EX-10.17






$40,950,000




TERM LOAN AGREEMENT




Between




THE ANDERSONS RAIL OPERATING I LLC,




as Borrower,




THE LENDERS NAMED HEREIN,




and




SIEMENS FINANCIAL SERVICES, INC.,




as Agent and Lender




Dated as of




December 29, 2005




	 	 	 	 	 
	W I T N E S S E T H: 1
ARTICLE I. DEFINITIONS
	 	 	1	 
	ARTICLE II. AMOUNT AND TERMS OF THE LOANS
	 	 	12	 
	ARTICLE III. CONDITIONS OF LENDING
	 	 	16	 
	ARTICLE IV. REPRESENTATIONS AND WARRANTIES
	 	 	28	 
	ARTICLE V. COVENANTS OF THE BORROWER
	 	 	25	 
	ARTICLE VI. EVENTS OF DEFAULT
	 	 	32	 
	ARTICLE VII. AGENCY
	 	 	34	 
	ARTICLE VIII. MISCELLANEOUS
	 	 	38	 
	SCHEDULE A            ADMINISTRATIVE DETAILS
SCHEDULE B            EXCEPTION REPORT
	 	 	 	 
	ADDENDUM I            SCHEDULE OF PRINCIPAL PAYMENTS
	 	 	 	 






EXHIBIT A — Form of Promissory Note



EXHIBIT B — Form of Pay Proceeds Letter



EXHIBIT C — Form of Officer’s Certificate



EXHIBIT D — Form of Notice of Assignment



EXHIBIT E — Form of Transfer Agreement



1




TERM LOAN AGREEMENT, dated as of December 29, 2005, among THE ANDERSONS RAIL OPERATING
I LLC, a Delaware limited liability company (the “Borrower”), the several banks and other financial
institutions or entities from time to time parties to this Agreement (the “Lenders”) and
SIEMENS FINANCIAL SERVICES, INC. (in its capacity as Agent for the Lenders hereunder together with
its successors and permitted assigns in such capacity, the “Agent”).



W I T N E S S E T H:




WHEREAS, the Borrower desires to acquire the Equipment and related Equipment Leases described
in Schedule A to the Security Agreement;



WHEREAS, the Borrower wishes to borrow from the Lenders in order to facilitate the acquisition
of the Equipment and related Equipment Leases described in Schedule A to the Security
Agreement in accordance with the terms of the Transfer Documents.



NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants contained
herein, the parties hereto agree as follows:



ARTICLE I.




DEFINITIONS




SECTION 1.1. Definitions. The following terms shall have the following meanings for
the purposes of this Agreement:



“AAR” means the Association of American Railroads.



“Affiliate” of any Person means any other Person, which directly or indirectly controls, or is
controlled by, or is under common control with, such Person. The term “control” means the
possession, directly or indirectly, of the power to direct or cause the direction of the management
and policies of a Person, whether through the management and policies of a Person, the ownership of
voting securities, by contract or otherwise, and the term “controlled” shall have a meaning
correlative to the foregoing.



“Agent” has the meaning specified in the initial paragraph of this Agreement.



“Agreement” means this Term Loan Agreement, together with all Exhibits and Schedules attached
hereto, as the same may be amended, supplemented or modified, from time to time.



“Appraisal” means a written appraisal of the Fair Market Value of the Equipment conducted by
an independent third party appraiser selected by Borrower and reasonably acceptable to the Agent.



“Appraisal Date” means, with respect to any Appraisal, the date of such Appraisal.



“Asset Sale” means any Disposition of any Collateral by the Borrower (including, without
limitation, in connection with a 1031 Transaction) other than as a result of a Manager Buyback or a
Servicer Buyback.



“Assignor” has the meaning assigned to it in Section 8.5(c).



“Benefited Lenders” has the meaning assigned to it in Section 8.13.



“Borrower” has the meaning specified in the initial paragraph of this Agreement.



“Business Day” means any day of the year other than a Saturday, Sunday or a holiday on which
banks are required or authorized by law to close in the State of New Jersey.



“Car Mark Agreement” means the Car Mark Agreement, dated as of December 29, 2005, between the
Borrower and The Andersons.



“Cash Collateral Account” has the meaning assigned to it in the Security Agreement.



“Cash Collateral Account Blocked Account Agreement” means the Account Control Agreement, dated
as of December 29, 2005, among the Borrower, the Agent and Fifth Third Bank.



“Casualty Loss” means, with respect to any Item of Equipment, such Item of Equipment is
destroyed, lost, stolen, irreparably damaged, or missing for a period in excess of thirty 30 days,
taken by any governmental entity (including without limitation condemnation, confiscation,
requisition, taking of title or use by any governmental entity).



“Closing Date” means the date the Loans are disbursed under this Agreement.



“Code” means the Internal Revenue Code of 1986, as amended from time to time, and rulings and
regulations issued thereunder.



“Collateral” has the meaning specified in the Security Agreement.



“Collection Account” has the meaning specified in the Security Agreement.



“Collection Account Blocked Account Agreement” means the Lockbox and Account Control
Agreement, dated as of December 29, 2005, among the Borrower, the Agent and Fifth Third Bank.



“Commitment” means, for each Lender, the obligation of such Lender to make a Loan to the
Borrower on the Closing Date in an amount equal to the amount set forth opposite the name of such
Lender on the signature pages hereof.



“Concentration Limits” means the limitations set forth in Section 5.1(u).



“Debt Service Coverage Ratio”: means, for the calendar quarter immediately succeeding the
applicable Determination Date, the ratio of (a) the Eligible Lease Receivables for such calendar
quarter to (b) the scheduled payments of principal and interest payable by the Borrower in respect
of the Loans for such calendar quarter.



“Default” means the occurrence and continuance of an event or condition which with giving of
notice or the passage of time or both, would constitute an Event of Default.



“Default Rate” has the meaning assigned to it in Section 2.4(e).



“Determination Date” means of March 31, June 30, September 30 and December 31 of each calendar
year.



“Disposition” means any sale, lease, sale and leaseback, assignment, conveyance, transfer or
other disposition; and the term “Dispose” and “Disposed” shall have correlative meaning.



“Dollars” and “$” means the lawful and freely transferable currency of the United States of
America.



“Eligible Assignee” means (i) a commercial bank, savings and loan institution, insurance
company or financial institution organized under the laws of the United States, or any State
thereof, (ii) a commercial bank organized under the laws of any other country which is a member of
the OECD, or a political subdivision of any such country, provided that such bank is acting through
a branch or agency located in the United States, the Cayman Islands or the country in which it is
organized or another country which is also a member of the OECD, (iii) the central bank of any
country which is a member of the OECD, and (iv) a finance company, insurance company or other
financial institution or a fund which is engaged in making, purchasing or otherwise investing in
commercial loans in the ordinary course of its business, is doing business in the United States and
is organized under the laws of the United States, or any State thereof, or under the laws of any
member country of the OECD.



“Eligible Item of Equipment” means, as of any date of determination, an Item of Equipment that
satisfies the representations and warranties with respect to Items of Equipment contained in
Section 3.02 of the Sale Agreement (with respect to Items of Equipment transferred to the Borrower
under the Sale Agreement) and Section 4.03 of the Management Agreement (with respect to all other
Items of Equipment) as of the immediately preceding Payment Date.



“Eligible Lease” means, as of any date of determination, an Equipment Lease that satisfies
each of the representations and warranties with respect to Equipment Leases contained in Section
4.1(o) of this Agreement and Section 3.02 of the Sale Agreement (with respect to Equipment Leases
transferred to the Borrower under the Sale Agreement) and Section 4.03 of the Management Agreement
(with respect to all other Equipment Leases) as of the immediately preceding Payment Date.



“Eligible Lease Receivables” means, for any calendar quarter, the aggregate of the scheduled
payments of rent under each Eligible Lease other than those Eligible Leases as to which rent or
other amounts payable are overdue by more than 120 days.



“Environmental Claim” shall mean any claim alleging any damage to the environment or violation
of any Environmental Law.



“Environmental Laws” shall mean any federal, state, provincial, local, or foreign statute,
law, regulation, ordinance, rule, judgment, order, decree, permit, concession, grant, franchise,
license, agreement or governmental restriction relating to pollution and the protection of the
environment or the release of any materials into the environment, including but not limited to any
of the foregoing related to Hazardous Commodities or wastes, air emissions and discharges to waste
or public systems.



“Equipment” has the meaning assigned to it in the Security Agreement.



“Equipment Lease Documents” means, with respect to each Equipment Lease, such Equipment Lease
together with all other the agreements, documents and instruments executed in connection with such
Equipment Lease.



“Equipment Lease Proceeds” all payments due and to become due under any Equipment Lease,
whether as contractual obligations, damages, casualty payments, insurance proceeds or otherwise.



“Equipment Leases” mean all right, title, interest, claims and demands of the Borrower in, to
and under each and every lease or other agreement, including the leases more fully described on
Schedule A to the Security Agreement (whether or not such lease is in writing or is for a
term certain, including, without limitation, per diem leases) and all Replacement Leases now or
hereafter entered into relating to the Equipment, including any extensions of the term of every
such lease, all of Borrower’s rights under any such lease to make determinations, to exercise any
election (including, but not limited to, election of remedies) or option or to give or receive any
notice, consent, waiver or approval.



“Equipment Lessees” means the lessees under the Equipment Leases.



“ERISA” means the Employee Retirement Income Security Act of 1974, any successor statute, and
all rules and regulations promulgated thereunder.



“ERISA Event” means the institution of any action or proceeding against the Borrower by the
PBGC or a Plan to enforce against the Borrower any (i) liability for failure to make contributions
to a Plan which are required under Section 412 of the Code or Section 302 of ERISA, (ii) liability
under Title IV of ERISA with respect to the termination of any Plan, or (iii) liability with
respect to the withdrawal or partial withdrawal from any Plan.



“Event of Default” has the meaning assigned to it in Section 6.1.



“Fair Market Value” has the meaning assigned to it in the Security Agreement.



“Federal Funds Rate” means, for any period, a fluctuating interest rate per annum equal for
each day during such period to the weighted average of the rates on overnight federal funds
transactions with members of the Federal Reserve System arranged by federal funds brokers, as
published for such day (or, if such day is not a Business Day, for the next preceding Business Day)
by the Federal Reserve Bank of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day as of 11:00 a.m. New York time on such
transactions received by the Agent from three federal funds brokers of recognized standing selected
by it.



“GAAP” means at any time the generally accepted United States accounting principles at such
time.



“Governmental Authority” means any federal, state, provincial, municipal or other governmental
or quasi-governmental department, commission, board, bureau, agency, authority or instrumentality,
or any court or administrative bureau, in each case whether of the United States, any of its
possessions or territories, or of any foreign nation or any jurisdiction thereof, or, with respect
to any Person, any arbitration, tribunal or non-governmental authority to whose jurisdiction such
Person has consented.



“Hazardous Commodities” shall mean the following commodities: (a) any substance that is listed
as a “hazardous waste” pursuant to 42 U.S.C. Section 6901 et seq. or exhibits one or more of the
characteristics of “hazardous waste” described in regulations promulgated pursuant to 42 U.S.C.
Section 6901 et seq.; (b) any substance that is a “hazardous substance” under the definition set
forth in 42 U.S.C. Section 9601(14); (c) any substance contained on a list of “extremely hazardous
substances” pursuant to 42 U.S.C. Section 11002(a)(2); (d) any petroleum product (other than solid
plastic products); (e) any radioactive material; (f) asbestos; (g) polychlorinated biphenyls; (h)
any substance that is a “pesticide” under the definition set forth in 7 U.S.C. Section 136(u); (i)
any chemical substance or living organism regulated under 21 U.S.C. Chapter 9 (the Federal Food,
Drug and Cosmetic Act) which is capable of having an acute or chronic toxic effect upon any species
of living organism; (j) any Municipal Waste referred to in, or any K grade or W grade commodities
listed in Appendix A to, Car Service Rule 14; (k) any other substance, product, liquid, waste,
pollutant, chemical, contaminant, insecticide, pesticide, gaseous or solid matter, organic or
inorganic matter, fuel, micro-organism, ray, odor, radiation, energy, vector, plasma, constituent
or material which (i) is or becomes listed, regulated or addressed under any Environmental Law, or
(ii) is, or is deemed to be, alone or in any combination, hazardous, hazardous waste, toxic, a
pollutant, a deleterious substance, a contaminant or a source of pollution or contamination under
any Environmental Law applicable to railcars operating in Canada.



“Indebtedness” means, with respect to any Person, without duplication, (i) all obligations of
such Person for borrowed money or with respect to deposits or advances of any kind, (ii) all
obligations of such Person evidenced by bonds, debentures, equipment trust certificates, notes or
similar instruments, (iii) all obligations of such Person upon which interest charges are
customarily paid, (iv) all obligations of such Person under conditional sale or other title
retention agreements relating to property or assets purchased by such Person, (v) all obligations
of such Person issued or assumed as the deferred purchase price of property or services, (vi) all
Indebtedness of others secured by (or for which the holder of such indebtedness has an existing
right, contingent or otherwise, to be secured by) any Lien on property owned or acquired by such
Person, whether or not the obligations secured thereby have been assumed but only up to the lesser
of the value of the property at the time subject to such Liens and the amount of such Indebtedness,
(vii) all guarantees by such Person of Indebtedness of others, (viii) all capital lease obligations
of such Person, (ix) all obligations of such Person in respect of interest rate protection
agreements, foreign currency exchange agreements or other interest or exchange rate hedging
arrangements, (x) any sale-leaseback or similar arrangement and (xi) all obligations of such Person
as an account party in respect of letters of credit and bankers’ acceptances. The Indebtedness of
any Person shall include the Indebtedness of any partnership in which such Person is a general
partner (unless such Indebtedness in non-recourse to such general partner).



“Indemnified Party” has the meaning assigned to it in Section 8.8.



“Independent Manager” has the meaning set forth in the Borrower’s Limited Liability Company
Agreement, dated as of December 29, 2005, as the same may be amended, supplemented or otherwise
modified from time to time.



“Interest Rate” means 5.9108%.



“Investment Grade” means, with respect to any Person, that such Person or the long-term
unsecured, unguaranteed indebtedness issued by such Person has been Rated “BBB-” or better by S&P
or “Baa3” or better by Moody’s.



“Item of Equipment” has the meaning assigned to it in the Security Agreement.



“Lenders” has the meaning assigned to it in preamble hereto.



“Lien” means any mortgage, pledge, security interest, encumbrance, lien or charge of any kind.



“Loan” means any loan made by any Lender pursuant to this Agreement.



“Loan Documents” mean this Agreement, the Security Agreement, the Notes, the Pledge Agreement,
the Cash Collateral Blocked Account Agreement, the Collection Account Blocked Account Agreement,
the Lockbox Agreement and any certificates, notices and documents executed and delivered in
connection herewith or therewith.



“Loan to Value Ratio” means, as of any Appraisal Date, the ratio, expressed as a percentage of
(i) the outstanding principal balance of the Loan to (ii) the sum of (A) the aggregate Fair Market
Value of the Equipment (not subject to Casualty Loss) set forth in the Appraisal issued on such
Appraisal Date and (B) the aggregate amount on deposit in the Cash Collateral Account on such
Appraisal Date that relates to the Net Cash Proceeds of permitted Asset Sales and Recovery Events;
provided, however that (i) the Fair Market Value of any Equipment with respect to which the
Agent does not have a valid, perfected first-priority Lien in the United States and Canada (other
than Permitted Liens) on such Appraisal Date shall be excluded from the value of the Equipment in
determining the Loan to Value Ratio and (ii) amounts on deposit in the Cash Collateral Account
shall be excluded from the determination of the Loan to Value Ratio at such time as the Agent fails
to have a valid, perfected first-priority Lien on the Cash Collateral Account.



“Lockbox Account” has the meaning assigned to it in the Security Agreement.



“Lockbox Agreement” means the Authorization Form for Treasury Services, dated December 29,
2005, between the Borrower and Fifth Third Bank.



“Management Agreement” means the Management Agreement, dated the date hereof, among The
Andersons and the Borrower, as the same may be amended, supplemented or modified from time to time.



“Mangaer” means The Andersons or any other Person appointed as manager under the Management
Agreement from time to time.



“Manager Buyback” has the meaning assigned to it in Section 2.7(c).



“Material Adverse Effect” means (i) a materially adverse effect on the business, condition
(financial or otherwise), operations, performance or properties of the Borrower, or (ii) a material
impairment of the ability of the Borrower to perform its obligations under or to remain in
compliance with the Loan Documents.



“Maturity Date” means January 15, 2013.



“Moody’s” means Moody’s Investors Service, Inc.



“Net Cash Proceeds” means the proceeds thereof in the form of cash and cash equivalents
(including any such proceeds received by way of deferred payment of principal pursuant to a note or
installment receivable or purchase price adjustment receivable or otherwise, but only as and when
received) of any Asset Sale or Recovery Event, net of attorneys’ fees, accountants’ fees and other
customary fees and expenses actually incurred in connection therewith and net of taxes paid or
reasonably estimated to be payable as a result thereof (after taking into account any available tax
credits or deductions and any tax sharing arrangements.



“Non-Excluded Taxes” has the meaning assigned to it in Section 8.22(a).



“Non-U.S. Lender” has the meaning assigned to it in Section 8.22(c).



“Note(s)” has the meaning assigned to it in Section 2.5.



“Obligations” has the meaning assigned to it in Section 8.13.



“OECD” means the Organization for Economic Cooperation and Development.



“Other Taxes” means any and all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or from
the execution, delivery or enforcement of, or otherwise with respect to, this Agreement or any
other Loan Document.



“Participant” has the meaning assigned to it in Section 8.5(b).



“Pay Proceeds Letter” has the meaning assigned to it in Section 2.2.



“Payment Date” means the fifteenth day of each calendar month, commencing with February 15,
2006.



“Payment Office”: the office specified from time to time by the Agent as its payment office
by notice to the Borrower and the Lenders.



“PBGC” shall mean the Pension Benefit Guaranty Corporation or any entity succeeding to any or
all of its functions under ERISA.



“Per Diem Lease” shall mean an Equipment Lease in which the Equipment Lessee pays an amount
based on the miles traveled and the use of the Equipment, although the Equipment Lessee may have
free use of the Equipment while the Equipment is on a Equipment Lessee’s railroad.



“Permitted Affiliate Arrangements” means (i) the Management Agreement, the Servicing Agreement
or such other management, lease administration, auditing and accounting, secretarial and other
administrative and operational services to the Borrower at rates reasonably determined by the
Borrower’s managing member to be no less favorable to the Borrower than the rates which could be
obtained for similar services from independent third parties, (ii) the Car Mark Agreement and (iii)
the inclusion of the Borrower as an insured under a policy of insurance obtained by the Servicer or
its subsidiaries with an insurance company which policy shall be on terms reasonably determined by
the Borrower’s managing member to be no less favorable to the Borrower than the terms at which a
similar policy could be obtained directly from independent third parties.



“Permitted Liens” means (a) materialmens’, mechanics’, carriers’, repairmens’, employees’ or
other similar Liens arising in the ordinary course of business, other than Liens for amounts due
and owing, that individually or in the aggregate do not detract from the value of the property
subject thereto or affected thereby, (b) Liens for current taxes, of any kind, not yet due and
payable or that are being contested in good faith by appropriate proceeding for which adequate
reserves have been established in accordance with GAAP, so long as enforcement thereof has been
stayed and such proceedings do not involve any material risk of forfeiture, loss or sale of any
Items of Equipment and (c) statutory Liens arising or incurred in the ordinary course of business
by operation of law for which payment is not yet due and payable or that are being contested in
good faith by appropriate proceedings and for which adequate reserves have been established in
accordance with GAAP.



“Person” includes any individual, business trust, partnership, limited liability company,
limited liability partnership, joint venture, firm, corporation, association, joint stock company,
trust or other enterprise, or any government or political sub-division or agency, department or
instrumentality thereof.



“Plan” means any employee pension benefit plan of the Borrower subject to the provisions of
Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA, and in respect of which the
Borrower, or any trade or business that for purposes of Title IV of ERISA is a member of the
Borrower’s controlled group, or under common control with the Borrower, within the meaning of
Section 414 of the Code, is (or, if such plan were terminated, would under Section 4069 of ERISA be
deemed to be) an “employer” as defined in Section 3(5) of ERISA.



“Pledge Agreement” means the Pledge Agreement, dated the date hereof, executed and delivered
by The Andersons in favor of the Agent and the Lenders, as the same may be amended, supplemented or
otherwise modified from time to time.



“Pledged Collateral” has the meaning set forth in the Pledge Agreement.



“Prime Rate” means the rate of interest per annum adopted and announced from time to time by
J.P. Morgan Chase Bank as its prime commercial lending rate at its primary lending office in the
United States.



“Qualified Intermediary” has the meaning set forth in 26 C.F.R. 1.1031(k)-1(g)(4).



“Rated” means, with respect to any Person, the rating most recently published, issued or
announced by S&P or Moody’s, as the case may be.



“Recovery Event” means any settlement of or payment in respect of Casualty Loss.



“Register” has the meaning assigned to it in Section 8.5(d).



“Registrar General” has the meaning assigned to it in Section 3.1(c).



“Reinvestment Deferred Amount” means with respect to any Asset Sale or Recovery Event, the
aggregate Net Cash Proceeds received by the Borrower or deposited with a Qualified Intermediary (in
the case of a 1031 Transaction) in connection therewith that are not applied to prepay the Loans
pursuant to Section 2.7(b) as a result of the delivery of a Reinvestment Notice.



“Reinvestment Notice” means a written notice executed by a Responsible Officer stating that
no Default or Event of Default has occurred and is continuing and that the Borrower intends and
expects to use all or a specified portion of the Net Cash Proceeds of an Asset Sale or Recovery
Event to acquire or repair assets useful in its business.



“Reinvestment Prepayment Amount” means with respect to any Asset Sale or Recovery Event, the
Reinvestment Deferred Amount relating thereto less any amount expended prior to the relevant
Reinvestment Prepayment Date to acquire assets useful in the Borrower’s business.



“Reinvestment Prepayment Date” means with respect to any Asset Sale or Recovery Event, the
earlier of (a) the date occurring six months after such Asset Sale or Recovery Event and (b) the
date on which the Borrower shall have determined not to, or shall have otherwise ceased to, acquire
or repair assets useful in the Borrower’s business with all or any portion of the relevant
Reinvestment Deferred Amount.



“Replacement Unit” has the meaning assigned to it in the Security Agreement.



“Replacement Lease” has the meaning assigned to it in the Security Agreement.



“Required Lenders” means the holders of in excess of 50% of the outstanding principal amount
of the Loans; provided, however any principal amount of the Loans held by an Affiliate of
the Borrower shall not be included in the determination of the Required Lenders.



“Reserve Amount” shall mean $2,631,389.16.



“Responsible Officer” means any one of the President, the Chief Financial Officer, the
Treasurer, the Assistant Treasurer, the Secretary or the Assistant Secretary of the Servicer or any
Person instructed by the Servicer to have responsibility over and to administer this transaction or
any aspect thereof; provided, that with respect to certifying financial statements,
“Responsible Officer” shall not include the Secretary or Assistant Secretary of the Servicer.



“Rolling Stock” means standard gauge railroad rolling stock, other than passenger equipment or
work equipment, used or intended for use in connection with interstate commerce, excluding,
however, railroad rolling stock scrapped or intended to be scrapped.



“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.



“Sale Agreement” means the Sale Agreement, dated as of December 29, 2005, between the
Borrower, as buyer, and The Andersons, as seller.



“Securities Act” means the Securities Act of 1933, as amended from time to time.



“Security Agreement” means the Security Agreement, dated the date hereof, made by the Borrower
in favor of the Lenders and the Agent, as the same may be amended, supplemented or modified from
time to time.



“Seller Buyback” has the meaning assigned to it in Section 2.7(c).



“Servicer” means The Andersons or any other Person appointed servicer under the Servicing
Agreement from time to time.



“Servicer Buyback” has the meaning assigned to it in Section 2.7(c).



“Servicing Agreement” means the Servicing Agreement, dated the date hereof, among The
Andersons and the Borrower, as the same may be amended, supplemented or modified from time to time.



“Solvent” shall mean with respect to any Person that as of the date of determination both
(a)(i) the then fair saleable value of the property of such Person is (A) greater than the total
amount of liabilities (including contingent liabilities) of such Person and (B) not less than the
amount that will be required to pay the probable liabilities on such Person’s then existing debts
as they become absolute and matured considering all financing alternatives and potential asset
sales reasonably available to such Person, (ii) such Person’s capital is not unreasonably small in
relation to its business or any contemplated or undertaken transaction, and (iii) such Person does
not intend to incur, or believe (nor should it reasonably believe) that it will incur, debts beyond
its ability to pay such debts as they become due; and (b) such Person is “solvent” within the
meaning given that term and similar terms under applicable laws relating to fraudulent transfers
and conveyances. For purposes of this definition, the amount of any contingent liability at any
time shall be computed as the amount that, in light of all of the facts and circumstances existing
at such time, represents the amount that can reasonably be expected to become an actual or matured
liability.



“STB” has the meaning assigned to it in Section 3.1(c).



“Subsidiary” means as to any Person, a corporation, partnership, limited liability company or
other entity of which shares of stock or other ownership interests having ordinary voting power
(other than stock or such other ownership interests having such power only by reason of the
happening of a contingency) to elect a majority of the board of directors or other managers of such
corporation, partnership or other entity are at the time owned, or the management of which is
otherwise controlled, directly or indirectly through one or more intermediaries, or both, by such
Person.



“1031 Exchange Agreement” has the meaning assigned to it in Section 5.1(m).



“1031 Proceeds” has the meaning assigned to it in Section 5.1(m).



“1031 Transaction” shall mean a like-kind exchange transaction in accordance with Section 1031
of the Code which shall be in all respects acceptable to the Agent.



“The Andersons” means The Andersons, Inc., an Ohio corporation.



“Transaction Documents” means, collectively, the Loan Documents, the Transfer Documents, the
Servicing Agreement, the Management Agreement and the Car Mark Agreement.



“Transfer Agreement” means a transfer agreement between a transferring Lender and a Transferee
substantially in the form of Exhibit E hereto.



“Transfer Documents” means, collectively, (i) the Sale Agreement and (ii) the Bill of Sale and
Assignment Agreement, dated as of December 29, 2005, made by The Andersons in favor of the
Borrower.



“Transferee” means a transferee permitted under Section 8.5(c).



“UCC” means the Uniform Commercial Code in effect in the State of Delaware, unless otherwise
specified, as amended from time to time.



“UMLER” means the Universal Machine Language Equipment Register maintained by the AAR.



“Utilization Rate” shall mean a fraction (expressed as a percentage) the numerator of which is
equal to the total number of units of Equipment constituting Collateral which are subject to an
Eligible Lease and the denominator of which is equal to the total number of units of Equipment
constituting Collateral.



SECTION 1.2. Other Interpretive Provisions. (a) Except as otherwise specified
herein, all references herein (i) to any Person shall be deemed to include such Person’s successors
and permitted assigns, (ii) to any applicable law defined or referred to herein shall be deemed
references to such applicable law or any successor applicable law as the same may have been or may
be amended or supplemented from time to time and (iii) any agreement or document shall be deemed
references to such agreement or document as amended, supplemented, restated or otherwise modified
and in effect from time to time.



(b) When used in this Agreement, (i) the words “this Agreement,” “herein,” “hereof” and
“hereunder” and words of similar import shall refer to this Agreement as a whole (together with all
Schedules and Exhibits) and not to any provision of this Agreement unless otherwise specified and
(ii) the words “Article,” “Section,” “Schedule” and “Exhibit” shall refer to Articles and Sections
of, and Schedules and Exhibits to, this Agreement unless otherwise specified.



(c) Whenever the context so requires, the neuter gender includes the masculine or feminine,
the masculine gender includes the feminine, and the singular number includes the plural, and vice
versa.



(d) Any item or list of items set forth following the word “including,” “include” or
“includes” is set forth only for the purpose of indicating that, regardless of whatever other items
are in the category in which such item or items are “included,” such item or items are in such
category, and shall not be construed as indicating that the items in the category in which such
item or items are “included” are limited to such items or to items similar to such items.



(e) The table of contents and the captions to Articles, Sections and subsections of, and
Schedules and Exhibits to, this Agreement are included for convenience of reference only and shall
not constitute a part of this Agreement for any other purpose or in any way affect the meaning or
construction of any provision of this Agreement.



(f) Except as otherwise specified therein, terms that are defined herein that are used in any
other Loan Documents, certificates, opinions and other documents delivered in connection herewith
shall have the meanings ascribed to them herein and such documents shall be otherwise interpreted
in accordance with the provisions of this Section 1.2.



(g) References to days shall refer to calendar days unless Business Days are expressly
specified.



ARTICLE II.




AMOUNT AND TERMS OF THE LOANS




SECTION 2.1. The Loans. Upon the terms and subject to the conditions hereinafter set
forth, each Lender severally and not jointly agrees to make a Loan to the Borrower in a single
advance on the date of this Agreement in an amount equal to such Lender’s Commitment, which such
Loan, when aggregated with all other Loans made by all Lenders, shall be in an aggregate amount
equal to $40,950,000.



SECTION 2.2. Making the Loan. The Loans shall be made on at least two (2) Business
Days’ written, telegraphic, telex or telecopy notice from the Borrower to the Agent, specifying the
date (which shall be a Business Day) thereof. Not later than 11:00 A.M. (New York City time) on
the date of such Loans, each Lender will make available to the Agent at the Agent’s Account by wire
transfer of immediately available funds in an aggregate amount equal to its Commitment. Upon
receipt by the Agent of such funds and upon fulfillment of the conditions set forth in Article III,
the Agent will make such funds available to the Borrower in accordance with the payment
instructions of the Borrower (the “Pay Proceeds Letter”) delivered to the Agent, in the form set
forth in Exhibit B.



SECTION 2.3. Repayment of Loans. (a) On each Payment Date, the Borrower shall pay to
the Agent at the office specified from time to time by the Agent in immediately available funds for
account of the Lenders, the amount of principal due on such Payment Date as set forth on Addendum I
hereto together with accrued interest on the unpaid outstanding principal balance of the Loans.



(b) On the Maturity Date, the Borrower promises to pay to the Agent for the account of each
Lender, the entire outstanding principal balance of the Loans on such date, plus all accrued and
unpaid interest in accordance with Section 2.4 and all other amounts then due and owing to the
Lenders hereunder and under the other Loan Documents.



SECTION 2.4. Interest. (a) Interest on the unpaid outstanding principal balance of
the Loans shall accrue in arrears at a rate per annum equal to the Interest Rate.



(b) On January 15, 2006, the Borrower shall pay to the Agent at the Agent’s Account in
immediately available funds for the account of the Lenders, in arrears, an amount equal to
$112,734.34, which represents interest on the unpaid outstanding principal balance of the Loans on
such date.



(c) On each Payment Date, the Borrower shall pay to the Agent at the Agent’s Account in
immediately available funds for the account of the Lenders, accrued interest on the unpaid
outstanding principal balance of the Loans.



(d) All calculations of applicable interest under this Section 2.3 shall be made for actual
days elapsed on the basis of a year consisting of 365 (or 366, as the case may be) days. Interest
accrued on any Loan shall also be payable, on any date such Loan is prepaid (whether due to
acceleration or otherwise) and on the Maturity Date.



(e) The Borrower shall pay to the Agent for the account of the Lenders interest on overdue
principal and (to the extent permitted by applicable law) overdue interest and on any other amounts
payable hereunder or under the other Loan Documents which are overdue, at the rate (the “Default
Rate”) of two percent (2%) per annum in excess of the Interest Rate (calculated on the basis of a
year consisting of twelve, 30-day months), and such interest shall be payable upon demand of the
Agent.



(f) In no event shall the interest rate for the Loan or any other amount payable under the
Loan Documents exceed the maximum rate permitted by law, provided, further that
notwithstanding anything to the contrary herein, the interest rate payable pursuant to this
Agreement shall at no time exceed the lower of (i) the relevant interest rate stated herein, and
(ii) the maximum interest rate permitted under applicable law. In the event the Agent ever
receives, collects, or applies as interest any such excess, such amount which would be excessive
interest shall be applied to the reduction of such other amounts due hereunder or under the Loan
Documents then outstanding, and, if such other amounts then outstanding are paid in full, any
remaining excess shall forthwith be paid to the Borrower. In determining whether or not the
interest paid or payable, under any specific contingency, exceeds the highest lawful rate, the
Borrower, the Agent and the Lenders shall, to the maximum extent permitted under applicable law,
(A) characterize any payment other than a payment of principal or interest hereunder as an expense,
fee, or premium rather than as interest, (B) exclude any voluntary prepayments and the effects
thereof, and (C) spread the total amount of interest throughout the period during which any
principal of the Loan remains outstanding so that the interest rate is uniform throughout the
period during which any principal of the Loan remains outstanding.



SECTION 2.5. Evidence of Debt. (a) Each Loan made by each Lender shall be evidenced
by a single promissory note duly executed by the Borrower in favor of such Lender, dated the
Closing Date (the “Notes”), which shall be issued in substantially the form attached hereto as
Exhibit A, and in a principal amount equal to such Lender’s Commitment and delivered to
such Lender pursuant to Article III. The parties agree that the aggregate principal amount of the
Notes outstanding at any time shall not exceed the sum of the Commitments of all of the Lenders
reduced by any payments, prepayments and repayments of principal made by the Borrower.



(b) Each Lender shall maintain in accordance with its usual practice an account or accounts
evidencing indebtedness of the Borrower to such Lender resulting from the Loan of such Lender from
time to time, including the amounts of principal and interest payable and paid to such Lender from
time to time under this Agreement.



(c) The Agent, on behalf of the Borrower, shall maintain the Register in which shall be
recorded (i) the amount of each Loan made hereunder and the Note evidencing such Loan, (ii) the
amount of any principal or interest due and payable or to become due and payable from the Borrower
to each Lender hereunder and (iii) both the amount of any sum received by the Agent hereunder from
the Borrower and each Lender’s share thereof.



(d) The entries made in the Register shall, to the extent permitted by applicable law, be
prima facie evidence of the existence and amounts of the obligations of the
Borrower therein recorded; provided, however, that the failure of any Lender or the Agent to
maintain the Register, or any error therein, shall not in any manner affect the obligation of the
Borrower to repay (with applicable interest) the Loans made to the Borrower by such Lender in
accordance with the terms of this Agreement.



SECTION 2.6. Optional Prepayments. At any time, and from time to time, upon not less
than five (5) Business Days’ prior written notice to the Agent and the Lenders, the Borrower may
prepay the Loans in whole or ratably in part prior to the Maturity Date without any premium or
penalty; provided that the Borrower may only prepay the Loans in an aggregate amount equal
to $4,095,000 in any calendar year. All prepayments of principal of the Loans, whether voluntary
or otherwise (including, but not limited to, prepayment following acceleration upon the occurrence
and during the continuance of an Event of Default), shall be accompanied by accrued interest on the
amount prepaid and any fees due the Agent and the Lenders but unpaid. Partial prepayments of the
Loans shall be in an aggregate principal amount of $500,000 or a whole multiple thereof.



SECTION 2.7. Mandatory Prepayments.



(a) If, on any Appraisal Date, the Loan to Value Ratio exceeds 85%, the Borrower shall, within
3 Business Days thereafter, either (i) prepay the Loans or (ii) add additional Collateral in
accordance with Section 6.2(c) of the Security Agreement, to the extent necessary to reduce the
Loan to Value Ratio to or below 85%.



(b) If on any date the Borrower shall receive Net Cash Proceeds from any Asset Sale or
Recovery Event then, unless a Reinvestment Notice shall be delivered in respect thereof on the date
of receipt by the Borrower of such Net Cash Proceeds, the Loans shall be prepaid by an amount equal
to the amount of such Net Cash Proceeds, as set forth in Section 2.8; provided, that,
notwithstanding the foregoing, (i) the aggregate Net Cash Proceeds of Asset Sales and Recovery
Events that may be excluded from the foregoing requirement pursuant to a Reinvestment Notice shall
be immediately deposited by the Borrower into the Cash Collateral Account or deposited with, or
placed under the control of, a Qualified Intermediary (solely in the case of 1031 Transaction)
unless such Net Cash Proceeds are used by the Borrower on such date to purchase Replacement Units
and such Replacement Units (and any related Replacement Leases) become subject to the Lien of the
Security Agreement in accordance with Section 6.2(b) of the Security Agreement and (ii) on each
Reinvestment Prepayment Date, the Loans shall be prepaid by an amount equal to the Reinvestment
Prepayment Amount with respect to the relevant Asset Sale or Recovery Event. The provisions of
this Section 2.7(b) do not constitute a consent to the consummation of any Disposition not
permitted under the Loan Documents.



(c) If on any date the Borrower shall receive proceeds of the purchase of any Items of
Equipment and/or Equipment Leases by the Manager in accordance with the terms of Section 4.04 the
Management Agreement (a “Manager Buyback”), the Servicer in accordance with the terms of Section
4.03(b) of the Servicing Agreement (a “Servicer Buyback”), or The Andersons in accordance with the
terms of Section 3.04 of the Sale Agreement (a “Seller Buyback”), then on the date of receipt by
the Borrower of such proceeds, the Loans shall be prepaid by an amount equal to the amount of such
proceeds.



SECTION 2.8. Pro Rata Treatment and Payments. (a) Each payment (including each
prepayment) by the Borrower on account of principal of the Loans shall be made pro rata according
to the respective outstanding principal amounts of the Loans then held by the Lenders and shall be
applied to the installments of the Loans in the order of the scheduled maturities of such
installments; provided that all prepayments by the Borrower on account of the principal of
the Loans shall be applied to the installments of the Loans in the inverse order of the scheduled
maturities of such installments. Each payment of interest in respect of the Loans and each payment
in respect of fees payable hereunder shall be applied to the amounts of such obligations owing to
the Lenders pro rata according to the respective amounts then due and owing to the Lenders.
Amounts prepaid on account of the Loans may not be reborrowed.



(b) Whenever any payment to be made hereunder or under the other Loan Documents shall be
stated to be due on a day, which is not a Business Day, such payment may be made on the next
succeeding Business Day, together with interest thereon to the date of payment and such extension
of time shall in such case be included in the computation of payment of interest.



(c) Upon receipt by the Agent of payments on behalf of Lenders, the Agent shall promptly
distribute such payments to the Lenders entitled thereto, in like funds as received by the Agent.



SECTION 2.9. Use of Proceeds. The proceeds of the Loans shall be used by the Borrower
to acquire the Equipment and the related Equipment Leases, to pay fees and expenses in connection
herewith, and for working capital and general business purposes.



SECTION 2.10. Non-Receipt of Funds by the Agent. Unless the Borrower or a Lender, as
the case may be, notifies the Agent prior to the date on which it is scheduled to make payment to
the Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case of the
Borrower, a payment of principal, interest, fees or any other amount hereunder to the Agent for the
account of the Lenders, that it does not intend to make such payment, the Agent may assume that
such payment has been made. The Agent may, but shall not be obligated to, make the amount of such
payment available to the intended recipient in reliance upon such assumption. If such Lender or
the Borrower, as the case may be, has not in fact made such payment to the Agent, the recipient of
such payment shall, on demand by the Agent, repay to the Agent the amount so made available
together with interest thereon in respect of each day during the period commencing on the date such
amount was so made available by the Agent until the date the Agent recovers such amount at a rate
per annum equal to (x) in the case of payment by a Lender, the Federal Funds Rate for such day for
the first three days and, thereafter, the interest rate applicable to the relevant Loan or (y) in
the case of payment by the Borrower, the interest rate applicable to the relevant Loan.



SECTION 2.11. Inspection Rights. Once every twelve (12) month period at the
Borrower’s sole expense (except if an Event of Default has occurred and is continuing, in which
case, at any time and at the Borrower’s sole expense), the Agent and each Lender shall have the
right to inspect, and the Borrower shall, at the request of the Agent or any such Lender, cause to
be exhibited to the Agent and such Lender for purposes of such inspection, at the Borrower’s sole
expense, all of the lease records of the Borrower as to the status of the Equipment (other than the
original executed Equipment Leases in the possession of the Agent) and any portion of the Equipment
located at such time on the premises of the Borrower or any of its Affiliates or at any junction at
the time of such inspection. In addition, the Agent, at the request of the Required Lenders, may,
at the Lenders’ expense, inspect, within 90 days of any addition or substitution, any Equipment
added or substituted in accordance with Section 6.2 of the Security Agreement located at such time
on the premises of the Borrower or its Affiliates.



ARTICLE III.




CONDITIONS OF LENDING




SECTION 3.1. Conditions Precedent to the Loan. The obligation of the Lenders to
advance the Loans shall be subject to fulfillment of the following conditions precedent on or prior
to the Closing Date:



(a) The Borrower shall have delivered to the Agent the Pay Proceeds Letter;



(b) Each Lender shall have received its applicable Note duly executed by the Borrower;



(c) The Agent shall have received the following documents in form and substance satisfactory
to the Agent:




(i) This Agreement duly executed by the Borrower;




(ii) The Security Agreement duly executed by the Borrower together with a memorandum of
the Security Agreement to be filed with the United States Surface Transportation Board
(“STB”) and the Office of the Registrar General of Canada (“Registrar General”) together
with evidence of such filings (and the favorable opinions of Alvord & Alvord, special
Surface Transportation Board counsel to the Borrower, and McCarthy Tétrault LLP, special
Canadian counsel to the Borrower);




(iii) The Pledge Agreement duly executed by The Andersons;




(iv) The Servicing Agreement duly executed by the Borrower and The Andersons;




(v) The Management Agreement duly executed by the Borrower and The Andersons;




(vi) The Lockbox Agreement duly executed by the Borrower and Fifth Third Bank;




(vii) The Collection Account Blocked Account Agreement duly executed by the Borrower
and Fifth Third Bank;




(viii) The Cash Collateral Blocked Account Agreement duly executed by the Borrower and
Fifth Third Bank;




(ix) A certificate of insurance naming the Agent as additional insured and loss payee
for the benefit of the Lenders, which satisfies the requirement of Section 4.2 of the
Security Agreement;




(x) A certificate substantially in the form of Exhibit C, duly executed by the
secretary or assistant secretary of the Borrower and Servicer;




(xi) Results of a recent lien search in each of the STB and each of the jurisdictions
in which Uniform Commercial Code financing statements or other filings or recordations
should be made to evidence or perfect security interests in the Collateral, and such search
shall reveal no liens on any of the Collateral or any of the assets of the Borrower (except
for the liens described in Section 5.1(e)(ii));




(xii) A favorable opinion dated the Closing Date and addressed to the Lenders of each
of: (A) in-house counsel to the Borrower; (B) Alvord & Alvord, special Surface
Transportation Board counsel to the Borrower and (C) McCarthy Tétrault LLP, special Canadian
counsel to the Borrower and (D) Chapman and Cutler LLP, special counsel to the Borrower;




(xiii) A copy of the UCC-1 Financing Statements (i) naming Borrower as debtor and Agent
as secured party, covering the Collateral, (ii) naming The Andersons, as debtor and the
Agent, as secured party, covering the Pledged Collateral and, in each case to be filed and
recorded with the office of the Secretary of State of the State of Delaware;




(xiv) Evidence reasonably satisfactory to the Agent that a notice of the assignment of
each Equipment Lease to the Borrower has been delivered to each Equipment Lessee thereunder;




(xv) Evidence reasonably satisfactory to the Agent that an amount equal to the Reserve
Amount is on deposit in the Cash Collateral Account;




(xvi) An undated, signed Notice of Assignment with respect to each of the Equipment
Leases, in substantially the form of Exhibit D;




(xvii) A copy of each of (i) the Transfer Documents, (ii) the Management Agreement,
(iii) Servicing Agreement and the (iv) Car Mark Agreement, each certified by a Responsible
Officer of the Borrower as true, correct and complete;




(xviii) an Appraisal as to the Fair Market Value of the Equipment, such Appraisal being
based on a desktop review of the Equipment signed by a third party appraiser acceptable to
the Agent; and




(xix) Good standing certificates of each of the Borrower, the Manager and the Servicer,
certified by the respective states of formation or incorporation, as the case may be, all as
reasonably acceptable to the Agent.



(d) The Borrower shall have made arrangements reasonably satisfactory to the Agent to pay for
all filing fees and expenses incurred in connection with the filing of the Security Agreement with
the United States Surface Transportation Board and the Office of the Registrar General of Canada,
and the UCC Financing Statements (as described above in 3.1(c)(viii) with the Secretary of the
State of the State of Delaware.



(e) The Borrower shall have paid to the Agent its agreed upon fees due on the Closing Date (it
being understood that such fee or a portion thereof (x) may be paid directly from the Loan proceeds
and (y) may be paid by the Agent to the Lenders).



(f) Except as specified on Schedule B hereto, the Borrower shall have delivered to the
Agent with respect to each Equipment Lease (a) the chattel paper original of such Equipment Lease
and (b) certified copies of each of the other Equipment Lease Documents.



ARTICLE IV.




REPRESENTATIONS AND WARRANTIES




SECTION 4.1. Representations and Warranties of the Borrower. The Borrower represents
and warrants as of the Closing Date as follows:



(a) Organization. The Borrower (i) is a limited liability company, duly organized,
validly existing and in good standing under the laws of the State of Delaware, (ii) has full power
and authority to own its property, (iii) is qualified to do business in every jurisdiction where
such qualification is required except where the failure to be so qualified would not have a
material adverse effect on its ability to conduct its business and (d) is in compliance with all
laws, treaties, rules or regulations of any Governmental Authority applicable to or binding upon
the Borrower or the Collateral except to the extent that the failure to comply therewith could not,
in the aggregate, reasonably be expected to have a Material Adverse Effect. As of the Closing
Date, (i) all of the outstanding economic membership interests of the Borrower are directly owned
by The Andersons and (ii) the Borrower has no Subsidiaries.



(b) No Indebtedness. The Borrower has not created, incurred or permitted to exist any
Indebtedness.



(c) Litigation. There are no actions, suits or proceedings pending to which the
Borrower, the Servicer or any of the Servicer’s Subsidiaries is a party, and there are no other
actions, suits or proceedings threatened against the Borrower or the Servicer of which the Borrower
has knowledge, before any court, arbitrator or administrative agency, which, either individually or
in the aggregate could reasonably be expected to have a Material Adverse Effect.



(d) Authority of Borrower: No Conflicts. The execution, delivery and performance by
the Borrower of the Loan Documents are within the Borrower’s organizational powers and have been
duly authorized by all necessary limited liability company action. Neither the execution and
delivery of any of the Loan Documents or the Transaction Documents nor the consummation of the
transactions herein or therein contemplated nor the fulfillment of, or compliance with, the terms
and provisions thereof will (i) conflict with, violate, or result in a breach of, any of the terms,
conditions or provisions of (A) any law, or any regulation, order, writ, injunction or decree of
any court or governmental instrumentality, domestic or foreign, or (B) the articles of
incorporation, as amended, or the code of regulations, as amended, of the Servicer, or the
certificate of formation or the operating agreement of the Borrower, or (C) any bond, debenture,
note, mortgage, indenture, agreement, lease or other instrument to which the Borrower is a party or
(ii) constitute, with the giving of notice or the passage of time or both, a default under any such
agreement or instrument, or (iii) result in the creation or imposition of any lien, charge,
security interest or other encumbrance of any nature whatsoever upon any property of the Borrower
(except for the Liens contemplated or permitted by the Loan Documents) pursuant to the terms of any
such agreement or instrument.



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




(i) to the knowledge of the Borrower, the Equipment owned by it is in compliance with
all applicable Environmental Laws. Except for matters that have been fully resolved, the
Borrower has not received any written communication from any person or Governmental
Authority that alleges that its operations are not in compliance with applicable
Environmental Laws;




(ii) to the knowledge of the Borrower, it 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 Borrower, the Borrower is in compliance with
all terms and conditions of the Environmental Permits;




(iii) there is no Environmental Claim pending or, to the knowledge of the Borrower,
threatened against or concerning the Equipment;




(iv) To the knowledge of the Borrower, no release of any Hazardous Commodity has
occurred on or from any of the Equipments, which requires investigation, assessment,
monitoring, remediation or cleanup under Environmental Laws.



(f) No Agreements. The Borrower is not a party to any agreement, instrument or
transaction other than its limited liability company agreement, this Agreement and the other Loan
Documents and the Transaction Documents.



(g) Intellectual Property. The Borrower has all patents, patent rights, licenses,
trademarks, trademark rights, trade names, trade name rights and copyrights that the Borrower
considers necessary to the conduct of its business as currently operated or proposed to be
operated.



(h) Governmental Authority. No authorization or approval or other action by, and no
notice to or filing with, any Governmental Authority or regulatory body is required for the due
execution, delivery and performance by the Borrower of any of the Loan Documents or the Transaction
Documents (to which the Borrower is a party) or for the creation and perfection of the first
priority security interest on the Collateral or Pledged Collateral intended to be created in favor
of the Agent under the Security Agreement or Pledge Agreement, respectively, except for the filing
of the Security Agreement or a memorandum thereof with the United States Surface Transportation
Board and the Registrar General of Canada, and the filing UCC-1 financing statements in the State
of Delaware naming the Borrower or The Andersons, as applicable, as debtor and the Agent, as
secured party.



(i) Tax Returns. (i) The Borrower has filed or caused to be filed, or has timely
requested and, if necessary, has obtained, an extension to file all federal and material state and
local tax returns which, to the Borrower’s knowledge, are required to be filed, and has paid, or
made provisions for the payment of, all taxes which have or may have become due pursuant to such
returns or pursuant to any assessment received by them or any of their properties, and all other
taxes, fees or other charges imposed on it or any of its properties, other than taxes which are
being contested in good faith by appropriate proceedings and with respect to which appropriate
reserves in accordance with GAAP consistently applied have been provided on their books; and (ii)
no tax liens have been filed and no claims are being asserted with respect to any such taxes, fees
or other charges, other than those the amount or validity of which are currently being contested in
good faith by appropriate proceedings and with respect to which appropriate reserves in accordance
with GAAP consistently applied have been provided on the applicable books.



(j) Enforceability of Agreements. Each of the Loan Documents and Transaction
Documents to which the Borrower is a party is legal, valid and binding obligations of the Borrower,
enforceable against the Borrower in accordance with their respective terms.



(k) Investment Company. The Borrower is not an “investment company” as such term is
defined under the Investment Company Act of 1940, as amended, and the rules and regulations
promulgated thereunder, nor will the making of the Loans hereunder by the Lenders on the terms and
conditions hereunder provided and the use of the proceeds therefrom by the Borrower result in any
violation by the Borrower of any of the provisions of the Investment Company Act of 1940, as
amended, and the rules and regulations promulgated thereunder.



(l) Ownership of Collateral. The Borrower has good and marketable title to the
Collateral, free and clear of all liens and encumbrances, other than Permitted Liens, subject and
subordinate always to the rights of the Agent and the rights of the Equipment Lessees to use the
Equipment pursuant to the Equipment Leases.



(m) Margin Regulations T, U, X. The proceeds of the Loans will be used by the
Borrower only for the purposes set forth in Section 2.9. None of the proceeds will be used,
directly or indirectly, for the purpose of purchasing any margin stock as such term is defined in
Regulation U issued by the Board of Governors of the Federal Reserve System of the United States
(the “Board”), as applicable (“Margin Stock”), or to extend credit to any other person for the
purpose of purchasing or carrying any Margin Stock. The Borrower is not engaged principally, or as
one of its important business activities, in the business of extending credit for the purpose of
purchasing or carrying any Margin Stock. Neither the Borrower nor any Subsidiary nor any agent
acting in its or on their behalf has taken or will take any action which might cause this Agreement
or any of the documents or instruments delivered pursuant hereto to violate any regulation of the
Board or to violate the Securities Exchange Act of 1934, as amended.



(n) Securities Act of 1933. Neither the Borrower nor, to its knowledge, anyone acting
on its behalf has directly or indirectly offered or sold any interest in the Collateral, other
securities or beneficial interests in the Equipment to, solicited offers to buy any interest in the
Collateral, other securities or beneficial interests in the Equipment from, or otherwise approached
or negotiated in respect of the purchase or sale or other disposition of any interest in the
Collateral, other securities or beneficial interests in the Equipment with, any Person so as to
bring the transactions contemplated by this Agreement within the provisions of Section 5 of the
Securities Act.



(o) Accuracy of Information. All information heretofore furnished by the Borrower to
the Agent and the Lenders in connection with the Loan Documents 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 (it being understood that with respect to any information received by the
Borrower from any Lessee and furnished to Agent and the Lenders, the Borrower represents that any
such information, to its knowledge, is 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).



(p) Equipment and Equipment Leases.




(i) The list of Equipment Lease Documents and all information with respect thereto set
forth in Schedule A to the Security Agreement is accurate, true and correct in all
material respects and is sufficient to identify the railcars comprising the Equipment and
the rents payable by each Equipment Lessee under each Equipment Lease specified in
Schedule A to the Security Agreement for each rental period and the number of rental
periods of anticipated rents under each such Equipment Lease. Each Equipment Lessee and the
Borrower is in compliance in all material respects with all material provisions of the
related Equipment Lease. The Borrower is not aware of any material default under any of the
Equipment Leases.




(ii) (A) Each Equipment Lease Document (assuming due authorization, execution and
delivery by the Equipment Lessee party thereto) is valid and enforceable in accordance with
its terms, is non-cancelable, all sums payable thereunder are payable in the amounts and at
the times stated therein and no part thereof has been prepaid, released or modified, or
encumbered or disposed of by the Borrower; any and all sums of money previously paid by any
Equipment Lessee thereunder as advance payments or deposit of security have been fully
disclosed to the Agent; (B) each Equipment Lease has been entered into in the ordinary
course of business, has been duly authorized and executed by bona fide, legally competent
Equipment Lessees, is (together with the Equipment Lease Documents related thereto) the
entire agreement with each such Equipment Lessee relating to the Equipment covered thereby,
has not been amended, modified, cancelled or waived in any respect, and none of the
Borrower’s rights thereunder have been released, modified, encumbered or disposed of; any
consent, approval, authorization of, or registration, declaration or filing with, any
Governmental Authority (federal, state or local, domestic or foreign) required in connection
with the execution, delivery or performance of any Equipment Lease by the Borrower has been
obtained; (C) the Equipment covered by each Equipment Lease has been delivered, is in good
working order, has been maintained in compliance with all the AAR’s mechanical regulations
and industry commercial standards for revenue interchange loading, has been used for the
purpose for which it was built and shall have been accepted by the applicable Equipment
Lessee as being in a condition which complies with the terms and conditions of such
Equipment Lease; (D) no Equipment Lease or related Equipment Lease Document contains any
purchase option or permits the Equipment Lessee to make prepayments of rent; and (E) all
financial and credit information that the Borrower may at any time furnish to the Agent
relating to the Equipment Lessee under each Equipment Lease is, to the best of the
Borrower’s knowledge, true, complete and not misleading.




(iii) Except as set forth on Schedule A to the Security Agreement, all of the
Equipment is subject to an Equipment Lease.




(iv) Each Item of Equipment and each Equipment Lease is an Eligible Item of Equipment
or an Eligible Lease, as applicable.




(v) With respect to each Equipment Lease, the Agent is in possession of, or will be
pursuant to Section 5.2 of the Security Agreement, (a) a chattel paper original of such
Equipment Lease and (b) copies of all other agreements, documents and instruments executed
in connection with such Equipment Lease. No Equipment Lessee is in possession of any
Equipment Lease that by its express terms is the chattel paper original of any Equipment
Lease or any original receipt therefor.



(q) Security Interest. Upon the execution of the Cash Collateral Account Blocked
Account Agreement, the Collection Account Blocked Account Agreement, the completion of the
recordation and filing of a memorandum of the Security Agreement with the STB, and the deposit,
registration and filing of a memorandum of the Security Agreement at the office of the Registrar
General pursuant to Section 105 of the Canada Transportation Act, the Agent will have a first
priority perfected security interest in the Collateral, subject only to Permitted Liens.



(r) Concerning Prior Ownership of the Equipment. Each of the Transfer Documents (i)
was duly executed by the parties thereto; (ii) was duly authorized by all necessary action of each
of the parties thereto; (iii) constitutes the legal, valid and binding obligation of each party
thereto, enforceable in accordance with its terms (subject, as to enforceability, to applicable
bankruptcy, insolvency, moratorium and similar laws affecting the enforcement of creditor’s rights
generally and to general applicable principles of equity).



(s) No Casualty Loss. To the best knowledge of Borrower, no Item of Equipment has
suffered a Casualty Loss.



(t) Solvency. Both before and after giving effect to the transactions contemplated by
this Agreement and the other Transaction Documents, the Borrower is Solvent.



(u) Separateness. The Borrower is operated in such a manner that the separate
corporate existence of the Borrower, on the one hand, and The Andersons or any Affiliate thereof,
on the other, would not be disregarded in the event of the bankruptcy or insolvency of any of The
Andersons or any Affiliate thereof and, without limiting the generality of the foregoing:




(i) (i) the Borrower is a limited purpose limited liability company whose activities
are restricted in its organizational documents to activities related to purchasing or
otherwise acquiring the Equipment and related assets and rights and conducting any related
or incidental business or activities it deems necessary or appropriate to carry out its
primary purpose, including entering into this Agreement and the other Transaction Documents;




(ii) the Borrower has not engaged, or presently engages, in any activity other than
those activities expressly permitted hereunder and under the other Transaction Documents,
nor has the Borrower entered into any agreement other than this Agreement and the other
Transaction Documents to which it is a party;




(iii) (A) the Borrower maintains its own deposit account or accounts, separate from
those of any of its Affiliates, with commercial banking institutions, (B) the funds of the
Borrower are not and have not been diverted to any other Person for any use other than the
corporate use of the Borrower, and (C), except as may be expressly permitted or required by
this Agreement or any other Transaction Document, the funds of the Borrower are not and have
not been commingled with those of any other Person;




(iv) to the extent that the Borrower contracts or does business with vendors or service
providers where the goods and services provided are partially for the benefit of any other
Person, the costs incurred in so doing are fairly allocated to or among the Borrower and
such entities for whose benefit the goods and services are provided, and the Borrower and
each such entity bears its fair share of such costs; and all material transactions between
the Borrower and any of its Affiliates shall be only on an arm’s-length basis;




(v) the Borrower maintains a principal executive and administrative office through
which its business is conducted and a telephone number and stationery through which all
business correspondence and communication are conducted separate from those of its
Affiliates;




(vi) Borrower conducts its affairs strictly in accordance with its organizational
documents and observes all necessary, appropriate and customary corporate formalities,
including (A) holding all regular and special equity holders’ and directors’ or managers’,
as applicable, meetings appropriate to authorize all company action (which, in the case of
regular equity holders’ and directors’ or managers’, as applicable, meetings, are held at
least annually), (B) keeping separate and accurate minutes of such meetings, (C) passing all
resolutions or consents necessary to authorize actions taken or to be taken, and (D)
maintaining accurate and separate books, records and accounts, including intercompany
accounts;




(vii) all decisions with respect to the Borrower’s business and daily operations are
independently made by the Borrower and are not dictated by any Affiliate of the Borrower (it
being understood that the Manager, which is an Affiliate of the Borrower, will undertake and
perform all of the operations, functions and obligations of it set forth in the Management
Agreement and it may appoint sub-managers, which may be Affiliates of the Borrower, to
perform certain of such operations, functions and obligations and that the Servicer, which
is an Affiliate of the Borrower, will undertake and perform all of the operations, functions
and obligations of it set forth the Servicing Agreement and it may appoint sub-servicers,
which may be Affiliates of the Borrower, to perform certain of such operations, functions
and obligations);




(viii) the Borrower acts solely in its own name and through its own authorized officers
and agents, has not held itself out as a “division” or “part” of any other Person, and no
Affiliate of such Person shall be appointed to act as its agent, except as expressly
permitted by this Indenture and the other Transaction Documents;




(ix) no Affiliate of the Borrower advances funds to such Issuer, other than as is
otherwise expressly provided herein or in the other Transaction Documents, and no Affiliate
of the Borrower (other than pursuant to the express terms of the Loan Documents and the
Transaction Documents) otherwise supplies funds to, or guaranties debts of, the Borrower;




(x) other than organizational expenses and as expressly provided herein, the Borrower
pays all expenses, indebtedness and other obligations incurred by it;




(xi) the Borrower does not guarantee, or is not otherwise liable for, any obligation of
any of its Affiliates;




(xii) any financial reports required of the Borrower comply with GAAP and are issued
separately from, but may be consolidated with, any reports prepared for any of its
Affiliates;




(xiii) the Borrower is adequately capitalized to engage in the transactions
contemplated in its organizational documents;




(xiv) the Borrower maintains a board of managers consisting of three individuals. The
Borrower’s board of managers includes at least one independent manager (A) who is not
currently or within the preceding five years has been: (1) a stockholder, director, officer,
employee, manager, or partner of The Andersons or any Affiliate of The Andersons (other than
as an independent director of the Borrower), (2) a direct or indirect holder of any voting
securities of The Andersons or any Affiliate of The Andersons, (3) a creditor, supplier,
contractor or any other person who derives any of its purchases or revenues from its
activities with The Andersons or any of The Andersons’ other Affiliates, or (4) a member of
the immediate family of any stockholder, director, officer, employee, partner, customer,
supplier or contractor of The Andersons or any of its other Affiliates, and (B) who has (1)
prior experience as an independent director for a corporation whose charter documents
required the unanimous consent of all independent directors thereof before such corporation
could consent to the institution of bankruptcy or insolvency proceedings against it or could
file a petition seeking relief under any applicable federal or state law relating to
bankruptcy; and (2) is employed with one or more entities that provide, in the ordinary
course of their respective businesses, advisory, management or placement services to issuers
of securitization or structural finance instruments, agreements or securities; and




(xv) the organizational documents of the Borrower require (A) the affirmative vote of
an independent manager before a voluntary petition under any bankruptcy, insolvency,
reorganization or similar act, law or statute now or hereafter in effect may be filed by the
Borrower, and (B) the borrower to maintain correct and complete books and records of account
and minutes of the meetings and other proceedings of its stockholders and board of managers.



SECTION 4.2. Representation of the Borrower, Lenders and Agent. Each of the Borrower,
each Lender and the Agent, hereby represents and warrants, severally and not jointly, that no
brokers’ commissions related to the Loan Documents are payable by or through it.



ARTICLE V.




COVENANTS OF THE BORROWER




SECTION 5.1. Covenants. So long as any obligation contemplated hereunder or under the
Security Agreement or under any other Loan Document shall remain unpaid, the Borrower agrees, that:



(a) Notice of Events of Default, Servicer Events of Termination and Manager Events of
Termination.




(i) The Borrower will promptly deliver to the Agent, but in any event no later than 5
Business Days, after any Responsible Officer has knowledge of any Default or Event of
Default, written notice of the occurrence of any such event, specifying each such default of
which such Responsible Officer shall have knowledge relating to the nature and period of
existence thereof and what action has been taken or is proposed to be taken with respect
thereto.




(ii) The Borrower shall deliver to the Agent, together with each of the annual
financial statements caused to be delivered by the Borrower pursuant to Section 5.1(e), a
certificate of the Responsible Officer stating whether or not, to the best knowledge of such
Responsible Officer, a Default or Event of Default has occurred and is continuing, and, if
so, specifying each such default of which such Responsible Officer shall have knowledge
relating to the nature and period of existence thereof and what action has been taken or is
proposed to be taken with respect thereto.




(iii) The Borrower will promptly deliver to the Agent, but in any event no later than 3
Business Days, after any Responsible Officer has knowledge of the occurrence of any Servicer
Event of Termination (as defined in the Servicing Agreement) or Manager Event of Termination
(as defined in the Management Agreement), or event that, with the passage of time or the
giving of notice, or both, would constitute such an occurrence, written notice of the
occurrence of such event.



(b) Litigation. The Borrower will deliver to the Agent prompt written notice of any
litigation or legal proceeding against the Borrower or The Andersons as a defendant involving a
judgment in an amount, singly or in the aggregate, in excess of $500,000, whether or not covered by
insurance.



(c) Compliance with Laws, Equipment Leases, Etc. The Borrower will (i) comply with
all laws, rules, regulations and orders applicable to the Collateral or the operation of the
Borrower’s business, if the failure to so comply would materially adversely affect the Borrower’s
business or the Collateral, such compliance to include, without limitation, paying before the same
become delinquent all taxes, assessments and governmental charges imposed upon it or upon its
property except to the extent contested in good faith by appropriate proceedings and for which
appropriate reserves have been established on the Servicer’s books in accordance with GAAP and (ii)
comply with all of the terms, provisions, restrictions, covenants and agreements set forth in the
Equipment Leases and the other Equipment Lease Documents and in each and every supplement to or
amendment thereof.



(d) No Liens; No Loans. (i) The Borrower (A) shall not renew, create, assume or
permit to exist any Lien (other than Permitted Liens) on any property or assets, including, without
limitation, the Equipment, the Equipment Leases, or any other Collateral now owned or hereafter
acquired by it and (B) will pay or discharge, at its own cost and expense, any and all debt, tax,
assessment, obligations, claims, liens or charges (other than Permitted Liens) on or with respect
to the Collateral. The Borrower further agrees to indemnify and hold harmless the Agent and the
Lenders from and against any direct loss, costs or expenses (including reasonable legal fees and
expenses) incurred, in each case, as a result of the imposition or enforcement of any such debt,
tax, assessment, obligations, claim, lien, or charge. Without limiting the foregoing, there will
be no financing statement or other filed or recorded instrument in which the Borrower is named or
which the Borrower has signed, as debtor or mortgagor, now on file at the STB or the Registrar
General covering any of the Collateral except the financing statements or other instruments filed
or to be filed in respect of and for the security interest provided for in the Security Agreement
and in the Equipment Leases and except for any of the foregoing as to which a corresponding release
has been or contemporaneously herewith is being filed with the STB, the Registrar General and the
Secretary of State of the State of Delaware.




(ii) The Borrower will not make any loan, advance or credit to, or guarantee (directly
or indirectly or by an instrument having the effect of assuring another’s payment or
performance on any obligation or capability of so doing, or otherwise), endorse (except for
the endorsement of checks for collection or deposit) or otherwise become contingently
liable, directly or indirectly, in connection with the obligations, stock or dividends of,
or own, purchase, repurchase or acquire (or agree contingently to do so) any stock,
obligations or securities of, or any other interest in, or make any capital contribution to,
any other Person.



(e) Reporting Requirements. The Borrower will cause to be furnished to the Agent:




(i) (A) as soon as available and in any event within 90 days after the end of each of
the first three quarters of each fiscal year of (x) the Servicer, unaudited financial
statements of the Servicer and its consolidated Subsidiaries in the form regularly prepared
for its operations, including a balance sheet of the Servicer and its consolidated
Subsidiaries as of the end of such quarter and statements of income and cash flow of the
Servicer and its consolidated Subsidiaries as of the end of such quarter, and statements of
income and cash flow of the Servicer and its consolidated Subsidiaries for the period
commencing at the end of the previous fiscal year and ending with the end of such quarter,
and (y) the Borrower, unaudited financial statements of the Borrower in the form regularly
prepared for its operations, including a balance sheet of the Borrower as of the end of such
quarter and statements of income of the Borrower as of the end of such quarter and
statements of income and cash flow of the Borrower for the period commencing at the end of
the previous fiscal year and ending with the end of such quarter, in each case certified by
a Responsible Officer; (B) as soon as available and in any event within 120 days after the
end of each fiscal year of the Servicer, consolidated audited financial statements of the
Servicer and its consolidated Subsidiaries certified by independent public accountants of
recognized standing selected by the Servicer and acceptable to the Agent in its reasonable
judgment; and (C) as soon as available and in any event within 120 days after the end of
each fiscal year of the Borrower, unaudited financial statements of the Borrower in the form
regularly prepared for its operations, including a balance sheet of the Borrower as of the
end of such fiscal year and statements of income of the Borrower as of the end of such
fiscal year and statements of income of the Borrower for the period commencing at the end of
the previous fiscal year and ending with the end of such fiscal year, certified by a
Responsible Officer;




(ii) concurrently with the delivery of the financial statements pursuant to in
subsection (i) above, (A) a certificate of a Responsible Officer stating that, to the best
of such Responsible Officer’s knowledge, the Borrower has observed or performed all of its
covenants and other agreements, and satisfied every condition, contained in this Agreement
and the other Loan Documents to which it is a party to be observed, performed or satisfied
by it, and that such Responsible Officer has obtained no knowledge of any Default or Event
of Default except as specified in such certificate and (B) a compliance certificate
containing all information and calculations necessary for determining compliance by the
Borrower with the provisions of this Agreement as of the last day of the fiscal quarter or
fiscal year of the Borrower, as the case may be, in a form reasonably acceptable to the
Agent;




(iii) if so requested by the Agent or the Lenders, promptly after such request (or if
later after receipt thereof from the applicable Equipment Lessee), all material information
in relation to the financial status of each Equipment Lessee, including relevant financial
statements of each Equipment Lessee, which is in the possession of the Borrower, the Manager
or the Servicer, is publicly available or is required to be delivered pursuant to the terms
of the applicable Equipment Lease;




(iv) the Quarterly Manager Report in accordance with Section 3.01 of the Management
Agreement; and




(v) such other information regarding the condition or operations, financial or
otherwise, of the Borrower or the Collateral as the Agent may from time to time reasonably
request.



(f) Equipment Lease Payments. (i) The Borrower shall not modify or amend the payment
terms under any Equipment Lease or request or accept any prepayment of rent from any Equipment
Lessee under any Equipment Lessee.




(ii) The Borrower shall instruct each Equipment Lessee to make all payments of
Equipment Lease Proceeds directly to the Lockbox Account and shall use its best efforts to
cause each Equipment Lessee to make such directly to the Lockbox account.




(iii) The Borrower shall cause all payments in the Lockbox Account to be deposited into
the Collection Account as promptly as possible and in any event no later than one Business
Day after such payments become available in the Lockbox Account.




(iii) The Borrower agrees that if any payment is received by it (or by the Servicer or
Manager on its behalf) under an Equipment Lease, such payment shall be held in trust for the
sole benefit of the Agent and shall promptly be remitted by the Borrower to the Agent for
deposit to the Collection Account.




(v) The Borrower shall not make any change in the instructions to the Equipment Lessees
regarding payments to be made in respect of the Equipment into the Collection Account.



(g) Equipment Leases.




(i) Quarterly, within 20 days after the end of each fiscal quarter of the Borrower, the
Borrower shall notify the Agent in writing regarding any material change related to the
Equipment Leases, including, but not limited to, a change in the identity of any Equipment
Lessee, in the car number assigned to any Item of Equipment, in the amount of rentals, or in
any terms of the Equipment Leases. Nothing in this Section 5.1(g) shall be construed as a
waiver of Borrower’s obligations under the Security Agreement with respect to the Equipment
Leases.




(ii) The Borrower shall use its best efforts to maintain in full force and effect all
of its rights, as lessor, and all of the Equipment Lessee’s obligations, as Lessee, under
each Equipment Lease and shall take such action as is necessary to enforce its rights and
the Equipment Lessee’s obligations thereunder.




(iii) The Borrower shall not waive an event of default under an Equipment Lease unless
no Event of Default then exists hereunder and such waiver and failure of an Equipment Lessee
to comply with the relevant obligation (including with respect to the removal of any Liens)
does not affect the then fair market value, utility or remaining useful life of the relevant
Equipment. In no event shall any such waiver alter or diminish the Borrower’s obligations
hereunder (including with respect to the insurance, use or maintenance of the Equipment).




(iv) The Borrower shall not (and shall cause the Servicer not to) amend, modify,
consent to any change in the terms or otherwise alter any Equipment Lease, except as
expressly permitted under this Agreement, the Security Agreement, the Management Agreement
or the Servicing Agreement.




(v) The Borrower shall use its best efforts (and shall cause the Manager to use its
best efforts) to cause each Item of Equipment Railcar to be subject to, and maintained
under, an Equipment Lease.




(vi) The Borrower shall ensure that (A) except as provided on Schedule B
hereto, the chattel paper original of each Equipment Lease set forth on Schedule A
to the Security Agreement has been delivered to the Agent and (B) the chattel paper original
of each Replacement Lease and each amendment, supplement or other modification to an
Equipment Lease set forth on Schedule A to the Security Agreement shall be delivered
to the Agent within 15 days after the execution by the Equipment Lessee thereof.




(vii) Notwithstanding anything to the contrary in this Agreement or in any other Loan
Document, the Borrower shall not renew, extend or otherwise modify any Equipment Lease
described on Schedule B hereto unless the Borrower shall have delivered to the Agent the
chattel paper original of such Equipment Lease.



(h) Investment Company Act. The Borrower will conduct its operations, and will cause
the Borrower’s operations to be conducted, in a manner which will not subject it to registration as
an “investment company” under the Investment Company Act of 1940, as amended.



(i) Subsidiaries. The Borrower shall not create any Subsidiaries.



(j) No Other Business. Other than in connection with the operation of its assets
consisting of the Equipment and the Equipment Leases or pursuant to or as expressly permitted by
any of the Loan Documents, the Borrower shall not engage in any business.



(k) Title; Control of Equipment. The Borrower will warrant and defend title to the
Collateral against all claims and demands (other than Permitted Liens) of all persons whatsoever.
The Equipment shall at all times be in the possession of or under the control of the Borrower, the
Servicer, the Manager or, to the extent such Item of Equipment is subject to an Equipment Lease
permitted by the Loan Documents, the Equipment Lessee under such Equipment Lease; provided
that, subject to the terms of the Management Agreement, the Borrower or the Manager may relinquish
possession to parties in the business and capable of repairing the Equipment for the limited
purpose of effecting such repairs.



(l) Limitations on Indebtedness. The Borrower shall not create, incur or permit to
exist any Indebtedness other than (i) the Loans, the Notes and other amounts payable under the Loan
Documents and (ii) trade payables incurred in its ordinary course of business.



(m) Limitations on Dispositions.




(i) The Borrower shall not Dispose of any of its right or interest in or to property of
any kind whatsoever (including, without limitation, the Collateral), whether real, personal
or mixed and whether tangible or intangible, except (i) the Disposition of Equipment no more
than once per calendar quarter; provided that the Borrower shall not in any calendar
year Dispose of Equipment with an aggregate Fair Market Value (based on the most recent
Appraisal delivered to the Agent) greater than 25% of the Fair Market Value of all the
Equipment, (ii) in connection with a Manager Buyback, Servicer Buyback or Seller Buyback,
(iii) in connection with a substitution of Replacement Units and Replacement Leases pursuant
to Section 3.04 of the Sale Agreement or Section 4.04 of the Management Agreement so long as
such Replacement Units and Replacement Leases become subject to the Lien of the Security
Agreement in accordance with Section 6.2(b) of the Security Agreement and (iv) in connection
with any Recovery Event.




(ii) The proceeds of any Disposition permitted under subsection (i) above shall be
applied in accordance with Section 2.7.




(iii) Notwithstanding anything herein to the contrary, with respect to a Disposition in
connection with a 1031 Transaction: (A) the Borrower shall provide the Agent with no less
than 30 days prior written notice of any such proposed Disposition, (B) the proceeds of such
Disposition (“1031 Proceeds”) shall be deposited with, or otherwise placed under the control
of, a Qualified Intermediary reasonably acceptable to the Agent, in accordance with Section
1031 of the Code, (C) all 1031 Proceeds held pursuant to a 1031 Exchange Agreement shall be
held subject to 26 C.F.R. 1.1031(k)-1(g)(6) until such 1031 Proceeds are distributed in
accordance with subsection (D) below, (D) the exchange or other similar agreement between
the Qualified Intermediary and the Borrower (the “1031 Exchange Agreement”) shall require
the Agent’s written consent prior to the distribution of such 1031 Proceeds by the Qualified
Intermediary, unless (I) such 1031 Proceeds are used by the Qualified Intermediary to
acquire Replacement Units that qualify as “replacement property” within the meaning of 26
C.F.R. 1.1031(k)-1 and (II) such Replacement Units are contemporaneously transferred by the
Qualified Intermediary to the Borrower in accordance with Section 6.2 of the Security
Agreement and (E) any such Disposition shall be in all other respects reasonably acceptable
to the Agent.




(iv) Without limitation and notwithstanding anything herein to the contrary, Borrower
shall have no right to receive, pledge, borrow or otherwise obtain the benefit of 1031
Proceeds held by a Qualified Intermediary while such funds are held by a Qualified
Intermediary pursuant to a 1031 Exchange Agreement on or before such 1031 Proceeds are
distributed in accordance with Section 5.1(m)(iii)(D).




(v) So long as no Event of Default or Default has occurred and is continuing, upon the
written request of the Borrower, the Agent shall take such action as may be reasonably
requested by the Borrower, at the sole cost and expense of the Borrower, in order to release
from the Lien of the Security Agreement any Collateral Disposed of by the Borrower as
permitted by this Section 5.1(m).



(n) Fundamental Changes. The Borrower shall maintain its existence as a limited
liability company under the laws of the State of Delaware and shall not enter into any transaction
of merger or consolidation, or change the form of organization of its business, or transfer all or
substantially all of its properties and assets to any other Person. The Borrower shall obtain and
preserve its qualification in each jurisdiction in which such qualification is necessary to protect
the validity and enforceability of the Loan Documents.



(o) Limitations on Investments. The Borrower shall not purchase, hold or acquire any
membership interests, capital stock, evidences of Indebtedness or other securities of, make or
permit to exist any loans or advances to, or make or permit to exist any investment or any other
interest in, any other Person except receivables arising from transactions with suppliers in the
ordinary course of business.



(p) Limitation on Restricted Payments. The Borrower shall not declare or pay any
dividend on, or make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, defeasance, retirement or other acquisition of, any
capital stock of the Borrower or any Subsidiary of the Borrower, whether now or hereafter
outstanding, or make any other distribution in respect thereof, either directly or indirectly,
whether in cash or property or in obligations of the Borrower or any Subsidiary at any time after
the occurrence and continuance of a Default or an Event of Default.



(q) Limitation on Amendments.(r) The Borrower shall not amend, supplement or otherwise
modify the terms and conditions of (i) any of the Transaction Documents or (ii) the certificate of
organization, operating agreement or other organizational documents of the Borrower, without the
prior written consent of the Required Lenders, nor shall the Borrower take, or permit any other
Person to take, any other action under any such documents that could have a Material Adverse Effect
or which is inconsistent with the terms of this Agreement or any of the other Loan Documents.



(s) Transactions with Affiliates. Other than as set forth in Section 4.1(g), the
Borrower will not, directly or indirectly, enter into any transaction with any Affiliate of the
Borrower or the Servicer except (i) transactions on terms (considered as a whole) no less favorable
to the Borrower than would be available in a comparable transaction with a Person other than an
Affiliate or (ii) Permitted Affiliate Arrangements. Nothing contained in this Section 5.1(j) shall
be construed to prohibit the Borrower from making distributions to its member in accordance with
its organizational documents.



(t) Non-Consolidation. The Borrower will take all actions necessary to ensure that the
representations and warranties contained in Section 4.1(t) hereof remain true and correct at all
times and that the Borrower would not be consolidated with The Andersons or any of their Affiliates
in the event that any such entity shall become subject to bankruptcy or insolvency proceedings.



(u) Concentration Limits. The Borrower shall not permit at any time (i) more than 15%
of the Fair Market Value of the Equipment (based on the most recent Appraisal delivered to the
Agent) to be leased to any one Equipment Lessee and any of its Affiliates that is not Investment
Grade, (ii) more than 20% of Fair Market Value of the Equipment (based on the most recent Appraisal
delivered to the Agent) to be leased to any one Equipment Lessee and any of its Affiliates that is
Investment Grade; provided that up to 21% of Fair Market Value of the Equipment may be
leased to Dakota Minnesota & Eastern Railroad Corporation and its Affiliates so long as they remain
Investment Grade, or (iii) more than 20% Fair Market Value of the Equipment (based on the most
recent Appraisal delivered to the Agent) to be subject to Per Diem Leases.



(v) Debt Service Coverage Ratio. The Borrower shall not permit the Debt Coverage
Ratio as of any Determination Date to be less than 1.50.



(w) Utilization. The Borrower shall not permit the Utilization Rate at any time to be
less than 80%.



(x) Cash Collateral Account Reserve. If the amount on deposit in the Cash Collateral
Account (less amounts on deposit in the Cash Collateral Account on account of Asset Sales and
Recovery Events) shall at any time be less than the Reserve Amount, the Borrower shall, within 3
Business Days thereafter, deposit in the Cash Collateral Account an amount equal to the difference
between the Reserve Amount and the amount on deposit in the Cash Collateral Account (less amounts
on deposit in the Cash Collateral Account on account of Asset Sales and Recovery Events) on such
date.



(y) Appraisals.




(i) The Borrower shall, at the Borrower’s expense, deliver to the Agent no later than
90 days after the Closing Date, the results of a physical inspection of the Equipment by
D.W. Beary & Associates, Inc. either confirming the results of the Appraisal delivered to
the Agent on the Closing Date or providing a revised Appraisal of the Equipment based on the
results of such physical inspection.




(ii) The Borrower shall, at the Borrower’s expense, deliver to the Agent an Appraisal
of the Equipment (i) on each anniversary of the Closing Date and (ii) at any time requested
by the Agent after the occurrence and continuation of an Event of Default, such Appraisal
being based on a physical inspection of the Equipment conducted not more than thirty (30)
days prior to the delivery date thereof. In addition, after the occurrence of any change in
applicable law (including the rules and regulations of the AAR), which, in the reasonable
opinion of the Agent, could have a material adverse effect on the Fair Market Value of the
Equipment, the Agent shall have the right to obtain a new Appraisal of the Equipment, at the
Borrower’s expense.



(z) No Bankruptcy Filing with the Consent of Independent Director. The Borrower shall
not, without the consent of the Independent Manager, (i) commence any insolvency proceeding seeking
to have an order for relief entered with respect to it or seeking re-organization, arrangement,
adjustment, wind-up, liquidation, dissolution, composition or other relief with respect to it or
its debts, (ii) seek appointment of a receiver, trustee, custodian or other similar official for it
or any part of its assets, (iii) make a general assignment for the benefit or creditors or (iv)
take any action in furtherance of, or consenting or acquiescing in, any of the foregoing.



(aa) No Consolidation. Except as otherwise expressly permitted hereunder, the Borrower
shall not consolidate, amalgamate or merge with or into any other Person or convey or transfer its
properties and assets substantially as an entirety to any Person.



(bb) Enforcement of Servicing Agreement, Management Agreement and Transfer Agreements.
The Borrower shall take all actions necessary, and diligently pursue all remedies available to it,
to the extent commercially reasonable, to enforce the obligations of the Servicer under the
Servicing Agreement, the Manager under the Management Agreement and the obligation of all other
parties under the Transaction Documents to secure its rights thereunder.



(cc) Patriot Act. In compliance with the USA Patriot Act and 31 CFR Part 103.121 and,
in the case of a non-U.S. entity, any other similar requirements of the relevant foreign
jurisdiction, when requested the Borrower shall provide to each Lender certain information relating
to the Borrower that the Lender may be required to obtain and keep on file, including the
Borrower’s name, address and codes of various identifying documents.



(dd) 1031 Transactions. The Borrower shall cause all 1031 Proceeds in the possession
or control of a Qualified Intermediary to be promptly deposited (but in no event later than 2 days
after the occurrence of such event) by such Qualified Intermediary in the Collection Account upon
the occurrence of one of the following events:




(i) upon the expiration of the “identification period” (as defined in 26 C.F.R.
1.1031(k)-1(b)(2)) with respect to such 1031 Proceeds, if the Borrower has not identified
“replacement property” in accordance with 26 C.F.R. 1.1031(k)-1;




(ii) upon the expiration of the “exchange period” (as defined in 26 C.F.R.
1.1031(k)-1(b)(2)) with respect to such 1031 Proceeds if the Borrower has not acquired
“replacement property” with such 1031 Proceeds in accordance with 26 C.F.R. 1.1031(k)-1;




(iii) upon the occurrence of any other event that would disqualify the 1031 Proceeds
from being applied in a 1031 Transaction; or



	 	 	 
	(ee)

	 	(iv)upon the occurrence of an Event of Default.

Post-Closing Deliveries.
	
 
	 	 







(i) The Borrower shall provide to the Agent no later than January 16, 2006,
fully-executed, chattel paper originals of Equipment Leases between the Borrower, as lessor,
and The Andersons, as lessee, as replacement for the “Andersons” Equipment Leases set forth
on Schedule A to the Security Agreement.




(ii) A lien search performed at the STB has revealed liens of record on the Items of
Equipment with the following car marks: AEX 4540, AEX 8299, AEX 8391 (the “Encumbered
Cars”). Notwithstanding anything herein or in the other Loan Documents to the contrary, the
existence of such liens shall not result in a Default or Event of Default unless the
Borrower fails to cause such Encumbered Cars to be free and clear of liens of record at the
STB no later than January 15, 2005.



ARTICLE VI.




EVENTS OF DEFAULT




SECTION 6.1. Events of Default. If any of the following events (“Events of Default”)
shall occur and be continuing:



(a) The Borrower shall fail to pay to the Agent any installment of the principal or interest
on the Loans or any other amounts payable under the Loan Documents within 10 days after the due
date therefor; or



(b) Any representation or warranty made by the Borrower herein or in any other Loan Document
to which it is a party or by The Andersons in the Pledge Agreement, shall prove to have been
incorrect in any material respect when made; or



(c) The Borrower shall fail to perform or observe any term, covenant or agreement set forth,
or refuses to comply with the requirements of, Section 5.1 of this Agreement (other than Section
5.1(g)(vi)); or



(d) The Borrower shall fail to perform or observe the covenant set forth, or refuses to comply
with the requirements of, Section 5.1(g)(vi) of this Agreement or Section 5.2 of the Security
Agreement, other than the failure of the Borrower to deliver the chattel paper original of the
Equipment Leases set forth on Schedule B hereof; or



(e) The Borrower shall fail to obtain and maintain the insurance required under Section 4.2 of
the Security Agreement; or



(f) The Borrower or The Andersons shall fail to perform or observe any other term, covenant or
agreement set forth herein or in any other Loan Document to which it is a party and such failure
continues unremedied for a period of 30 days after the earlier of (i) any Responsible Officer of
the Borrower or The Andersons first acquiring knowledge thereof or (ii) the Borrower’s receipt of
written notice thereof from the Agent; or



(g) The entry of a decree or order by a court having jurisdiction in the premises for relief
in respect of the Borrower in an involuntary case or proceeding under any bankruptcy, insolvency,
reorganization or similar act, law or statute now or hereafter in effect, or adjudging the Borrower
as bankrupt or insolvent, or approving a petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Borrower under Title 11 of the United States Code, as now
constituted or hereafter in effect or under any other applicable federal or state bankruptcy law or
other similar law, or the appointment of a custodian, receiver, liquidator, assignee, trustee,
sequestrator (or similar official) of the Borrower or of any substantial part of its property or
the Collateral or Pledged Collateral, or the entry of an order for the winding up or liquidation of
its affairs, and the continuance of any such decree or order unstayed and in effect for a period of
60 consecutive days; or



(h) The commencement by the Borrower of a voluntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or similar law, or of any other case or
proceeding to be adjudicated as bankrupt or insolvent, or the consent by it to the entry of a
decree or order for relief in respect of the Borrower in an involuntary case or proceeding, under
any applicable federal or state bankruptcy, insolvency, reorganization or similar law or the filing
by it of a petition or consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, sequestrator, or similar official of the
Borrower, or any substantial part of the Collateral, or the making by it of an assignment for the
benefit of the creditors, or the taking of organizational action by the Borrower in furtherance of
any such action; or



(i) The Agent shall cease to have a valid, perfected first priority security interest in and
lien on any of the Collateral or the Pledged Collateral (except for Permitted Liens and as
otherwise provided in the Security Agreement); or



(j) The rendering against the Borrower of a final judgment, decree or order for payment of
money in excess of $500,000 and the continuance of such judgment, decree or order unsatisfied for a
period of 30 consecutive days without being contested in good faith and by appropriate proceedings;
or



(k) Any of the Collateral or the Pledged Collateral shall be attached, distrained or otherwise
levied upon, other than attachments, distraint and levies which constitute Permitted Liens; or



(l) An ERISA Event shall have occurred pursuant to which the Borrower incurs liability having
a material adverse effect on its ability to perform its material obligations under the Loan
Documents to which it is a party; or



(m) a Manager Event of Termination (as defined in the Management agreement) has occurred and
is continuing and the Agent is unable to find an acceptable replacement Manager who succeeds to the
role of “Manager” within 30 days after the Agent gives notice of such termination as provided in
the Management Agreement; or



(n) a Servicer Event of Termination (as defined in the Servicing Agreement) has occurred and
is continuing and the Agent is unable to find an acceptable replacement Servicer who succeeds to
the role of “Servicer” within 30 days after the Agent gives notice of such termination as provided
in the Servicing Agreement.



then, and in any such event, the Agent, acting on instruction from the Required Lenders, may
immediately declare all amounts due and payable under the Loans and all interest thereon notified
in writing to the Borrower and other amounts payable under the Loan Documents to be forthwith due
and payable, whereupon the Loans, all such principal, interest and all such other amounts shall
become and be forthwith due and payable, without presentment, demand, protest, or further notice of
any kind, all of which are hereby expressly waived by the Borrower, provided that upon the
occurrence of an Event of Default described in subsection (g) and (h) of this Section 6.1, the
results that would otherwise occur upon the giving of notice by the Agent shall occur automatically
without the giving of any such notice.



Upon the occurrence and during the continuance of an Event of Default, the Required Lenders may
direct the Agent to exercise remedies in accordance with the Security Agreement and the Pledge
Agreement.



ARTICLE VII.




AGENCY




SECTION 7.1. Appointment and Authority. Each Lender hereby irrevocably appoints
Siemens Financial Services, Inc. to act on its behalf as the Agent hereunder, under the other Loan
Documents and under the other Transaction Documents and authorizes the Agent to take such actions
on its behalf and to exercise such powers as are delegated to the Agent by the terms hereof or
thereof, together with such actions and powers as are reasonably incidental thereto. The
provisions of this Article are solely for the benefit of the Agent and the Lenders, and the
Borrower shall not have rights as a third party beneficiary of any of such provisions.



SECTION 7.2. Rights as a Lender. The Person serving as the Agent hereunder and under
the other Loan Documents shall have the same rights and powers in its capacity as a Lender and may
exercise the same as though it were not the Agent and the term “Lender” shall, unless otherwise
expressly indicated or unless the context otherwise requires, include the Person serving as the
Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits
from, lend money to, act as the financial advisor or in any other advisory capacity for and
generally engage in any kind of business with the Borrower or other Affiliate thereof as if such
Person were not the Agent hereunder and under the Security Agreement and the Pledge Agreement and
without any duty to account therefor to any Lender.



SECTION 7.3. Exculpatory Provisions. The Agent shall have no any duties or
obligations except those expressly set forth herein and in the other Loan Documents and pursuant to
applicable law. Without limiting the generality of the foregoing, the Agent:



(a) shall not be subject to any fiduciary or other implied duties, regardless of whether an
Event of Default has occurred and is continuing;



(b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Agent is required to exercise as directed in writing by the Required Lenders,
provided that the Agent is not required to take any action that, in its opinion or the
opinion of its counsel, may expose it to liability or that is contrary to any Loan Document or
applicable law; and



(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall be liable for the failure to disclose, any information relating to the
Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the
Agent or any of its Affiliates in any capacity.



The Agent shall not be responsible for or have any duty to ascertain or inquire into (i) any
statement, warranty or representation made in or in connection with this Agreement, any other Loan
Document or any other Transaction Document, (ii) the contents of any certificate, report or other
document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the
performance or observance of any of the covenants, agreements or other terms or conditions set
forth herein or therein or the occurrence of any Event of Default or Default, (iv) the validity,
enforceability, effectiveness or genuineness of this Agreement, any other Loan Document, any other
Transaction Document or any other agreement, instrument or document, (v) the satisfaction of any
condition set forth in Article III or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to it, (vi) the value, sufficiency, creation, perfection or
priority of any Lien in any Collateral or Pledged Collateral; or (vii) the financial condition of
the Borrower, the Servicer, the Manager or any of the Servicer’s or Manager’s Subsidiaries. The
Agent shall not have any duty to disclose to the Lenders information that is not required to be
furnished by the Borrower to the Agent at such time, but is voluntarily furnished by the Borrower
to the Agent (either in its capacity as Agent or in its individual capacity).



SECTION 7.4. Reliance by Agent. The Agent shall be entitled to rely upon, and shall
not incur any liability for relying upon, any notice, request, certificate, consent, statement,
instrument, document or other writing (including any electronic message, Internet or intranet
website posting or other distribution) believed by it to be genuine and to have been signed, sent
or otherwise authenticated by the proper Person. The Agent also may rely upon any statement made
to it orally or by telephone and believed by it to have been made by the proper Person, and shall
not incur any liability for relying thereon. In determining compliance with any condition
hereunder to the making of a Loan, that by its terms must be fulfilled to the satisfaction of a
Lender, the Agent may presume that such condition is satisfactory to such Lender unless it shall
have received notice to the contrary from such Lender prior to the making of such Loan. The Agent
may consult with legal counsel (who may be counsel for the Borrower), independent accountants and
other experts selected by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.



SECTION 7.5. Delegation of Duties. The Agent may perform any and all of its duties
and exercise its rights and powers hereunder, under any other Loan Document or any other
Transaction Document by or through any one or more sub-agents appointed by it. The Agent and any
such sub-agent may perform any and all of its duties and exercise its rights and powers by or
through their respective related parties. The exculpatory provisions of this Article shall apply
to any such sub-agent and to the related parties of the Agent and any such sub-agent, and shall
apply to their respective activities in connection with the syndication of the credit facilities
provided for herein as well as activities as Agent.



SECTION 7.6. Action on Instructions of Lenders. The Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder, under any other Loan Document or any
other Transaction Document in accordance with written instructions signed by the Required Lenders
or all Lenders, as the case may be, and such instructions and any action taken or failure to act
pursuant thereto shall be binding on all of the Lenders. The Lenders hereby acknowledge that the
Agent shall be, from time to time, required or requested to take discretionary action permitted to
be taken by it pursuant to the provisions of this Agreement, any other Loan Document or any other
Transaction Document. In taking such action, the Agent shall not have any liability therefor,
other than for the Agent’s gross negligence or willful misconduct. The Agent shall be fully
justified in failing or refusing to take any action hereunder and under any other Loan Document at
the request of the Required Lenders unless it shall first be indemnified to its satisfaction by the
Lenders pro rata against any and all liability, cost and expense that it may incur by reason of
taking or continuing to take any such action.



SECTION 7.7. Resignation of Agent. The Agent may at any time give notice of its
resignation to the Lenders and the Borrower. Upon receipt of any such notice of resignation, the
Lenders shall have the right (so long as no Event of Default shall have occurred and be continuing,
in consultation with the Borrower) to appoint a successor, which shall be a bank with an office in
New York City, the State of New York, or an Affiliate of any such bank with an office in New York
City, the State of New York. If no such successor shall have been so appointed by the Lenders and
shall have accepted such appointment within 30 days after the retiring Agent gives notice of its
resignation, then the retiring Agent may on behalf of the Lenders, appoint a successor Agent
meeting the qualifications set forth above provided that if the Agent shall notify the Borrower and
the Lenders that no qualifying Person has accepted such appointment, then such resignation shall
nonetheless become effective in accordance with such notice and (1) the retiring Agent shall be
discharged from its duties and obligations hereunder, under the other Loan Documents (except that
in the case of any collateral security held by the Agent on behalf of the Lenders under any of the
Loan Documents, the retiring Agent shall continue to hold such collateral security until such time
as a successor Agent is appointed) and under the other Transaction Documents and (2) all payments,
communications and determinations provided to be made by, to or through the Agent shall instead be
made by or to the Lenders directly, until such time as the Lenders appoint a successor Agent as
provided for above in this paragraph. Upon the acceptance of a successor’s appointment as Agent
hereunder or under the Security Agreement and the Pledge Agreement, such successor shall succeed to
and become vested with all of the rights, powers, privileges and duties of the retiring (or
retired) Agent and the retiring Agent shall be discharged from all of its duties and obligations
hereunder, under the other Loan Documents and the other Transaction Documents (if not already
discharged therefrom as provided above in this paragraph). The fees payable by the Borrower to a
successor Agent shall be the same as those payable to its predecessor unless otherwise agreed
between the Borrower and such successor. After the retiring Agent’s resignation hereunder, under
the other Loan Documents and the other Transaction Documents, the provisions of this Article shall
continue in effect for the benefit of such retiring Agent, its sub-agents and their respective
related parties in respect of any actions taken or omitted to be taken by any of them while the
retiring Agent was acting as Agent.



SECTION 7.8. Non-Reliance on Agent and Other Lenders. Each Lender acknowledges that
it has, independently and without reliance upon the Agent and based on such documents and
information as it has deemed appropriate, made its own credit analysis and decision to enter into
this Agreement. Each Lender also acknowledges that it will, independently and without reliance
upon the Agent and based on such documents and information as it shall from time to time deem
appropriate, continue to make its own decisions in taking or not taking action under or based upon
this Agreement, any other Loan Document, any other Transaction Document or any related agreement or
any document furnished hereunder or thereunder.



SECTION 7.9. Agent’s Reimbursement and Indemnification. The Lenders agree to
reimburse and indemnify each of the Agent ratably in proportion to their respective Commitments (i)
for any amounts not reimbursed by the Borrower for which it is entitled to reimbursement by the
Borrower under the Loan Documents, (ii) to the extent not reimbursed by the Borrower, for any other
expenses incurred by it on behalf of the Lenders, in connection with the preparation, execution,
delivery, administration and enforcement of the Loan Documents (including, without limitation, for
any reasonable expenses incurred by it in connection with any dispute between it and any Lender or
between two or more of the Lenders) and (iii) to the extent not reimbursed by the Borrower, for any
liabilities, obligations, losses, damages, penalties, actions, judgments, suits, costs, expenses or
disbursements of any kind and nature whatsoever which may be imposed on, incurred by or asserted
against it in any way relating to or arising out of the Loan Documents or any other document
delivered in connection therewith or the transactions contemplated thereby (including, without
limitation, for any such amounts incurred by or asserted against it in connection with any dispute
between it and any Lender) or between two or more of the Lenders), or the enforcement of any of the
terms of the Loan Documents or of any such other documents, provided that no Lender shall
be liable for the payment of any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements that are found by a final
and nonappealable decision of a court of competent jurisdiction to have resulted from the Agent’s
gross negligence or willful misconduct. The obligations of the Lenders under this Section 7.10
shall survive payment of the Loans and termination of this Agreement.



SECTION 7.10. Notice of Default. The Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default hereunder unless it has received
written notice from a Lender or the Borrower referring to this Agreement describing such Default or
Event of Default. In the event that the Agent shall receive such a notice, the Agent shall give
notice thereof to the Lenders. The Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders (or, if so specified by
this Agreement, all Lenders or any other instructing group of Lenders specified by this Agreement);
provided that unless and until the Agent shall have received such directions, the Agent may (but
shall not be obligated to) take such action, or refrain from taking such action, with respect to
such Default or Event of Default as it shall deem advisable in the best interests of the Lenders.



SECTION 7.11. Authorization to Release Liens. The Agent is hereby irrevocably
authorized by each of the Lenders to effect any release of Liens contemplated by the Security
Agreement, the Pledge Agreement or the other Loan Documents.



ARTICLE VIII.




MISCELLANEOUS




SECTION 8.1. Amendments, Etc. An amendment or waiver of any provision of any of the
Loan Documents, or consent to any departure by the Borrower therefrom shall in any event be
effective only if the same shall be in writing and signed by the Required Lenders and the Borrower
and then such waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however:



(a) that no such amendment, waiver or consent shall, without the consent of all of the
Lenders:




(i) extend the Maturity Date or forgive all or any portion of the principal amount of
the Loans or postpone regularly scheduled payments of principal of any Loan or reduce the
rate or extend the time of payment of interest or fees thereon or related thereto;




(ii) modify the percentage specified in the definition of Required Lenders;




(iii) reduce the amount or extend the payment date for any mandatory payments or
increase the amount of any Lender’s Commitment or permit the Borrower to assign its rights
hereunder or the other Loan Documents;




(iv) amend or waive the obligations of the Borrower as set forth in Section 8.1 of the
Security Agreement or Section 8.5 of this Agreement;




(v) release any Collateral, except as expressly provided for in the Loan Documents;





(vi) amend or otherwise modify any provision in the Loan Documents that, by its express
terms, permits the Borrower to take or refrain from taking any action only upon the consent
of all the Lenders hereunder; or




(vii) amend this Section 8.1 or Section 8.13.



(b) that notwithstanding the foregoing, the Agent may, without the consent of any of the
Lenders, release and accept additions to and substitutions of any Collateral made in accordance
with the express provisions of the Security Agreement and make determinations of whether any
Replacement Unit and/or Replacement Lease delivered in connection therewith is acceptable or
satisfactory,



No amendment of any provision of Article VII of this Agreement shall be effective without the
written consent of the Agent. No amendment of any Note shall be effective without the written
consent of the Lender holding such Note.



SECTION 8.2. Notices, Etc. All notices and other communications required or permitted
to be given hereunder shall be in writing (including telegraphic, telecopy or cable communication)
and mailed, telegraphed, telecopied, cabled or delivered by hand as provided below:



if to the Borrower, at its address at:




c/o The Andersons, Inc.




480 W. Dussel Drive, Suite S




Maumee, OH 43537




Fax: (419) 891-6670




Attention: Vice President and Treasurer



if to the Agent, at its address at:




Siemens Financial Services, Inc.




170 Wood Avenue South




Iselin, NJ 08830




Fax: (732) 590-6545




Attention: Vice President CBF, Operations and Credit



with a copy to:




Siemens Financial Services, Inc.




170 Wood Avenue South




Iselin, NJ 08830




Fax: (732) 590-6687




Attention: General Counsel



if to any Lender, at its address set forth in its Administrative Details (attached hereto as
Schedule A).



All such notices and communications shall be effective when delivered personally or three days
after the date on which it shall be deposited in the United States mail, first class, postage
prepaid, return receipt requested or delivered to the telegraph company, confirmed by telex,
telecopy answerback or delivered to the cable company, or deposited with a reputable overnight
courier to be delivered the next day addressed as aforesaid, except that notices to any party
pursuant to the provisions of Article II shall not be effective until received by such party.



SECTION 8.3. No Waiver; Remedies. No failure on the part of the Lenders to exercise,
and no delay in exercising, any right hereunder or under the Loan Documents shall operate as a
waiver thereof nor shall any single or partial exercise of any right hereunder or under the
Security Agreement or the Notes preclude any other or further exercise thereof or the exercise of
any other right. The remedies herein provided are cumulative and not exclusive of any remedies
provided by law.



SECTION 8.4. Accounting Terms. All accounting terms not specifically defined herein
shall be construed in accordance with GAAP consistently applied, except as otherwise stated herein.



SECTION 8.5. Binding Effect; Assignments; Participations. (a) This Agreement shall
be binding upon and inure to the benefit of the Borrower, the Lenders, the Agent, all future
holders of the Loans and their respective successors and assigns, except that the Borrower may not
assign or transfer any of its rights or obligations under this Agreement without the prior written
consent of the Agent and each Lender.



(b) Any Lender may, without the consent of the Borrower, in accordance with applicable law, at
any time sell to one or more banks, financial institutions or other entities (each, a
“Participant”) participating interests in any Loan owing to such Lender or any other interest of
such Lender hereunder and under the other Loan Documents. In the event of any such sale by a
Lender of a participating interest to a Participant, such Lender’s obligations under this Agreement
to the other parties to this Agreement shall remain unchanged, such Lender shall remain solely
responsible for the performance thereof, such Lender shall remain the holder of any such Loan for
all purposes under this Agreement and the other Loan Documents, and the Borrower and the Agent
shall continue to deal solely and directly with such Lender in connection with such Lender’s rights
and obligations under this Agreement and the other Loan Documents. In no event shall any
Participant under any such participation have any right to approve any amendment or waiver of any
provision of any Loan Document, or any consent to any departure by any Loan Party therefrom, except
to the extent that such amendment, waiver or consent would require the consent of all Lenders
pursuant to Section 8.1. The Borrower agrees that if amounts outstanding under this Agreement and
the Loans are due or unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of an Event of Default, each Participant shall, to the maximum extent permitted by
applicable law, be deemed to have the right of setoff in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount of its participating
interest were owing directly to it as a Lender under this Agreement, provided that, in purchasing
such participating interest, such Participant shall be deemed to have agreed to share with the
Lenders the proceeds thereof as provided in Section 8.13 as fully as if such Participant were a
Lender hereunder. The Borrower also agrees that each Participant shall be entitled to the benefits
of Section 9.20 with respect to its participation in the Loans outstanding from time to time as if
such Participant were a Lender; provided that, in the case of Section 9.20, such Participant shall
have complied with the requirements of said Section, and provided, further, that no Participant
shall be entitled to receive any greater amount pursuant to such Section than the transferor Lender
would have been entitled to receive in respect of the amount of the participation transferred by
such transferor Lender to such Participant had no such transfer occurred.



(c) Any Lender (an “Assignor”) may, in accordance with applicable law and upon written notice
to the Agent, at any time and from time to time assign to any Lender or any affiliate thereof, any
Eligible Assignee with a net worth (as determined in the accordance with GAAP) in excess of
$75,000,000 or, with the consent of the Borrower and the Agent (which, in each case, shall not be
unreasonably withheld or delayed), to an any other bank, financial institution or other entity
(each such party, a “Transferee”) all or any part of its rights and obligations under this
Agreement pursuant to a Transfer Agreement substantially in the form attached hereto as Exhibit
E, executed by such Transferee and such Assignor (and, where the consent of the Borrower and
the Agent is required pursuant to the foregoing provisions, by the Borrower and the Agent) and
delivered to the Agent for its acceptance and recording in the Register; provided that no such
assignment to a Transferee (other than any Lender or any affiliate thereof) shall be in an
aggregate principal amount of less than $5,000,000 (other than in the case of an assignment of all
of a Lender’s interests under this Agreement), unless otherwise agreed by the Borrower and the
Agent. Upon such execution, delivery, acceptance and recording, from and after the effective date
determined pursuant to such Transfer Agreement, (x) the Assignee thereunder shall be a party hereto
and, to the extent provided in such Transfer Agreement, have the rights and obligations of a Lender
hereunder with Loans as set forth therein, and (y) the Assignor thereunder shall, to the extent
provided in such Transfer Agreement, be released from its obligations under this Agreement.
Notwithstanding any provision of this Section, the consent of the Borrower shall not be required
for any assignment that occurs at any time when any Event of Default shall have occurred and be
continuing.



(d) The Agent shall, on behalf of the Borrower, maintain at its address referred to in Section
8.2 a copy of each Transfer Agreement delivered to it and a register (the “Register”) for
the recordation of the names and addresses of the Lenders and principal amount of the Loans owing
to each Lender from time to time. The entries in the Register shall be conclusive, in the absence
of manifest error, and the Borrower, the Agent and the Lenders shall treat each Person whose name
is recorded in the Register as the owner of the Loans and any Notes evidencing such Loans recorded
therein for all purposes of this Agreement. Any assignment of any Loan shall be effective only
upon appropriate entries with respect thereto being made in the Register (and each Note shall
expressly so provide). Any assignment or transfer of all or part of a Loan shall be registered on
the Register only upon surrender for registration of assignment or transfer of the Note evidencing
such Loan, accompanied by a duly executed Transfer Agreement; thereupon one or more new Notes in
the same aggregate principal amount shall be issued to the designated Assignee, and the old Notes
shall be returned by the Agent to the Borrower marked “canceled”.



(e) Upon its receipt of a Transfer Agreement executed by an Assignor and an Assignee (and, in
any case where the consent of any other Person is required, by each such other Person) together
with payment to the Agent of a registration and processing fee of $3,500, the Agent shall (i)
promptly accept such Transfer Agreement and (ii) on the effective date determined pursuant thereto
record the information contained therein in the Register and give notice of such acceptance and
recordation to the Borrower. On or prior to such effective date, the Borrower, at its own expense,
upon request, shall execute and deliver to the Agent (in exchange for the Note of the assigning
Lender) a new Note to the order of such Assignee in an amount equal to the Loans assumed or
acquired by it pursuant to such Transfer Agreement and, if the Assignor has retained a Loan, upon
request, a new Note to the order of the Assignor in an amount equal to the Loans retained by it
hereunder. Such new Note or Notes shall be dated the Closing Date and shall otherwise be in the
form of the Note or Notes replaced thereby.



(f) Any Lender may at any time pledge or assign a security interest in all or any portion of
its rights under this Agreement to secure obligations of such Lender to a Federal Reserve Bank;
provided, that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.



SECTION 8.6. GOVERNING LAW. THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, INCLUDING
THE VALIDITY HEREOF AND THEREOF, SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF
THE STATE OF NEW JERSEY.



SECTION 8.7. CONSENT TO JURISDICTION. ANY LEGAL SUIT, ACTION OR PROCEEDING AGAINST
THE BORROWER ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY LOAN DOCUMENT, OR ANY TRANSACTION
CONTEMPLATED HEREBY OR THEREBY, MAY BE INSTITUTED IN ANY FEDERAL, STATE OR LOCAL COURT IN THE
COUNTY OF MIDDLESEX, STATE OF NEW JERSEY AND THE BORROWER HEREBY WAIVES ANY OBJECTION WHICH IT MAY
NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING, AND, SOLELY
FOR THE PURPOSES OF ENFORCING THE LOAN DOCUMENTS, THE BORROWER HEREBY IRREVOCABLY SUBMITS TO THE
JURISDICTION OF ANY SUCH COURT IN ANY SUCH SUIT, ACTION OR PROCEEDING.



SECTION 8.8. Indemnity. The Borrower agrees to indemnify, protect and hold harmless
the Lenders and the Agent and their respective assigns, directors, officers, employees, agents and
representatives (each an “Indemnified Party”) from and against all losses, damages, injuries,
liabilities, claims, suits, obligations, penalties, actions, judgments, costs, interest and demands
of any kind or nature whatsoever (all the foregoing losses, damages, etc. are the “indemnified
liabilities”), and expenses in connection therewith (including, without limitation, the reasonable
fees and disbursements of counsel for such Indemnified Party whether or not in connection with any
investigative, administrative or judicial proceeding, whether or not such Indemnified Party shall
be designated a party thereto, and the reasonable expenses of investigation by engineers,
environmental consultants and similar technical personnel) or of appraisers arising out of, in
connection with, or as the result of, (i) any claim arising from the operation, use, condition,
possession, storage or repossession of any of the Collateral or the Pledged Collateral, (ii) any
claim relating to any laws, rules or regulations, including, without limitation, environmental
control, noise and pollution laws, rules or regulations, (iii) the preparation, execution, delivery
or performance of the Loan Documents, (iv) the preservation or enforcement of any rights
thereunder, (v) the retention by the Agent of a security interest in the Collateral or the Pledged
Collateral, (vi) any claim for personal injury or property damage arising from the operation, use,
condition, possession, storage or repossession of any of the Collateral or the Pledged Collateral,
(vii) any claim relating to any laws, rules or regulations, including, without limitation,
environmental control, noise and pollution laws, rules or regulations or arising during the period
of any delivery, rejection, storage or repossession of any of the Equipment while a security
interest therein remains in the Agent or during the period of the transfer of such security
interest in the Collateral by the Agent pursuant to any of the provisions of the Security
Agreement, (viii) any modifications, supplements, or amendments to any Loan Document or any
releases of the Collateral or the Pledged Collateral pursuant thereto as a result of a prepayment
of principal or otherwise, (ix) any claim relating to the Management Agreement, the Servicing
Agreement, the Transfer Documents, the Car Mark Agreement or the transactions contemplated thereby,
(x) any investigation of any Default or Event of Default or alleged default or (xi) with respect to
the Agent only, for any liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind and nature whatsoever which may be imposed on,
incurred by or asserted against the Agent arising exclusively from any dispute between two or more
Lenders; provided, however, that the Borrower shall have no obligation to so
indemnify any Indemnified Party for any indemnified liabilities arising from such Indemnified
Party’s willful misconduct or gross negligence. The foregoing indemnity shall survive the
termination of this Agreement, the other Loan Documents, the other Transaction Documents and
payment of all obligations under the Loan Documents.



SECTION 8.9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall constitute an original but all of which when taken together shall
constitute but one agreement.



SECTION 8.10. Severability. 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 8.11. Entire Agreement. This Agreement, together with other Loan Documents,
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. This Agreement cannot be changed or terminated orally.



SECTION 8.12. Survival of Representations and Warranties. All representations and
warranties made herein, in the other Loan Documents and in any document, certificate or statement
delivered pursuant hereto or in connection herewith shall survive the execution and delivery of
this Agreement and the making of the Loans.



SECTION 8.13. Adjustments; Set-off. (a) Except to the extent that this Agreement
provides for payments to be allocated to a particular Lender, if any Lender (a “Benefited Lender”)
shall at any time receive any payment of all or part of the Loans or other amounts owing to it
under the Loan Documents (“Obligations”), or receive any collateral in respect thereof (whether
voluntarily or involuntarily, by set-off, pursuant to events or proceedings of the nature referred
to in Section 6.1(f) or (g) or otherwise), in a greater proportion than any such payment to or
collateral received by any other Lender, if any, in respect of such other Lender’s Obligations,
such Benefited Lender shall purchase for cash from the other Lenders a participating interest in
such portion of each such other Lender’s Obligations, or shall provide such other Lenders with the
benefits of any such collateral, as shall be necessary to cause such Benefited Lender to share the
excess payment or benefits of such collateral ratably with each of the Lenders; provided, however,
that if all or any portion of such excess payment or benefits is thereafter recovered from such
Benefited Lender, such purchase shall be rescinded, and the purchase price and benefits returned,
to the extent of such recovery, but without interest.



(b) In addition to any rights and remedies of the Lenders provided by law, each Lender shall
have the right, without prior notice to the Borrower, any such notice being expressly waived by the
Borrower to the extent permitted by applicable law, upon any amount becoming due and payable by the
Borrower hereunder (whether at the stated maturity, by acceleration or otherwise), to set off and
appropriate and apply against such amount any and all deposits (general or special, time or demand,
provisional or final), in any currency, and any other credits, indebtedness or claims, in any
currency, in each case whether direct or indirect, absolute or contingent, matured or unmatured, at
any time held or owing by such Lender or any branch or agency thereof to or for the credit or the
account of the Borrower. Each Lender agrees promptly to notify the Borrower and the Agent after
any such setoff and application made by such Lender, provided that the failure to give such notice
shall not affect the validity of such setoff and application.



SECTION 8.14. Confidentiality. Each of the Agent and the Lenders agrees to keep
confidential all non-public information provided to it by the Borrower pursuant to this Agreement
that is designated by the Borrower as confidential; provided that nothing herein shall prevent any
Agent or any Lender from disclosing any such information (a) to the Agent, any other Lender or any
affiliate of any thereof, (b) to any Participant or Assignee or prospective Participant or Assignee
that agrees to comply with the provisions of this Section or substantially equivalent provisions,
(c) to any of its employees, directors, agents, attorneys, accountants and other professional
advisors, (d) upon the request or demand of any Governmental Authority having jurisdiction over it,
(e) in response to any order of any court or other Governmental Authority or as may otherwise be
required pursuant to applicable law, (f) in connection with any litigation or similar proceeding,
(g) that has been publicly disclosed other than in breach of this Section, (h) to the National
Association of Insurance Commissioners or any similar organization or any nationally recognized
rating agency that requires access to information about a Lender’s investment portfolio in
connection with ratings issued with respect to such Lender or (i) in connection with the exercise
of any remedy hereunder or under any other Loan Document.



SECTION 8.15. Costs and Expenses. The Borrower agrees (a) to pay or reimburse the
Agent for its reasonable out-of-pocket costs and expenses incurred in connection with the
development, preparation and execution of, and any amendment, supplement or modification to, this
Agreement and the other Loan Documents and any other documents prepared in connection herewith or
therewith, and the consummation and administration of the transactions contemplated hereby and
thereby, including, without limitation, the reasonable fees and disbursements and other charges of
counsel to the Agent, (b) to pay or reimburse each Lender and the Agent for all their costs and
expenses incurred after the occurrence of a Default or Event of Default in connection with the
enforcement or preservation of any rights under this Agreement, the other Loan Documents and any
other documents prepared in connection herewith or therewith, including, without limitation, the
fees and disbursements of counsel (including the allocated fees and disbursements and other charges
of in-house counsel) to each Lender and of counsel to the Agent and (c) to pay, indemnify, or
reimburse each Lender and the Agent for, and hold each Lender and the Agent harmless from, any and
all recording and filing fees and any and all liabilities with respect to, or resulting from any
delay in paying, stamp, excise and other taxes, if any, which may be payable or determined to be
payable in connection with the execution and delivery of, or consummation or administration of any
of the transactions contemplated by, or any amendment, supplement or modification of, or any waiver
or consent under or in respect of, this Agreement, the other Loan Documents and any such other
documents.



SECTION 8.16. No Third Party Beneficiary. This Agreement is solely for the benefit of
the parties hereto and their successors and permitted assigns, and nothing contained in this
Agreement shall be deemed to confer upon any other Person any right to insist upon or to enforce
the performance or observance of any of the obligations contained herein. All conditions to the
obligations of the Lenders to make the Loan hereunder are imposed solely and exclusively for the
benefit of the Lenders and no other person shall have standing to require satisfaction of such
conditions in accordance with their terms or be entitled to assume that the Lenders will refuse to
make the Loan in the absence of strict compliance with any or all thereof and no other person shall
under any circumstances be deemed to be a beneficiary of such conditions, any or all of which may
be freely waived in whole or in part by any Lender at any time if, in any Lender’s sole discretion,
such Lender deems it advisable or desirable to do so.



SECTION 8.17. Inconsistencies with Other Documents. In the event there is a conflict
or inconsistency between this Agreement and any other Loan Document, the terms of this Agreement
shall govern and prevail.



SECTION 8.18. Construction. The parties acknowledge that each party and its counsel
have reviewed and revised this Agreement and that the normal rule of construction to the effect
that any ambiguities are to be resolved against the drafting party shall not be employed in the
interpretation of this Agreement, any Loan Document or any amendment or exhibit hereto or thereto.



SECTION 8.19. Survival of Indemnities. All the indemnity and expense provisions set
forth in this Agreement and the other Loan Documents shall survive the execution and delivery of
this Agreement and the Notes and the payment in full of the Loans and all other obligations
hereunder or under any Loan Documents.



SECTION 8.20. WAIVER OF JURY TRIAL. BY ITS SIGNATURE BELOW WRITTEN EACH PARTY HERETO
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
ARISING OUT OF OR RELATING TO THIS AGREEMENT, THE OTHER LOAN DOCUMENTS HEREIN DESCRIBED OR THE
TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.



SECTION 8.21. Taxes. (a) All payments made by the Borrower under this Agreement
shall be made free and clear of, and without deduction or withholding for or on account of, any
present or future income, stamp or other taxes, levies, imposts, duties, charges, fees, deductions
or withholdings, now or hereafter imposed, levied, collected, withheld or assessed by any
Governmental Authority, excluding net income taxes and franchise taxes (imposed in lieu of net
income taxes) imposed on the Agent or any Lender as a result of a present or former connection
between the Agent or such Lender and the jurisdiction of the Governmental Authority imposing such
tax or any political subdivision or taxing authority thereof or therein (other than any such
connection arising solely from the Agent’s or such Lender’s having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement or any other Loan
Document). If any such non-excluded taxes, levies, imposts, duties, charges, fees, deductions or
withholdings (“Non-Excluded Taxes”) or any Other Taxes are required to be withheld from any amounts
payable to any Agent or any Lender hereunder, the amounts so payable to the Agent or such Lender
shall be increased to the extent necessary to yield to such Agent or such Lender (after payment of
all Non-Excluded Taxes and Other Taxes) interest or any such other amounts payable hereunder at the
rates or in the amounts specified in this Agreement; provided, however, that the Borrower shall not
be required to increase any such amounts payable to any Lender with respect to any Non-Excluded
Taxes (i) that are attributable to such Lender’s failure to comply with the requirements of
paragraph (d) of this Section or (ii) that are United States withholding taxes imposed on amounts
payable to such Lender at the time such Lender becomes a party to this Agreement, except to the
extent that such Lender’s assignor (if any) was entitled, at the time of assignment, to receive
additional amounts from the Borrower with respect to such Non-Excluded Taxes pursuant to this
paragraph (a). In addition, the Borrower shall pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.



(b) Whenever any Non-Excluded Taxes or Other Taxes are payable by the Borrower, as promptly as
possible thereafter the Borrower shall send to the Agent for the account of the Agent or Lender, as
the case may be, a certified copy of an original official receipt received by the Borrower showing
payment thereof. If the Borrower fails to pay any Non-Excluded Taxes or Other Taxes when due to
the appropriate taxing authority or fails to remit to the Agent the required receipts or other
required documentary evidence, the Borrower shall indemnify the Agent and the Lenders for any
incremental taxes, interest or penalties that may become payable by the Agent or any Lender as a
result of any such failure. The agreements in this Section shall survive the termination of this
Agreement and the payment of the Loans and all other amounts payable hereunder and under the other
Loan Documents.



(c) Each Lender (or Transferee) that is not a “U.S. Person” as defined in Section 7701(a)(30)
of the Code (a “Non-U.S. Lender”) shall deliver to the Borrower and the Agent (or, in the case of a
Participant, to the Lender from which the related participation shall have been purchased) two
copies of either U.S. Internal Revenue Service Form W-8BEN or Form W-8ECI, or any subsequent
versions thereof or successors thereto properly completed and duly executed by such Non-U.S. Lender
claiming complete exemption from, or a reduced rate of, U.S. federal withholding tax on all
payments by the Borrower under this Agreement and the other Loan Documents. Such forms shall be
delivered by each Non-U.S. Lender on or before the date it becomes a party to this Agreement (or,
in the case of any Participant, on or before the date such Participant purchases the related
participation). In addition, each Non-U.S. Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Non-U.S. Lender. Each Non-U.S.
Lender shall promptly notify the Borrower at any time it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrower (or any other form of
certification adopted by the U.S. taxing authorities for such purpose). Notwithstanding any other
provision of this paragraph, a Non-U.S. Lender shall not be required to deliver any form pursuant
to this paragraph that such Non-U.S. Lender is not legally able to deliver.



(d) A Lender that is entitled to an exemption from or reduction of non-U.S. withholding tax
under the law of the jurisdiction in which the Borrower is located, or any treaty to which such
jurisdiction is a party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Agent), at the time or times prescribed by applicable law or
reasonably requested by the Borrower, such properly completed and executed documentation prescribed
by applicable law as will permit such payments to be made without withholding or at a reduced rate,
provided that such Lender is legally entitled to complete, execute and deliver such documentation
and in such Lender’s reasonable judgment such completion, execution or submission would not
materially prejudice the legal position of such Lender.



SECTION 8.22. Waiver. The Borrower hereby waives, to the maximum extent not
prohibited by law, any right it may have to claim or recover in any legal action or proceeding in
connection with this Agreement or the other Loan Documents any special, exemplary, punitive or
consequential damages.



[The remainder of this page is intentionally left blank.]




2




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



	 	 	 
	Borrower:

	 	

	 
	 	 
	 

	 
	 	 
	THE ANDERSONS RAIL OPERATING I LLC

	 
	 	 
	By:

	 	/s/ Richard R. George
	
 
	 	 
	
 
	 	Name: Richard R. George

Title: Manager
	 
	 	 






3





	 	 	 	Agent:






SIEMENS FINANCIAL SERVICES, INC.,




in its capacity as Agent




By: /s/ Peter Donaldson

Name: Peter Donaldson

Title: VP Credit & Operations




	 	 	 
	
 
	 	Lenders:
	
 
	 	 
	Commitment: $40,950,000

	 	SIEMENS FINANCIAL SERVICES, INC.
	 
	 	 
	
 
	 	By: /s/ Peter Donaldson
	
 
	 	 
	
 
	 	Name: Peter Donaldson

Title: VP Credit & Operations
	 
	 	 






4




Schedule A




Administrative Details




Siemens Financial Services, Inc.



170 Wood Avenue South



Iselin, NJ 08830



Fax: (732) 590-6545



Attention: Vice President CBF, Operations and Credit



5




Schedule B




Exception Report




	 	 	 	 	 
	Schedule of Principal Payments Addendum I
	 	 
	 
	 	 	 	 
	 

	 
	 	 	 	 
	Date

2/15/2006

3/15/2006

4/15/2006

5/15/2006

6/15/2006

7/15/2006

8/15/2006

9/15/2006

10/15/2006

11/15/2006

12/15/2006

1/15/2007

2/15/2007

3/15/2007

4/15/2007

5/15/2007

6/15/2007

7/15/2007

8/15/2007

9/15/2007

10/15/2007

11/15/2007

12/15/2007

1/15/2008

2/15/2008

3/15/2008

4/15/2008

5/15/2008

6/15/2008

7/15/2008

8/15/2008

9/15/2008

10/15/2008

11/15/2008

12/15/2008

1/15/2009

2/15/2009

3/15/2009

4/15/2009

5/15/2009

6/15/2009

7/15/2009

8/15/2009

9/15/2009

	 	Principal

$232,835.63

$253,785.67

$235,278.53

$242,974.19

$237,679.42

$245,309.29

$240,104.09

$241,309.44

$248,839.85

$243,770.06

$251,233.05

$246,255.04

$247,491.27

$267,089.48

$250,074.53

$257,364.78

$252,621.94

$259,842.39

$255,194.58

$256,475.69

$263,590.55

$259,086.49

$266,129.81

$261,941.16

$263,517.29

$281,633.99

$266,246.54

$273,090.14

$268,946.68

$275,716.27

$271,673.49

$273,033.60

$279,691.15

$275,800.77

$282,382.46

$278,397.53

$279,555.01

$296,195.67

$282,445.36

$288,848.65

$285,313.33

$291,638.04

$288,209.70

$289,656.55
	 	Date Principal

10/15/2009 $295,862.26

11/15/2009 $292,595.93

12/15/2009 $298,721.10

1/15/2010 $295,564.42

2/15/2010 $297,048.19

3/15/2010 $312,075.28

4/15/2010 $300,106.07

5/15/2010 $306,025.46

6/15/2010 $303,148.93

7/15/2010 $308,984.95

8/15/2010 $306,221.93

9/15/2010 $307,759.20

10/15/2010 $313,468.90

11/15/2010 $310,877.85

12/15/2010 $316,502.09

1/15/2011 $314,027.38

2/15/2011 $315,603.83

3/15/2011 $328,919.35

4/15/2011 $318,839.43

5/15/2011 $324,245.52

6/15/2011 $322,067.80

7/15/2011 $327,385.44

8/15/2011 $325,328.14

9/15/2011 $326,961.33

10/15/2011 $332,144.89

11/15/2011 $330,270.13

12/15/2011 $335,363.03

1/15/2012 $333,741.01

2/15/2012 $335,568.87

3/15/2012 $347,038.66

4/15/2012 $338,986.29

5/15/2012 $343,835.87

6/15/2012 $342,404.78

7/15/2012 $347,160.65

8/15/2012 $345,857.03

9/15/2012 $347,588.54

10/15/2012 $352,202.30

11/15/2012 $351,091.98

12/15/2012 $355,609.70

1/15/2013 $16,734,526.36









	 
	 	 	 	 
	
 
	 	 	 	Borrower Initial RRG
	
 
	 	 	 	 
	 
	 	 	 	 







6