer, and shall give the Company and the
Agent, or such other Person as the Agent shall direct, access to all such data and records at all
reasonable times, and, while a Servicer Event of Termination shall be continuing, the Servicer
shall, on demand of the Agent, deliver to or at the direction of the Agent all data and records
necessary for the servicing of the Equipment Leases. If the rights of the Servicer shall have been
terminated pursuant to Section 6.01, the Servicer shall, in accordance with Section 6.01(e),
deliver to the Agent or the Successor Servicer all data and records necessary for the servicing of
such Leases and shall otherwise cooperate with the Agent and the Successor Servicer as set forth in
Section 6.01(e).



Section 2.04. Withdrawals from the Collection Account. The Servicer is entitled to make
requests to the Agent for withdrawals from the Collection Account, and the Agent shall pay to the
Servicer from the Collection Account, to the extent there are available funds in the Collection
Account and in accordance with Sections 3.2 or 7.3 of the Security Agreement, as applicable, at the
Servicer’s written direction:




(i) any amounts received from the Equipment Lessees or other parties which the Servicer
has reasonably identified as amounts not constituting payments made with respect to the
Leases or the Railcars;




(ii) all amounts received in respect of Leases and Railcars that relate to the period
prior to the Closing Date; and




(iii) all amounts received in respect of Leases following the Purchase thereof by the
Manager or the Servicer;



provided, however, that the Servicer shall hold any amounts under this Section 2.04 in trust for
the relevant appropriate person and payable to such appropriate person (except with respect to
amounts received in respect of Leases or Railcars following the Purchase thereof by the Manager, in
which case in trust for the Manager and payable to the Manager) upon receipt by the Servicer.



Section 2.05. No Offset. The obligations of the Servicer under this Agreement shall not be
subject to any defense, counterclaim or right of offset which the Servicer has or may have against
the Company or the Agent whether in respect of this Agreement, any Lease or Railcar or otherwise.



Section 2.06. Custody of Lease Files. (a) Pursuant to the Security Agreement, the Company has
pledged the Collateral to the Agent and the Lenders and the Agent will hold such Collateral,
including, without limitation, the Lease Files, for the benefit of Agent and the Lenders subject to
the terms and provisions thereof.



(b) The Servicer, as agent of the Agent and the Company, shall hold and hereby acknowledges
that it shall hold the Lease Files (exclusive of any original counterpart of any Lease constituting
chattel paper held by the Agent or in the possession of the Equipment Lessee under such Lease) and
any other Collateral that it may from time to time receive hereunder as custodian for the Agent, in
accordance with the Servicing Standard as such Servicing Standard applies to servicers acting as
custodial agents. As custodian, the Servicer shall have and perform the following powers and
duties:




(i) hold the Lease Files (exclusive of any original counterpart of any Lease
constituting chattel paper held by the Agent or in the possession of the Equipment Lessee
under such Lease) that it may from time to time receive hereunder on behalf of the Agent and
the Lenders, maintain accurate records pertaining to each Lease to enable it to comply with
the terms and conditions of this Agreement and the Transaction Documents, and maintain a
current inventory thereof;




(ii) with respect to the handling and custody of such Lease Files, implement policies
and procedures in accordance with the Servicing Standard so that the integrity and physical
possession of such Lease Files will be maintained; and




(iii) attend to all details in connection with maintaining custody of such Lease Files
on behalf of the Agent.



(c) In so acting as custodian of such Lease Files, the Servicer agrees further that it does
not and will not have or assert any beneficial ownership interest in the Leases or the Railcars.
Promptly upon the Company’s acquisition thereof, the Servicer, on behalf of the Agent, shall note
in its computer records relating to the Leases and the Railcars that the Company has acquired the
Leases and the related Railcars and all right and title thereto and interest therein and that the
Company has pledged the Railcars and the Leases to the Agent as part of the Collateral.



(d) The Servicer agrees to maintain any Lease Files that it may from time to time receive on
behalf of the Agent at the Servicer’s office located in Maumee, Ohio or to such other offices of
the Servicer as shall from time to time be identified by prior written notice to the Agent.
Subject to the foregoing, the Servicer may temporarily move individual Lease Files (up to an
aggregate number of 10 Lease Files at any given time) or any portion thereof without notice as
necessary to conduct collection and other servicing activities in accordance with the Servicing
Standard; provided, however, that the Servicer will take all action necessary to maintain the
perfection of the Agent’s security interest in the Lease Files and the proceeds thereof. It is
intended that by the Servicer’s agreement pursuant to this Section 2.06, the Agent shall be deemed
to have possession of the Lease Files (to the extent not already held by the Agent pursuant to the
Loan Agreement) for purposes of Section 9-305 of the Uniform Commercial Code of the state in which
the Lease Files are located.



(e) If, in order to conduct collection and other servicing activities in accordance with the
Servicing Standard, it is necessary for the Servicer to possess the original counterpart of any
Lease which is held by the Agent, the Servicer will submit a request for release to the Agent
substantially in the form attached as Exhibit B. Upon receipt of such request for release, the
Agent shall release to the Servicer the original counterpart of such Lease within 7 days; provided,
however, that without the written consent of the Agent shall not have released more than 10 Lease
Files to the Servicer that have not been returned. The Servicer shall immediately return all such
original counterparts to the Agent when the Servicer’s need therefor no longer exists.



Section 2.07. Defaulted Leases. (a) The Servicer shall use its best efforts consistent with
the Servicing Standard to terminate any Lease that it has reasonably determined should be
terminated following a default thereunder, and at the Company’s expense, to repossess the Railcars
subject to such Lease, to accelerate any deferred payments thereunder and to enforce all rights of
the Company with respect thereto. The Servicer shall follow such practices and procedures as are
consistent with the Servicing Standard and otherwise as it shall deem necessary or advisable and as
shall be customary and usual in its servicing of railcar leases and other actions by the Servicer
in order to realize upon such a Lease, which may include its best efforts consistent with the
Servicing Standard to enforce any recourse obligations of Equipment Lessees. If in any enforcement
suit or legal proceeding it shall be held that the Servicer may not enforce a Lease on the ground
that it shall not be a real party in interest or a holder entitled to enforce the Lease, Company
shall, at the Servicer’s direction and at the Company’s expense, take steps to enforce the Lease.



(b) Notwithstanding the foregoing, the Servicer shall take action to terminate any Lease, and
use its best efforts, at the Company’s expense, to repossess the Railcars under such Lease,
immediately after such Lease becomes a Defaulted Lease and shall, in accordance with its credit
policies and procedures, bring an action against the Equipment Lessee for all amounts due under
such Lease and institute proceedings to repossess the Railcars leased thereunder; provided,
however, that the Servicer may delay, for a period not to exceed 180 days, taking any such action
with respect to Railcars comprising not more than 5% of the aggregate Fair Market Value of all
Railcars at any one time under all Defaulted Leases, if it determines, in its reasonable judgment
and in accordance with the Servicing Standard, that such delay is advisable.



Section 2.08. Claims Under Insurance Policies; Insurance Policy. (a) In connection with its
activities as Servicer, the Servicer agrees to present to, on behalf of itself, the Agent, the
Lenders and the Company, any claims to the Insurer under the applicable insurance policy (but in no
event to settle, adjust or compromise such claims without such insured’s prior written consent).



(b) The Servicer shall maintain, at its own expense, an insurance policy, with coverage in
accordance with Section 4.2 of the Security agreement and, appropriate and customary in the
industry with responsible companies on all officers or employees of the Servicer, or other persons
authorized by the Servicer to act in any capacity with regard to the Collateral to handle funds,
money, documents and papers relating to the Leases, and shall deliver to the Agent evidence of such
insurance policy by the Closing Date and once every twelve months thereafter. Any such insurance
policy shall protect and insure the Servicer 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 servicer. No provision of this Section 2.08
requiring such insurance policy shall diminish or relieve the Servicer from its duties and
obligations as set forth in this Agreement. Any such insurance policy shall not be cancelled or
modified without ten days’ prior written notice to the Agent. The Servicer shall promptly, but in
any event within five days after receipt, notify the Agent, upon receipt from the surety of any
termination, cancellation notice or any other notice of a material change to the terms of such
insurance policy.



Section 2.09. Servicing Compensation. As compensation to the Servicer for the performance of
services hereunder, the Servicer shall be entitled to receive a monthly fee equal to 0.1% per annum
of the outstanding principal amount of the aggregate loans under the Loan Agreement as of the
related Payment Date (the “Servicer Fee”), which shall be paid to the Servicer on each Payment Date
in accordance with, and subject to the priority of payment provisions of Section 3.2 and 7.3 of the
Security Agreement.



Section 2.10. Conflicts of Interest. It is expressly understood and agreed that nothing
herein shall be construed to prevent or prohibit the Servicer from providing the same or similar
services to any Person or organization not a party to this Agreement. In particular, the Servicer
shall be entitled to own, lease and operate for its own account railroad cars and equipment
identical to the Railcars serviced hereunder and/or to service such railroad cars or equipment, and
any leases thereof, under a similar servicing agreement with another owner.



Section 2.11. Separate Corporate Existence Covenants. The Servicer recognizes that the Agent
and the Lenders have entered into the Loan Documents on the understanding that the Company is an
entity intended to have its own separate existence independent from that of the Servicer. In
connection therewith, the Servicer 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 Servicer
hereunder) and not hold the Company out to third parties as being liable or responsible for the
debts of the Servicer, (iii) not conduct business in the name of the Company except when acting in
the name of the Company in its capacity as Servicer and it identifies itself as such, (iv) not hold
itself out as the owner of any Lease or any Railcars and take reasonable steps to ensure that
Equipment Lessees and other parties dealing with the Railcars 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 on the Closing Date. In the event that the Servicer’s
consolidated financial statements are required under GAAP to include the Company, the Servicer will
include footnotes therein that disclose the separate existence of the Company and its assets from
the Servicer and the Servicer’s assets.



Article III




Accountings, Statements and Reports




Section 3.01. Quarterly Servicer Report. 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 Servicer
will provide to the Company, a Quarterly Servicer Report (a “Quarterly Servicer Report”),
substantially in the form of Exhibit A hereto with each of the items specified on such form
completed as the case may be.



Section 3.02. Financial Statements; Certification as to Compliance; Notice of Default. The
Servicer 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 Servicer or such other person as may be
acceptable to the Agent, it being understood that delivery to the Agent of the Servicer’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, the Servicer will deliver an Officer’s Certificate
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 Servicer 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 Servicer had performed and observed all of its obligations
under this Agreement, and either (i) stating that based on such review no default by the
Servicer 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 Servicer 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 Servicer Event of Termination, a written notice describing its nature and
period of existence and what action the Servicer 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 Servicer’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 Servicer with the SEC concerning the Servicer;




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




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




Section 3.03. Annual Reports. On or before 120 days after the end of each fiscal year
of the Servicer, the Servicer shall deliver to the Company and the Agent, a report of the
Servicer, certified by the Chief Executive Officer or Chief Financial Officer of the
Servicer, to the effect that such firm has examined certain documents and records relating
to the servicing 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 Servicer 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 the Servicer it is not required to report.



Section 3.04. Delivery of Accountings, Statements and Reports. To the extent that the
Servicer and the Manager 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 Management
Agreement with the delivery of one quarterly report, one set of financial statements, a single
Officer’s Certificate (executed in its capacities as both Servicer and Manager) or a single annual
report, as the case may be.



Section 3.05. Data Downloads. The Initial Servicer shall provide to the Agent from time to
time, at the reasonable request of the Agent, data downloads in a format reasonably acceptable to
the Agent.



Article IV




Representations and Warranties




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




(a) Corporate Existence and Power. The Servicer 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 Servicer 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 Servicer 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 Servicer of this Agreement are
within the Servicer’s powers, have been duly authorized by all necessary action and do not
contravene any applicable Law, the Servicer’s organizational documents or any contractual or
other obligation binding on or affecting the Servicer or any of its assets. The Servicer
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 Servicer’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
the other Transaction Documents, and other than Permitted Liens) upon any of the property or
assets of the Servicer 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 Servicer 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
Servicer is a party has been duly authorized, executed and delivered by the Servicer and
each such Transaction Document is a valid and legally binding agreement of the Servicer,
enforceable against the Servicer 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) Solvency. Both before and after giving effect to the transactions contemplated by
this Agreement, the Servicer is Solvent.




(e) Accuracy of Information. All information heretofore furnished (including, but not
limited to, the Company’s financial statements) by the Servicer 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 Servicer, the Servicer 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 Servicer 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 Servicer, 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 Servicer 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
Servicer with respect to any plan described on Schedule I have been or will be made
when due.




To the Knowledge of the Servicer, 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 or the Leases, or on the Company after the Closing Date.




(h) Employment Matters. The Servicer 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 Servicer, 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 Servicer that primarily works in connection with its
railcar leasing business. To the Knowledge of the Servicer, there are no formal union
organizing campaigns or representation proceedings in process or formally threatened with
respect to any employee of the Servicer that primarily work in connection with its railcar
leasing business, nor are there any existing or, to the Knowledge of the Servicer,
threatened at large labor strikes, work stoppages, organized slowdowns, unfair labor
practice charges, or labor arbitration proceedings affecting employees of the Servicer 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 Servicer, the Servicer is in compliance with all
applicable Environmental Laws related to the Collateral. Except for matters that
have been fully resolved, the Servicer has not received any written communication
from any person or Governmental Authority that alleges that its operations in
connection with the Railcars are not in compliance with applicable Environmental
Laws;




(ii) to the Knowledge of the Servicer, the Servicer 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 Servicer, the Servicer 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
Servicer, threatened against or concerning the Railcars or the Leases.




To the Knowledge of the Servicer, 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.




Section 4.02. Company Representations and Warranties. The Company hereby represents and
warrants to the Servicer, 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 the other
Transaction Documents, 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 Servicer a true, complete and correct copy of the
Loan Documents.



Section 4.03. Requirements upon Breach of Certain Representations and Warranties. (a) Upon
discovery by the Company or the Servicer that any of the representations or warranties with respect
to each Railcar and Lease of the Seller set forth in the Sale Agreement or the Initial Manager set
forth in the Management Agreement was incorrect as of the time made, the party making such
discovery shall give prompt notice to the others, to the Agent and to the Lenders, and the Servicer
shall take such steps as are necessary to cause the Seller or the Initial Manager, as the case may
be, to comply with its obligations set forth in Section      of the Sale Agreement or Section 4.04
of the Management Agreement, as applicable.



(b) If, as a result of any act or failure to act of the Initial Servicer (other than actions
taken as a result of a default on the part of the Equipment Lessee), any Lease shall be terminated
in whole or in part by the Equipment Lessee or amounts due under any Lease shall be reduced or
impaired, other than by reason of a short-term credit granted or allowed by the Initial Servicer in
the ordinary course of business which does not reduce the amount of Rent relating to the relevant
Lease, the Initial Servicer shall be required to Purchase all of the Railcars related to such Lease
by deposit of the Purchase Price into the Collection Account on or prior to the Determination Date
next following the calendar month in which the Initial Servicer’s obligation to purchase such
Railcars arose.



Article V




Servicer Covenants




Section 5.01. Corporate Existence; Status as Initial Servicer; Merger. (a) The Initial
Servicer 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 Servicer to perform its duties under this Agreement, except where the failure to so qualify
would not have a Material Adverse Effect on the Initial Servicer or its ability to perform its
duties hereunder; provided, however, that the Initial Servicer may reincorporate in another state,
if to do so would be in the best interest of the Initial Servicer and would not have a Material
Adverse Effect upon the Company, the Agent or the Lenders and the Initial Servicer has complied
with the requirements set forth in Section 5.01(b).



(b) The Initial Servicer 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 Servicer has merged or the Person
which acquires by conveyance, transfer or lease substantially all the assets of the Initial
Servicer 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 Servicer 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 Servicer 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 Servicer Event of Termination shall have occurred and be continuing, (iv) such
Person shall meet the criteria required of and applicable to a Successor Servicer set forth in
Section 6.01(b) and (v) the Initial Servicer shall have received the prior written consent of the
Agent and the Required Lenders.



Section 5.02. The Servicer Not to Resign; No Assignment. (a) The Servicer 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 Servicer 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 Servicer by the Company, with the approval of the Agent
(acting at the direction of the Required Lenders), and (iii) upon the entering into of amendments
to this Agreement to effect such succession in form reasonably acceptable to the Company and the
Agent (acting at the direction of the Required Lenders).



(b) The Servicer may not assign this Agreement or delegate any of its rights, powers, duties
or obligations hereunder, provided, however, that the Servicer may subservice its duties and
obligations hereunder in accordance with Section 2.01(k) 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
Servicer under this Agreement shall continue until this Agreement shall have been terminated as
provided in Section 8.01, 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 or the Agent of any
provision of the Loan Agreement, the Note or this Agreement.



Section 5.03. Servicer Indemnification. The Servicer shall indemnify and hold harmless each
of the Company, the Agent and the Lenders, 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 made by the
Servicer in this Agreement or in any certificate delivered pursuant thereto;




(b) any breach of or failure by the Servicer to perform any covenant or obligation of
the Servicer set out or contemplated in this Agreement (except for any such breach or
failure which has been fully remedied in accordance with Section 4.03);




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




(d) 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 Servicer 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;




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




(f) the commingling by the Servicer of Equipment Lease Proceeds at any time with any
other funds; or




(g) 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 Servicer to qualify to do business or file any notice of business activity
report or any similar report;



provided, however, that (i) the Servicer 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, (ii) the Servicer 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 (iii) in the event that a
Successor Servicer shall succeed to the duties of the Servicer, the provisions of this Section 5.03
shall not apply to such Successor Servicer unless expressly agreed to thereby. The provisions of
this Section 5.03 shall survive any expiration or termination of this Agreement. Any
indemnification owed to the Indemnified Parties under this Section 5.03 shall be due and payable
within 30 days of the applicable Indemnified Party’s demand therefor.



Article VI




Servicer Termination




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




(i) any failure by the Servicer to deposit into any Lockbox Account or any Collection
Account any payment, transfer or deposit, any Insurance Proceeds or any other amounts paid
under or with respect to any Railcar or Lease to the Servicer or the Company pursuant to
this Agreement, or any failure to deliver any original of any Lease constituting chattel
paper to the Agent (or to such other Person as the Agent may direct), in each case required
to be made hereunder that continues unremedied for a period of two Business Days after the
date such deposit or delivery is required to be made; or




(ii) any failure by the Servicer to submit a Quarterly Servicer Report pursuant to
Section 3.01 that continues unremedied for a period of two Business Days after the earliest
of the date upon which (A) the Agent provides written notification to the Servicer of such
failure, or (B) the date on which an Authorized Officer of the Servicer obtains actual
knowledge of such failure; or




(iii) any representation or warranty made by the Servicer in this Agreement, any other
Transaction Document to which it is a party or in any certificate delivered by the Servicer
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 Authorized Officer obtains actual knowledge of such
failure or (B) the Servicer’s receipt of notice from the Company or the Agent so long as the
Servicer 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




(iv) any failure on the part of the Servicer duly to observe or to perform in any
material respect any covenant or agreement of the Servicer (including the furnishing of
documents) set forth in this Agreement or any other Transaction Document to which it is a
party (including if the Servicer is also acting as the Manager, of its duties as the
Manager), 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 Servicer by the Agent or the Company or (B) the date on which an
Authorized Officer of the Servicer obtains actual knowledge of such failure; or




(v) the entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Servicer 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 Servicer a bankrupt or insolvent, or approving as
properly filed a petition seeking reorganization, arrangement, adjustment or composition of
or in respect of the Servicer under any applicable federal or state law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Servicer 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




(vi) the commencement by the Servicer 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 Servicer 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
Servicer 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 Servicer in
furtherance of any such action; or




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




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




(ix) the Servicer 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 Servicer 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




(x) the Servicer shall cease to be engaged in the railcar servicing business; or




(xi) the failure of the Initial Servicer 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




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




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



then, and in each and every case, so long as a Servicer 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 “Servicer Termination Notice”) then given in writing to the
Servicer, 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 Section 3.2 and 7.3 of the Security Agreement, as
applicable, all amounts owed to the Servicer, including but not limited to the Servicer Fee accrued
up to the effective date specified by the Servicer Termination Notice) and obligations of the
Servicer under this Agreement, which termination shall be effective as of the date of such Servicer
Termination Notice or such later date as such Servicer Termination Notice may specify.



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



(c) On and after the time the Servicer receives a Servicer Termination Notice pursuant to this
Section 6.01 and a Successor Servicer shall be appointed by the Agent acting at the direction of
the Required Lenders), all authority and power of the Servicer under this Agreement shall pass to
the Successor Servicer appointed pursuant to Section 6.02, and, without limitation, such Successor
Servicer is hereby authorized and empowered to execute and deliver, as Servicer 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
Servicer Termination Notice, whether to complete the transfer of the Lease Files and related
documents or otherwise.



(d) Upon becoming Successor Servicer, the Successor Servicer will make arrangements for the
prompt and safe transfer of all Lease Files to it from the terminated Servicer and any other
relevant parties, at the expense of the terminated Servicer.



(e) The terminated Servicer shall cooperate with the Agent and the Successor Servicer in
effecting the termination of the responsibilities and rights of the terminated Servicer hereunder
and the transition of the servicing to the Successor Servicer, including, without limitation, (i)
by transferring to the Successor Servicer for administration by it of all cash amounts that shall
at the time be held by the Servicer for deposit, or have been deposited by the Servicer, in any
Collection Account or any Lockbox Account or thereafter received with respect to Leases (and in
accordance therewith, the Agent shall have the right to access amounts on deposit in any Lockbox
Account), (ii) by assisting the Successor Servicer in enforcing all rights under Insurance Policies
to the extent that they relate to the Leases and the Railcars, (iii) by transferring, at its own
expense, its electronic records relating to such Leases and Railcars to the Successor Servicer in
such electronic form as the Successor Servicer may reasonably request, (iv) by transferring the
related Lease Files and all other records, correspondence and documents relating to the Leases and
Railcars that it may possess to the Successor Servicer in the manner and at such times as the
Successor Servicer shall reasonably request and (v) by responding to all reasonable requests of the
Successor Servicer.



Section 6.02. Successor Servicer to Act; Appointment of Successor; Acting as Manager. (a)
Subject to Section 6.01, on and after the time the Servicer receives a Servicer Termination Notice
pursuant to Section 6.01, and a Successor Servicer shall be appointed by the Agent (acting at the
direction of the Required Lenders), the Successor Servicer, shall be subject to all the
responsibilities, duties and liabilities relating thereto placed on the Servicer by the terms and
provisions hereof; provided, however, that any Successor Servicer shall not (i) be liable for any
acts or omissions of the outgoing Servicer or for any breach by the outgoing Servicer of any of its
representations and warranties contained herein or in any related document or agreement, or (ii) be
required to deliver financial reports pursuant to Section 3.02(h). Subject to the consent
of the Required Lenders, the Successor Servicer may subcontract with another firm to act as
subservicer so long as the Successor Servicer remains fully responsible and accountable for
performance of all obligations of the Servicer. The Successor Servicer shall be entitled to the
Servicer Fee in connection with acting as Servicer hereunder.



(b) The Servicer, the Agent and such Successor Servicer shall take such action, consistent
with this Agreement, as shall be necessary to effectuate any such succession. The Successor
Servicer shall be reimbursed for its respective expenses, if any, incurred in connection with the
assumption of responsibilities of the Successor Servicer. In addition, the Successor Servicer
shall be reimbursed for any fees and expenses paid to any third party legal or other advisors
incurred in connection with the performance of its duties under this Agreement.



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



Section 6.03. Effects of Termination of Servicer. (a) Upon the appointment of the Successor
Servicer, the Servicer shall immediately remit any Rents or other payments that it has received or
receives pursuant to any Lease or otherwise to the Successor Servicer for the benefit of the Agent
and the Company after such date of appointment.



(b) After the delivery of a Servicer Termination Notice and appointment of a Successor
Servicer, the former Servicer shall have no further obligations with respect to the servicing of
the Leases or the enforcement, custody or collection of the Leases, and the Successor Servicer
shall have all of such obligations, except that the former Servicer will transmit or cause to be
transmitted directly to the Successor Servicer for the benefit of the Holders, promptly upon
receipt and in the same form in which received, any amounts held by the former Servicer (properly
endorsed where required for the Successor Servicer to collect them) received as payments upon or
otherwise in connection with the Leases and the Railcars. The former Servicer’s indemnification
obligations pursuant to Section 5.03 will survive the termination of the Servicer hereunder but
will not extend to any acts or omissions of a Successor Servicer.



(c) A Servicer 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 Servicer pursuant
to Section 5.03) other than those relating to the servicing, custody or collection of the Leases
and the Railcars.



(d) The predecessor Servicer shall defend, indemnify and hold the Successor Servicer and any
officers, directors, employees or agents of the Successor Servicer 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 Servicer may sustain in connection with the
claims asserted at any time by third parties against the Successor Servicer which result from (i)
any willful, bad faith or grossly negligent act taken or omission by the predecessor Servicer or
(ii) a breach by the predecessor Servicer of an express obligation of the Servicer hereunder. The
indemnification provided by this Section 6.03(d) shall survive the termination of this Agreement.



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



The Successor Servicer 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 Servicer acting
reasonably and in accordance with information prepared or supplied by a Person other than the
Successor Servicer or the failure of any such Person to prepare or provide such information. The
Successor Servicer 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 Servicer,
or for any inaccuracy or omission in a notice or communication received by the Successor Servicer
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 Servicer. The Successor Servicer shall not be liable for any acts or
omissions of the Servicer occurring prior to such Servicer transfer or for any breach by the
Servicer 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 Servicer
is authorized to accept and rely on all of the accounting, records (including computer records) and
work of the terminated Servicer relating to the Leases and the Railcars (collectively, the
ÒPredecessor Servicer Work ProductÓ) without any audit or other examination thereof, and the
Successor Servicer shall have no duty, responsibility, obligation or liability for the acts and
omissions of the prior Servicer. If any error, inaccuracy, omission or incorrect or non-standard
practice or procedure (collectively, ÒErrorsÓ) exist in any Predecessor Servicer Work Product and
such Errors make it materially more difficult to service or should cause or materially contribute
to the Successor Servicer making or continuing any Errors (collectively, ÒContinued ErrorsÓ), the
Successor Servicer shall have no duty, responsibility, obligation or liability for such Continued
Errors; provided, however, that the Successor Servicer agrees to use its best efforts to prevent
further Continued Errors. In the event that the Successor Servicer becomes aware of Errors or
Continued Errors, the Successor Servicer shall, with the prior consent of the Agent, use its best
efforts 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 Servicer shall be
entitled to recover its costs thereby expended in accordance with 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 and the 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 Servicer, 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. Upon the termination of this Agreement pursuant to this Section
7.01(a), the Servicer shall pay all monies with respect to the Leases and the Railcars held by the
Servicer and to which the Servicer is not entitled to the Company or upon the Company’s order.



(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 and the other Loan Documents by the Agent or the Lenders thereafter shall be subject to
the rights of the Servicer to service the Railcars and the Leases as provided hereunder.



Section 7.02. Amendments. (a) 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.



(b) The Agent may request an Opinion of Counsel, an Officer’s Certificate and such other
opinions, certificates and documents as it deems advisable in connection with any proposed
amendment of this Agreement. The Agent may, but shall not be obligated to, execute and deliver any
such amendment which affects that Agent’s rights, powers, immunities or indemnifications 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; (b) if to the Servicer, 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
the address 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 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 Servicer agrees that, on reasonable
prior notice, it will permit any representative of the Agent or the Company, during the Servicer’s
normal business hours, to examine all the Lease Files, books of account, records, reports and other
papers of the Servicer relating to the Railcars and the Leases and related documents, 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 Servicer 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 the Agent or the Company of any right under this Section 7.06 shall be borne by the Initial
Servicer, except that only the first examination in any year by the Agent will be at the Initial
Servicer’s expense (unless there has occurred and is continuing a Servicer Event of Termination (if
the Manager is also the Servicer), a Servicer Event of Termination (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 Servicer)), or if a Successor Servicer other than
an Affiliate of the Initial Servicer is then acting as Servicer, 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 Management Agreement.



Section7.07. 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.



Section7.08. 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 Servicer 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 Servicer consents to such assignment
and grant and further agrees that all representations, warranties, covenants, and agreements of the
Servicer made herein shall also be for the benefit of and inure to the Agent.



Section 7.11. Servicing Agreement to Control. To the extent of any inconsistency between the
provisions of this Servicing Agreement and the Management Agreement as to the obligations or
responsibilities of the Servicer to service or administer the Leases, the provisions of this
Servicing Agreement shall control.



Section 7.12. 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 7.13. No Bankruptcy Petition. The Servicer hereby covenants and agrees for the
benefit of each of the parties hereto, the Agent and the Lenders that, 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.
The Company hereby covenants and agrees for the benefit of the Agent and the Lenders, that, prior
to the date which is one year and one day after the payment in full of all obligations of the
Servicer and the Company, it will not institute against the Servicer or join any other Person in
instituting against the Servicer 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 7.13 shall survive the termination of 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.



[Signature Page to Follow]



2



In Witness Whereof, the Company and the Servicer 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



3




Servicing Agreement




Schedule I




Servicer 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




The Andersons, Inc.

Quarterly Servicer Report




Pursuant to Section 3.01 of the Servicing Agreement dated as of December 29, 2005, between The
Andersons Rail Operating I LLC (the “Company”) and The Andersons, Inc. (as
Servicer) please find set forth below the Quarterly Servicer Report as of [Accounting Date]:



Exhibit B

 Form of Request for Release




Re: Servicing Agreement, dated as of December 29, 2005



(the “Servicing Agreement”), by and among




The Andersons Rail Operating I LLC,




and




The Andersons, Inc., as the servicer (the “Servicer”),




Pursuant to Section 2.06(e) of the above-referenced Servicing Agreement in connection with the
Lease Files indicated on Schedule A hereto, we request the release of the original counterparts
held by the Agent for the following purpose (check one):



	 	 	 
	     

     

     

	 	(a) in order to conduct collection and other servicing activities;

(b) pay off or other termination; or

(c) other (provide explanation).






The Servicer certifies that after giving effect to the release of the Lease Files listed on
Schedule A, the Servicer will not be in possession of more than 10 Lease Files.



The Servicer hereby certifies that it shall hold and retain possession of such original
counterparts in trust for the Agent solely for the purposes set forth above. The Servicer hereby
agrees that it shall not cause or permit the original counterparts to be subject to, or encumbered
by, any claim, liens, security interest, charges, writs of attachment or other impositions and the
Servicer shall not assert or seek to assert any claims or rights of set-off to or against the
original counterparts. The Servicer shall return all original counterparts when the need therefor
no longer exists. The Servicer shall keep the original counterparts separate and distinct from all
other property in the Servicer’s possession, custody or control.




	 	 	 	The Andersons, Inc., as Servicer






	 	 	 	By:






Name:


Title:



5



Documents returned to the Agent on      ,      .



SIEMENS FINANCIAL SERVICES, INC., as Agent




By:      

Name:

Title:



6




Schedule A

to

Request for Release





7