Exhibit 10.17


 


AMENDED AND RESTATED CREDIT
AGREEMENT


 


among


 


AMERICAN CRYSTAL SUGAR COMPANY,


 


as Borrower,


 


VARIOUS LENDERS,


 


and


 


COBANK, ACB,


 


as Administrative Agent and Lead
Arranger


 


 






 


$494,556,602
Credit Facilities


 










 





















 


TABLE OF CONTENTS


 


	
  ARTICLE I DEFINITIONS

  	
  1

  
	
  Section 1.1

  	
  Definitions

  	
  1

  
	
  Section 1.2

  	
  Times

  	
  25

  
	
   

  	
   

  	
   

  
	
  ARTICLE II CREDIT FACILITIES

  	
  25

  
	
  Section 2.1

  	
  Commitments
  as to Facilities

  	
  25

  
	
  Section 2.2

  	
  Procedures
  for Advances

  	
  27

  
	
  Section 2.3

  	
  Converting
  Base Rate Loans to LIBOR Loans; Procedures

  	
  28

  
	
  Section 2.4

  	
  Converting
  Base Rate Loans to Quoted Rate Loans; Procedures

  	
  28

  
	
  Section 2.5

  	
  Procedures
  at End of an Interest Period

  	
  29

  
	
  Section 2.6

  	
  Procedures
  at End of a Quoted Rate Period

  	
  29

  
	
  Section 2.7

  	
  Procedures
  for Determining Quoted Rate and Quoted Rate Period applicable to Quoted Rate
  Loans

  	
  29

  
	
  Section 2.8

  	
  Setting
  and Notice of LIBO Rate and Base Rate

  	
  30

  
	
  Section 2.9

  	
  Commitment
  to Issue Letters of Credit

  	
  30

  
	
  Section 2.10

  	
  Interest
  on Loans

  	
  34

  
	
  Section 2.11

  	
  Obligation
  to Repay Advances; Representations

  	
  35

  
	
  Section 2.12

  	
  Notes;
  Payment Dates; Mandatory Prepayments

  	
  35

  
	
  Section 2.13

  	
  Computation
  of Interest and Fees

  	
  37

  
	
  Section 2.14

  	
  Fees

  	
  38

  
	
  Section 2.15

  	
  Use
  of Proceeds

  	
  38

  
	
  Section 2.16

  	
  Voluntary
  Increases, Reduction or Termination of the Commitments; Prepayments

  	
  38

  
	
  Section 2.17

  	
  Payments

  	
  40

  
	
  Section 2.18

  	
  Increased
  Costs; Funding Exceptions

  	
  42

  
	
  Section 2.19

  	
  Taxes

  	
  44

  
	
  Section 2.20

  	
  Illegality

  	
  46

  
	
  Section 2.21

  	
  Loan
  Losses

  	
  46

  
	
  Section 2.22

  	
  Right
  of Lenders to Fund through Other Offices

  	
  46

  
	
  Section 2.23

  	
  Discretion
  of Lenders as to Manner of Loan

  	
  47

  
	
  Section 2.24

  	
  Conclusiveness
  of Statements; Survival of Provisions

  	
  47

  
	
   

  	
   

  	
   

  
	
  ARTICLE III CONDITIONS TO CREDIT EXTENSIONS

  	
  47

  
	
  Section 3.1

  	
  Conditions
  Precedent to the Initial Credit Extension

  	
  47

  
	
  Section 3.2

  	
  Conditions
  Precedent to All Credit Extensions

  	
  49

  
	
   

  	
   

  	
   

  
	
  ARTICLE IV REPRESENTATIONS AND WARRANTIES

  	
  49

  
	
  Section 4.1

  	
  Legal
  Existence and Power; Name; Chief Executive Office

  	
  49

  
	
  Section 4.2

  	
  Authorization
  for Borrowings and Letters of Credit; No Conflict as to Law or Agreements

  	
  49

  
	
  Section 4.3

  	
  Legal
  Agreements

  	
  50

  
	
  Section 4.4

  	
  Capitalization

  	
  50

  
	
  Section 4.5

  	
  Financial
  Condition

  	
  50

  
	
  Section 4.6

  	
  Adverse
  Change

  	
  50

  
	
  Section 4.7

  	
  Litigation

  	
  50

  



 





















 


	
  Section 4.8

  	
  Regulation U

  	
  51

  
	
  Section 4.9

  	
  Taxes

  	
  51

  
	
  Section 4.10

  	
  Titles
  and Liens

  	
  51

  
	
  Section 4.11

  	
  Plans

  	
  51

  
	
  Section 4.12

  	
  Environmental Compliance

  	
  52

  
	
  Section 4.13

  	
  Submissions
  to Lenders

  	
  52

  
	
  Section 4.14

  	
  Financial
  Solvency

  	
  53

  
	
  Section 4.15

  	
  Information
  Regarding Owned and Leased Real Estate and Warehouses

  	
  53

  
	
  Section 4.16

  	
  Intellectual
  Property Rights

  	
  53

  
	
  Section 4.17

  	
  Conflicts
  of Interest

  	
  54

  
	
  Section 4.18

  	
  Licenses;
  Compliance with Laws, Other Agreements, etc.

  	
  54

  
	
  Section 4.19

  	
  Investment
  Company Act

  	
  54

  
	
   

  	
   

  	
   

  
	
  ARTICLE V AFFIRMATIVE COVENANTS

  	
  54

  
	
  Section 5.1

  	
  Reporting
  Requirements

  	
  54

  
	
  Section 5.2

  	
  Books
  and Records; Inspection and Examination

  	
  57

  
	
  Section 5.3

  	
  Compliance
  with Laws

  	
  57

  
	
  Section 5.4

  	
  Payment
  of Taxes and Other Claims

  	
  57

  
	
  Section 5.5

  	
  Maintenance
  of Properties

  	
  58

  
	
  Section 5.6

  	
  Insurance

  	
  58

  
	
  Section 5.7

  	
  Preservation
  of Legal Existence

  	
  58

  
	
  Section 5.8

  	
  Creation
  of New Obligors and Subsidiaries

  	
  58

  
	
  Section 5.9

  	
  Minimum
  Interest Coverage Ratio

  	
  59

  
	
  Section 5.10

  	
  Maximum
  Capitalization Ratio

  	
  59

  
	
  Section 5.11

  	
  Minimum
  Net Working Capital

  	
  59

  
	
  Section 5.12

  	
  Title
  Insurance Policy

  	
  59

  
	
   

  	
   

  	
   

  
	
  ARTICLE VI NEGATIVE COVENANTS

  	
  59

  
	
  Section 6.1

  	
  Liens

  	
  59

  
	
  Section 6.2

  	
  Debt

  	
  60

  
	
  Section 6.3

  	
  Guaranties

  	
  61

  
	
  Section 6.4

  	
  Investments

  	
  61

  
	
  Section 6.5

  	
  Restricted
  Payments

  	
  62

  
	
  Section 6.6

  	
  Restrictions
  on Sale and Issuance of Subsidiary Stock

  	
  62

  
	
  Section 6.7

  	
  Transactions
  With Affiliates

  	
  62

  
	
  Section 6.8

  	
  Consolidation
  and Merger; Asset Acquisitions; Sale or Transfer of Assets; Suspension of
  Business Operations

  	
  62

  
	
  Section 6.9

  	
  Sale
  and Leaseback

  	
  63

  
	
  Section 6.10

  	
  Restrictions
  on Nature of Business

  	
  63

  
	
  Section 6.11

  	
  Accounting

  	
  63

  
	
  Section 6.12

  	
  Hazardous
  Substances

  	
  64

  
	
  Section 6.13

  	
  Subordinated
  Debt

  	
  64

  
	
  Section 6.14

  	
  Tax
  Consolidation

  	
  64

  
	
  Section 6.15

  	
  Negative
  Pledges, Restrictive Agreements, etc.

  	
  64

  
	
  Section 6.16

  	
  Inconsistent
  Agreements

  	
  64

  



 


ii





















 


	
  ARTICLE VII EVENTS OF DEFAULT; RIGHTS AND
  REMEDIES

  	
  65

  
	
  Section 7.1

  	
  Events
  of Default

  	
  65

  
	
  Section 7.2

  	
  Rights
  and Remedies

  	
  67

  
	
  Section 7.3

  	
  Right
  of Setoff

  	
  68

  
	
   

  	
   

  	
   

  
	
  ARTICLE VIII AGREEMENT AMONG LENDERS AND
  ADMINISTRATIVE AGENT

  	
  69

  
	
  Section 8.1

  	
  Authorization;
  Powers; Administrative Agent for Collateral Purposes

  	
  69

  
	
  Section 8.2

  	
  Application
  of Proceeds

  	
  69

  
	
  Section 8.3

  	
  Exculpation

  	
  70

  
	
  Section 8.4

  	
  Use
  of the Term “Administrative Agent”

  	
  70

  
	
  Section 8.5

  	
  Reimbursement
  for Costs and Expenses

  	
  70

  
	
  Section 8.6

  	
  Payments
  Received Directly by Lenders

  	
  71

  
	
  Section 8.7

  	
  Administrative
  Agent and Affiliates

  	
  71

  
	
  Section 8.8

  	
  Credit
  Investigation

  	
  71

  
	
  Section 8.9

  	
  Defaults

  	
  71

  
	
  Section 8.10

  	
  Obligations
  Several

  	
  72

  
	
  Section 8.11

  	
  Resignation
  and Assignment of Administrative Agent

  	
  72

  
	
  Section 8.12

  	
  Lead
  Arranger and Syndication Agent

  	
  73

  
	
  Section 8.13

  	
  Borrower
  not a Beneficiary or Party

  	
  73

  
	
   

  	
   

  	
   

  
	
  ARTICLE IX MISCELLANEOUS

  	
  73

  
	
  Section 9.1

  	
  No
  Waiver; Cumulative Remedies

  	
  73

  
	
  Section 9.2

  	
  Amendments,
  Requested Waivers, Etc.

  	
  73

  
	
  Section 9.3

  	
  Successors
  and Assigns; Register

  	
  74

  
	
  Section 9.4

  	
  Sharing
  of Payments by Lenders

  	
  78

  
	
  Section 9.5

  	
  Notices;
  Distribution of Information Via Electronic Means

  	
  79

  
	
  Section 9.6

  	
  Expenses;
  Indemnity; Damage Waiver

  	
  80

  
	
  Section 9.7

  	
  Replacement
  of Non-Consenting Lender

  	
  81

  
	
  Section 9.8

  	
  Disclosure
  of Information

  	
  82

  
	
  Section 9.9

  	
  Governing
  Law; Jurisdiction; Waiver of Jury Trial

  	
  82

  
	
  Section 9.10

  	
  Integration;
  Inconsistency

  	
  83

  
	
  Section 9.11

  	
  Agreement
  Effectiveness

  	
  83

  
	
  Section 9.12

  	
  Advice
  from Independent Counsel

  	
  83

  
	
  Section 9.13

  	
  Judicial
  Interpretation

  	
  83

  
	
  Section 9.14

  	
  Binding
  Effect; No Assignment by Borrower

  	
  84

  
	
  Section 9.15

  	
  Severability
  of Provisions

  	
  84

  
	
  Section 9.16

  	
  Headings

  	
  84

  
	
  Section 9.17

  	
  Counterparts

  	
  84

  
	
  Section 9.18

  	
  Customer
  Identification — USA Patriot Act Notice

  	
  84

  
	
  Section 9.19

  	
  Borrower’s
  Acknowledgement and Agreement Regarding Participations

  	
  84

  
	
  Section 9.20

  	
  Farm
  Credit Lender Equities

  	
  84

  
	
  Section 9.21

  	
  Patronage
  Distributions

  	
  85

  
	
  Section 9.22

  	
  CoBank
  Bylaws and Capital Plan

  	
  85

  
	
  Section 9.23

  	
  Release

  	
  85

  
	
  Section 9.24

  	
  Prior
  Agreements

  	
  86

  



 


iii





















 


EXHIBITS AND SCHEDULES


 


	
  Exhibit A

  	
   

  	
  Commitments and Addresses

  
	
  Exhibit B

  	
   

  	
  Borrowing Base Certificate

  
	
  Exhibit C

  	
   

  	
  Pricing Grid

  
	
  Exhibit D

  	
   

  	
  Revolving Credit Facility
  Note

  
	
  Exhibit E

  	
   

  	
  Revolving Term Loan T01
  Note

  
	
  Exhibit F

  	
   

  	
  Revolving Term Loan T06
  Note

  
	
  Exhibit G

  	
   

  	
  Revolving Letter of Credit
  Note

  
	
  Exhibit H

  	
   

  	
  Borrowing Request

  
	
  Exhibit I

  	
   

  	
  Notice of Conversion to
  LIBO Rate

  
	
  Exhibit J

  	
   

  	
  Notice of Conversion to
  Quoted Rate

  
	
  Exhibit K

  	
   

  	
  Notice of Rollover of LIBO
  Rate

  
	
  Exhibit L

  	
   

  	
  Notice of Rollover of
  Quoted Rate

  
	
  Exhibit M

  	
   

  	
  Certificate of Officer as
  to Financial Statements

  
	
  Exhibit N

  	
   

  	
  Assignment and Assumption

  
	
  Exhibit O

  	
   

  	
  Initial Farm Credit
  Participants and Voting Participants

  
	
   

  	
   

  	
   

  
	
  Schedule
  4.1

  	
   

  	
  Doing Business Names;
  Business Locations

  
	
  Schedule
  4.4

  	
   

  	
  Capitalization;
  Organization Chart

  
	
  Schedule
  4.7

  	
   

  	
  Litigation

  
	
  Schedule
  4.11

  	
   

  	
  Plans

  
	
  Schedule
  4.12

  	
   

  	
  Environmental Compliance

  
	
  Schedule
  4.18

  	
   

  	
  Licenses, Compliance with
  Laws, Other Agreements

  
	
  Schedule
  6.1

  	
   

  	
  Outstanding Liens

  
	
  Schedule 6.2

  	
   

  	
  Outstanding Indebtedness

  
	
  Schedule
  6.3

  	
   

  	
  Outstanding Guaranties

  
	
  Schedule
  6.4

  	
   

  	
  Additional Investments

  



 


iv





















 


AMENDED
AND RESTATED CREDIT AGREEMENT


 


This
AMENDED AND RESTATED CREDIT AGREEMENT is entered into as of July 30, 2009,
by and among AMERICAN CRYSTAL SUGAR COMPANY, a cooperative corporation formed
under the laws of the State of Minnesota (the “Borrower”),
the several banks and other financial institutions from time to time party
hereto as lenders (the “Lenders”), and
COBANK, ACB, a federally chartered banking organization (“CoBank”),
in its capacity as administrative agent for the Lenders (in such capacity, the “Administrative Agent”).


 


The
Borrower and the Administrative Agent, as a Lender, are parties to an Amended
and Restated Loan Agreement dated as of July 31, 2006 (as amended,
restated, supplemented or otherwise modified from time to time, the “Prior Credit Agreement”).


 


The
Borrower and, subject to the terms and conditions set forth herein, the
Administrative Agent and the Lenders now desire to amend and restate the Prior
Credit Agreement in its entirety.


 


ACCORDINGLY,
in consideration of the premises and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto hereby agree as follows:


 


ARTICLE I

DEFINITIONS


 


Section 1.1             Definitions.  For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires:


 


(a)           The terms defined in the preamble have the meanings
therein assigned to them.


 


(b)           The terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well
as the singular.


 


(c)           All accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with GAAP.


 


(d)           References to documents (including this Agreement)
shall be deemed to include all subsequent amendments, renewals, replacements,
extensions and other modifications thereto and restatements thereof, but only
to the extent not prohibited by the terms of any Loan Document.


 


“Account Debtor” means any Person who is obligated under an
Account.


 


“Accounts” means the aggregate unpaid obligations of customers
and other account debtors of an Obligor arising out of the sale of goods or the
rendition of services by such Obligor on an open account or deferred payment
basis.


 


“Act” has the meaning specified in Section 9.18.


 





















 


“Administrative Agent” has the meaning specified
in the preamble.


 


“Administrative Questionnaire” means an Administrative
Questionnaire in a form supplied by the Administrative Agent.


 


“Advance” means a loan of funds by a Lender to the Borrower
under a Facility.


 


“Affiliate” means, with respect to a Person, (a) any
officer of such Person or member of the Governing Board of such Person; (b) any
Person who, individually or with his immediate family owns or holds more than
10% of the voting interest in the subject Person; and (c) any Person
controlled by, controlling or under common control with such Person, including
(but not limited to) any Subsidiary of such Person.  For purposes of this definition, “control,” when used with respect to a Person, means the
power to direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
provided, however, that for purposes of this Agreement no Administrative Agent
nor any Lender shall be deemed to be an Affiliate of any Obligor.  Unless otherwise specified, “Affiliate” means an Affiliate of the Borrower.


 


“Aggregate Commitment Amount” means the sum of the
Aggregate Revolving Credit Facility Commitment Amount, the Aggregate Revolving
Letter of Credit Commitment Amount, the Aggregate Revolving Term Loan T01 Commitment
Amount and the Aggregate Revolving Term Loan T06 Commitment Amount then in
effect.


 


“Aggregate Revolving Credit Facility Commitment Amount” means  $320,000,000,
constituting the sum of the Revolving Credit Facility Commitments of all
Lenders, subject to adjustment in accordance with Section 2.16(a).


 


“Aggregate Revolving Letter of Credit Commitment Amount” means
$60,849,200, constituting the sum of the Revolving Letter of Credit Commitments
of all Lenders, subject to adjustment in accordance with Section 2.16(a).


 


“Aggregate Revolving Term Loan T01 Commitment Amount” means
$48,707,402, constituting the sum of the Revolving Term Loan T01 Commitments of
all Lenders, subject to adjustment in accordance with Section 2.16(a).


 


“Aggregate Revolving Term Loan T06 Commitment Amount” means
$65,000,000, constituting the sum of the Revolving Term Loan T06 Commitments of
all Lenders, subject to adjustment in accordance with Section 2.16(a).


 


“Aggregate Short-Term Loan Amount” means the sum of (a) the
Revolving Credit Facility Outstanding Amount, (b) the principal amount
outstanding of all Commodity Credit Corporation Loans, and (c) the
principal amount outstanding of all commercial paper issued by any Obligor.


 


“Agreement” means this Amended and Restated Credit Agreement
and all exhibits and schedules hereto.


 


2





















 


“Assignment and Assumption” means an assignment and
assumption entered into by a Lender and an assignee of that Lender’s interest,
in substantially the form of Exhibit N
or any other form approved by the Administrative Agent.


 


“Average Interest Expense” means the Interest Expense
for the most recent eight Fiscal Quarters, divided by two.


 


“Average Net Funds Generated” means the Net Funds
Generated for the most recent eight Fiscal Quarters, divided by two.


 


“Base Rate” means, for any day, an annual rate equal to (a) the
applicable Margin, plus (b) the higher of (i) the Prime Rate,
or (ii) one hundred fifty basis points plus the rate obtained by dividing
the applicable Floating LIBO Rate then in effect by a percentage equal to 1.00
minus the applicable percentage (expressed as a decimal) prescribed by the
Board of Governors of the Federal Reserve System (or any successor thereto) for
determining the maximum reserve requirements applicable to eurodollar fundings
(currently referred to as “Eurocurrency Liabilities”
in Regulation D) or any other maximum reserve requirements applicable to a
member bank of the Federal Reserve System with respect to such eurodollar fundings.


 


“Base Rate Advance” means any Advance that
bears interest at a rate determined by reference to the Base Rate.


 


“Base Rate Loan” means any Loan that bears interest at a rate
determined by reference to the Base Rate, including Base Rate Advances.


 


“Borrower” has the meaning specified in the preamble.


 


“Borrowing” means a borrowing by the Borrower under a Facility,
consisting of the aggregate of all Advances made by the Lenders to the
Borrower.


 


“Borrowing Base” means, at any time, an amount equal to the
sum of:


 


(a)           80% of the Eligible Accounts; and


 


(b)           75% of the Eligible Net Inventory;


 


in any case, computed in accordance with the most recent Borrowing Base
Certificate submitted to, and accepted by, the Administrative Agent.


 


“Borrowing Base Certificate” means a certificate in
substantially the form attached hereto as Exhibit B, duly completed and certified by the Borrower, pursuant to which
the Borrower sets forth each element of the Borrowing Base and its calculation
as of a particular date.


 


“BSA” has the meaning specified in Section 5.3.


 


3
















 


“Business Day” means any day other than a Saturday or
Sunday on which national banks are required to be open for business in Denver,
Colorado, and, in addition, if such day relates to a LIBOR Loan or fixing of a
LIBO Rate, a day on which dealings in U.S. dollar deposits are carried on in
the London interbank eurodollar market.


 


“Capital Expenditures” means, with respect to any
Person, the cost of any real property, plant and equipment, and any other fixed
asset or improvement, or replacement, substitution or addition thereto which is
required by GAAP to be included in or reflected as property, plant and
equipment or similar fixed assets on the balance sheet of such Person, having
useful life of more than one (1) year, or any other payment which is
otherwise required to be capitalized, including as a cost the aggregate amount
of expenses, charges, goods exchanged or services rendered or payments due or
arising in connection with the direct or indirect acquisition of such assets or
improvements, replacements, substitutions or additions by way of increased
product or service charges or offset items or barter exchange or in connection
with Capital Leases, and the entire principal amount of any Debt assumed or
incurred in connection therewith, in each case without duplication; provided,
however, that Capital Expenditures shall not include expenditures made in
connection with the replacement, substitution or restoration of assets to the
extent financed (a) from insurance proceeds (or other similar recoveries)
paid on account of the loss of or damage to the assets being replaced or
restored, or (b) with awards of compensation arising from the taking by
eminent domain or condemnation of the assets being replaced.


 


“Capital Lease” means, with respect to any Person, any lease
of (or other agreement conveying the right to use) any real or personal
property of such Person that, in conformity with GAAP, is accounted for as a
capital lease on the balance sheet of such Person.


 


“Capital Stock” means, with respect to any Person, any and
all shares, interests, participations, membership interests or other
equivalents (however designated) of such Person’s capital stock or equity,
whether now outstanding or issued after the date hereof, including all common
stock, preferred stock, partnership interests and limited liability company
member interests.


 


“Capitalization” means, with respect to any Person as of any
Covenant Compliance Date, the aggregate of such Person’s (a) Long-Term
Debt and (b) Shareholders’ Equity.


 


“Capitalization Ratio” means, with respect to any
Person as of any Covenant Compliance Date, the ratio of such Person’s (a) Long-Term
Debt to (b) Capitalization.


 


“Change in Law” means the
occurrence, after the date of this Agreement, of any of the following:  (a) the adoption or taking effect of any
law, rule, regulation or treaty; (b) any change in any law, rule,
regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority; or (c) the making or issuance of
any request, guideline or directive (whether or not having the force of law, 


 


4

















 


but having general applicability to all within a class of
similarly-situated Persons) by any Governmental Authority.


 


“Change of Control” means any
event, circumstance or occurrence that results in (a) any Person or two or
more Persons acting in concert (other than the current holders of the Capital
Stock of the Borrower) directly or indirectly acquiring beneficial ownership
(within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of the Capital Stock of
the Borrower representing 50% or more of the combined voting power of all
Capital Stock of the Borrower entitled to vote in the election of directors; (b) any
Person or two or more Persons acting in concert (other than the current holders
of the Capital Stock of the Borrower) acquiring by contract or otherwise, or
entering into a contract or arrangement that upon consummation will result in
its or their acquisition of, control over the Capital Stock of the Borrower
representing 50% or more of the combined voting power of all Capital Stock of
the Borrower entitled to vote in the election of directors; or (c) the
Borrower failing to own, directly or indirectly through another wholly-owned
Subsidiary, all issued and outstanding Capital Stock of each other Obligor.


 


“Closing Date” means the date
of this Agreement.


 


“CoBank” has the meaning specified in the preamble.


 


“Code” means the Internal
Revenue Code of 1986, as amended.


 


“Collateral” means all real
and personal property in which the Administrative Agent, on behalf of the
Lenders, has been granted a Lien pursuant to any Security Document, together
with all substitutions and replacements for, and products and proceeds of, any
of the foregoing.


 


“Commitment” means, with
respect to any Lender, the Revolving Credit Facility Commitment, the Revolving
Term Loan T01 Commitment, the Revolving Term Loan T06 Commitment or the
Revolving Letter of Credit Commitment, as the context requires.


 


“Commitment Amount” means the Aggregate
Revolving Credit Facility Commitment Amount, the Aggregate Revolving Letter of
Credit Commitment Amount, the Aggregate Revolving Term Loan T01 Commitment
Amount or the Aggregate Revolving Term Loan T06 Commitment Amount, as the
context requires and subject to adjustment in accordance with Section 2.16.


 


“Commitment Termination Date” means the Revolving Credit
Facility Termination Date, the Revolving Term Loan T01 Commitment Termination
Date, the Revolving Term Loan T06 Commitment Termination Date and the Revolving
Letter of Credit Commitment Termination Date, as the context requires.


 


“Commodity Credit Corporation
Loans” means any advance of funds from the Commodity Credit Corporation to any
Obligor with a maturity date not in excess of 365 days.


 


5

















 


“Communications” has the
meaning specified in Section 9.5(a).


 


“Consolidated Group” means the
Borrower and its Consolidated Subsidiaries, including but not limited to each
Guarantor.


 


“Consolidated Subsidiary” means at any time, any
Subsidiary, the accounts of which are or should, in accordance with GAAP, be
consolidated with those of the Borrower in its consolidated financial statements
at such time.


 


“Covenant Compliance Date” means the last day of each
Fiscal Quarter of the Borrower.


 


“Covenant Computation Period” means the 12 consecutive
calendar months immediately preceding and ending on a Covenant Compliance Date.


 


“Credit Exposure” means, with respect to any Lender, (a) at
all times prior to termination of the Commitments, the aggregate amount of such
Lender’s Commitments; and (b) thereafter, such Lender’s Facility
Outstanding Amount.


 


“Credit Extension” means the making of any
Advance, the conversion to, or continuation of, any LIBOR Loan or the issuance
of any Letter of Credit.


 


“Debt” means, with respect to any Person, without
duplication:  (a) all obligations of
such Person for borrowed money; (b) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments; (c) all
obligations of such Person to pay the deferred purchase price of property or
services, except trade accounts payable arising in the ordinary course of
business; (d) all obligations of such Person as lessee under Capital
Leases that have been or should be recorded as liabilities on a balance sheet
of such Person in accordance with GAAP; (e) all indebtedness secured by a
Lien on any asset of such Person, whether or not such indebtedness has been
assumed by such Person; (f) all indebtedness and other obligations of
others guaranteed by such Person; (g) all net obligations of such Person
under currency, commodity or interest rate swap program or any similar
agreement, arrangement or undertaking relating to fluctuations in commodity
prices, currency values or interest rates, including but not limited to Rate
Hedging Obligations; (h) all obligations, contingent or otherwise, with
respect to the face amount of letters of credit (whether or not drawn) and
bankers’ acceptances issued for the account of such Person; (i) all
Redeemable Capital Stock of such Person; (j) all obligations of such
Person arising under Synthetic Leases; and (k) all obligations of such
Person to advance funds to, or purchase assets, property or services from, any
other Person in order to maintain the financial condition of such Person.  For all purposes of this Agreement, the Debt
of any Person shall include the Debt of any partnership or joint venture in
which such Person is a general partner or a joint venturer; provided, that the
portion (if any) of any such Debt that exceeds the amount of such Debt as to
which there is recourse to such Person shall not be included hereunder as Debt
of such Person.


 


“Default” means an event that, with giving of notice or
passage of time or both, would constitute an Event of Default.


 


6

















 


“Default Rate” has the meaning specified in Section 2.10(d).


 


“Defaulting Lender” means at any time, any
Lender that, at such time:  (a) has
failed to make an Advance required pursuant to the terms of this Agreement; (b) has
failed to pay to any Lender Party an amount owed by such Lender pursuant to the
terms hereof; (c) has been deemed insolvent or has become subject to a
bankruptcy or insolvency proceeding or to a receiver, trustee or similar
official; or (d) has notified the Administrative Agent or the Borrower
that such Lender does not intend to comply with its obligation to make further
Advances or other payments as required under this Agreement.


 


“Director” means, with respect to any Person, (a) if such
Person is a corporation, a member of the board of directors of such Person, (b) if
such Person is a limited liability company, a governor, manager or managing
member of such Person, and (c) if such Person is a partnership, a general
partner of such Person.


 


“Disclosed Information” has the meaning specified
in Section 9.8.


 


“Eligible Accounts” means all unpaid Accounts
arising from a bona fide sale or rendition of services by an Obligor in the
ordinary course of business on usual and ordinary terms, evidenced by an
invoice and net of any applied or unapplied credits or other allowance (with
any such unapplied credits or other allowances being applied to the most
current Account of an Obligor); provided, however, that the following shall in
no event be deemed Eligible Accounts:


 


(a)           that portion of Accounts over ninety (90) days past
the specified due date;


 


(b)           Accounts owed by any unit of government, whether
foreign or domestic, unless such Account is a U.S. government obligation and
the Lenders’ pledge and assignment of such Account has been confirmed by duly
acknowledged and accepted documents complying with the Assignment of Claims Act
and delivered to and approved by the Administrative Agent;


 


(c)           that portion of Accounts that are conditional,
disputed or subject to a known claim of offset or a contra Account or with
respect to which a defense, counterclaim, right to discount or deduction has
been asserted;


 


(d)           Accounts that are owed by an Account Debtor whose
principal corporate office is located outside the United States or Canada
unless the Account is supported by a letter of credit issued by a bank
acceptable to the Administrative Agent;


 


(e)           Accounts owed by an Account Debtor that is the
subject of dissolution, liquidation, bankruptcy proceedings or has gone out of
business;


 


(f)            Accounts owed by an Affiliate of any Obligor and
Accounts with Account Debtors with whom any Obligor is obligated with respect
to goods sold or services rendered by such Account Debtor;


 


7

















 


(g)           Accounts that are subject to any Lien other than
Permitted Liens;


 


(h)           that portion of Accounts that has been restructured,
extended, amended or modified as a result of an Account Debtor’s inability to
pay; and


 


(i)            that portion of Accounts that are billed before the
rendition of services by the applicable Obligor or that constitute a finance
charge, service charge or interest.


 


“Eligible Lender” means: 
(a) a financial institution organized under the laws of the United
States, or any state thereof, and having a combined capital and surplus of at
least $100,000,000; (b) a commercial bank organized under the laws of any
other country that is a member of the Organization for Economic Cooperation and
Development, or a political subdivision of any such country, and having a
combined capital and surplus of at least $100,000,000, provided that such bank
is acting through a branch or agency located in the United States; or (c) a
Person controlled by, controlling, or under common control with any entity
identified in clause (a) or (b) above.


 


“Eligible Net Inventory” means, at any
time of determination, Net Inventory of any Obligor that arose in the ordinary
course of business of such Obligor; provided, however, no Net Inventory shall
be Eligible Net Inventory unless it satisfies each of the following
requirements:


 


(a)           such Net Inventory is located in the United States
on real property assets that are either (i) owned by the Obligor, free and
clear of any Liens other than Permitted Liens, or (ii) located in or with,
as the case may be, a public warehouse or leased premises;


 


(b)           the Obligor has full and unqualified right to assign
and grant a Lien in such Net Inventory to the Administrative Agent for the
benefit of the Lender Parties;


 


(c)           the Obligor has full and lawful title to such Net
Inventory, free and clear of all Liens other than the Permitted Liens;


 


(d)           such Net Inventory does not consist of:  (i) items in the custody of third
parties for processing, manufacture or on consignment, or on a bill-and-hold,
cash-on-delivery or guaranteed sale basis; (ii) items in the Obligor’s
possession, but intended by the Obligor for return to the suppliers thereof; (iii) items
belonging to third parties that have not been consigned to the Obligor; (iv) items
in the Borrower’s custody and possession on a sale-on-approval or
sale-or-return basis subject to any other repurchase or return agreement; (v) items
that are finished goods that do not meet the specifications of the purchase
order for such goods; (vi) hazardous materials or goods that can be
transported or sold only with licenses that are not readily available; and


 


(e)           such Net Inventory that (i) is not obsolete,
unsalable, slow moving, damaged or otherwise unfit for sale or further
processing in the ordinary course of the Obligor’s business; (ii) does not
consist of display items, packing or shipping materials, manufacturing surplus
or replacement parts; and (iii) is covered by the casualty insurance of
such Obligor that is required to be maintained pursuant to the terms of this
Agreement.


 


8

















 


“Environmental Laws” has the meaning specified
in Section 4.12.


 


“ERISA” means the Employee Retirement Income Security Act
of 1974, as amended.


 


“ERISA Affiliate” means any trade or business (whether or not
incorporated) that is, along with an Obligor, a member of a controlled group of
corporations or a controlled group of trades or businesses, as described in
sections 414(b) and 414(c), respectively, of the Code.


 


“Event of Default” has the meaning specified
in Section 7.1.


 


“Excluded Taxes” means, with respect to any Lender Party or
any other recipient of any payment to be made by, or on account of, any
obligation of the Borrower hereunder:  (a)         taxes imposed on, or measured by, its overall net
income (however denominated), and franchise taxes imposed on it (in lieu of net
income taxes), by the jurisdiction (or any political subdivision thereof) under
the laws of which such recipient is organized or in which its principal office
is located or, in the case of any Lender, in which its applicable lending
office is located; (b) any branch profits taxes imposed by the United
States of America or any similar tax imposed by any other jurisdiction in which
the Borrower is located; and (c) in the case of a Foreign Lender, any
withholding tax that is imposed on amounts payable to such Foreign Lender at
the time such Foreign Lender becomes a party hereto (or designates a new
lending office) or is attributable to such Foreign Lender’s failure or
inability (other than as a result of a Change in Law) to comply with Section 2.19(e), except to the extent that such Foreign
Lender (or its assignor, if any) was entitled, at the time of designation of a
new lending office (or assignment), to receive additional amounts from the
Borrower with respect to such withholding tax pursuant to Section 2.19(a).


 


“Existing Indebtedness” means, collectively, the
Existing Revolving Loan, the Existing Revolving Term Loan T01, the Existing
Revolving Term Loan T06 and the Existing Revolving Letter of Credit Loan.


 


“Existing Revolving Letter of Credit Loan” means the loan
from CoBank to the Borrower in the outstanding principal amount of $60,849,200  evidenced by the  promissory
note of the Borrower dated July 25, 2007 payable to the order of CoBank.


 


“Existing Revolving Loan” means the loan from CoBank
to the Borrower in the outstanding principal amount of $345,000,000 evidenced
by the promissory note of the Borrower dated November 3, 2006 payable to
the order of CoBank.


 


“Existing Revolving Term Loan T01” means the loan from CoBank
to the Borrower in the outstanding principal amount of $48,707,402 evidenced by
the promissory note of the Borrower dated July 31, 2006 payable to the
order of CoBank.


 


“Existing Revolving Term Loan T06” means the loan from CoBank
to the Borrower in the outstanding principal amount of $65,000,000 evidenced by
the promissory note of the Borrower dated July 31, 2006 payable to the
order of CoBank.


 


9

















 


“Facility” means the Revolving Credit Facility, the Revolving
Term Loan T01 Facility, the Revolving Term Loan T06 Facility or the Revolving Letter
of Credit Facility, as the context requires.


 


“Facility Outstanding Amount” means the Revolving Credit
Facility Outstanding Amount, the Revolving Term Loan T01 Facility Outstanding
Amount, the Revolving Term Loan T06 Facility Outstanding Amount or the
Revolving Letter of Credit Facility Outstanding Amount, as the context
requires.


 


“Farm Credit Lender” means a lending institution
organized and existing pursuant to the provisions of the Farm Credit Act of
1971 and under the regulation of the Farm Credit Administration.


 


“Farm Credit Lender Equities” has the meaning specified
in Section 9.20.


 


“Federal Funds Rate” means, for any day, the
rate set forth in the weekly statistical release designated as H.15(519), or
any successor publication, published by the Federal Reserve Bank of New York
(including any such successor publication, “H.15(519)”) on
the preceding Business Day opposite the caption “Federal Funds (Effective)”;
or, if for any relevant day such rate is not so published on any such preceding
Business Day, the rate for such day will be the arithmetic mean as determined
by the Administrative Agent of the rates for the last transaction in overnight
federal funds arranged prior to 9:00 a.m. (New York City time) on that day
by each of the three leading brokers of federal funds transactions in New York
City, as selected by the Administrative Agent in its discretion.


 


“Fee Letter” means the separate agreement of even date herewith
between the Borrower and the Administrative Agent, setting forth certain fees
to be paid by the Borrower to the Administrative Agent for the Administrative
Agent’s own account or for the account of the Lenders, as more fully set forth
therein.


 


“Financial Covenants” means the covenants
contained in Sections 5.9, 5.10 and 5.11.


 


“FIRREA” means the Financial Institutions Reform, Recovery
and Enforcement Act of 1989, as amended.


 


“Fiscal Quarter” means each three-month period ending (a) within
one week prior to or following the last Saturday in November, February and
May of each Fiscal Year, and (b) August 31st of each Fiscal Year; and, in each instance,
beginning on the subsequent day.


 


“Fiscal Year” means a calendar year commencing on September 1
and ending on August 31.


 


“Fixed Rate Loan” means any LIBOR Loan or Quoted Rate Loan.


 


10

















 


“Floating LIBO Rate” means:  (a) the rate per annum determined by the
Administrative Agent as of approximately 11:00 a.m. London time on the
first Business Day of each calendar week by reference to the British Bankers’
Association Interest Settlement Rates for deposits in dollars offered on the
London interbank dollar market for a one month period (as displayed in the
Bloomberg Financial Markets system or any successor thereto or any other
service selected by the Administrative Agent that has been nominated by the
British Bankers’ Association as an authorized information vendor for the
purpose of displaying such rates); or (b) if such rate cannot be
determined, the rate per annum equal to the rate determined by the
Administrative Agent in accordance with Section 2.8 to be a rate at which U.S. dollar deposits are offered to major
banks in the London interbank eurodollar market for funds to be made available
on the first Business Day of each calendar week and maturing in one month, in
each case rounded upwards, if necessary, to the nearest 1/16 of 1%; provided,
however, that upon an Unusual LIBOR Event, Floating LIBO Rate shall mean any
similar successor rate designated by the Administrative Agent in its reasonable
discretion.


 


“Foreign Lender” means any Lender that is organized under the
laws of a jurisdiction other than the United States of America, any state
thereof or the District of Columbia.


 


“Funded Debt” of any Person means all Debt of such Person,
including but not limited to all Subordinated Debt of such Person, other than
any such Debt described in clauses (g) and (k) of the definition of “Debt”
herein (including guaranties of any such items of Debt).


 


“GAAP” means generally accepted accounting principles as
in effect on the Closing Date and applied on a basis consistent with the
accounting practices applied in the financial statements of the Borrower
referred to in Section 4.5, except
for any change in accounting practices to the extent that, due to a
promulgation of the Financial Accounting Standards Board changing or
implementing any new accounting standard, the Borrower either (a) is
required to implement such change, or (b) for future periods will be
required to and for the current period may in accordance with generally
accepted accounting principles implement such change, for its financial
statements to be in conformity with generally accepted accounting principles
(any such change is hereinafter referred to as a “Required
GAAP Change”), provided that (i) the Borrower shall fully
disclose in such financial statements any such Required GAAP Change and the
effects of the Required GAAP Change on the Borrower’s income, retained earnings
or other accounts, as applicable, and (ii) the Financial Covenants shall
be adjusted as necessary to reflect the effects of such Required GAAP Change,
provided that if the Required Lenders and the Borrower cannot agree on such
adjustments, the Financial Covenants will be calculated without giving effect
to the Required GAAP Change.


 


“Governing Board” means, with respect to any corporation,
limited liability company or similar Person, the board of directors, board of
governors or other body or entity that sets overall institutional direction for
such Person.


 


11
















 


“Governmental Authority” means the government of the
United States of America or any other nation, or of any political subdivision
thereof, whether state or local, and any agency, authority, instrumentality,
regulatory body, court, central bank or other entity exercising executive,
legislative, judicial, taxing, regulatory or administrative powers or functions
of or pertaining to government (including any supra-national bodies such as the
European Union or the European Central Bank).


 


“Guarantor” means Sidney Sugars Incorporated, a Minnesota
corporation.


 


“Guaranty” means the Amended and Restated Guaranty of even
date herewith from  Sidney Sugars
Incorporated, a Minnesota corporation and a Subsidiary of the Borrower, in
favor of the Agent, for the benefit of the Lender Parties, guaranteeing all
present and future Obligations.


 


“Hazardous Substance” means any asbestos,
urea-formaldehyde, polychlorinated biphenyls, nuclear fuel or material,
chemical waste, radioactive material, explosives, known carcinogens, petroleum
products and by-products and other dangerous, toxic or hazardous pollutants,
contaminants, chemicals, materials or substances listed or identified in, or
regulated by, any Environmental Laws.


 


“Increased Facility Amount” has the meaning specified in
Section 2.16(b).


 


“Indemnified Taxes” means Taxes other than
Excluded Taxes.


 


“Indemnitee” has the meaning specified in Section 9.6(b).


 


“Initial Farm Credit Participants” has the meaning specified
in Section 9.19.


 


“Intellectual Property Rights” means all actual or
prospective rights arising in connection with any intellectual property or
other proprietary rights, including all rights arising in connection with
copyrights, patents, service marks, trade dress, trade secrets, trademarks,
trade names or mask works.


 


“Intercreditor Agreement” means the Amended and
Restated Intercreditor and Collateral Agency Agreement of even date herewith
among CoBank, as collateral agent; the Lenders, as bank lenders; John Hancock
Mutual Life Insurance Company, John Hancock Variable Life Insurance Company,
the Paul Revere Life Insurance Company and John Hancock Life Insurance Company
of Vermont, as noteholders; and the Additional Creditors, as defined therein.


 


“Interest Coverage Ratio” means, with respect to any
Person, for the applicable Covenant Computation Period, the ratio of (a) such
Person’s Average Net Funds Generated, to (b) such Person’s Average
Interest Expense.


 


“Interest Expense” means, with respect to any
Person for the applicable period, the aggregate consolidated amount of interest
paid, accrued or scheduled to be paid in respect of any Debt of such Person,
including, but not limited to and without duplication:  (a) accrued interest (whether or not
paid) on all Debt; (b) the amortization of Debt 


 


12

















 


discounts;
(c) the amortization of all fees payable in connection with the incurrence
of Debt to the extent included in interest expense; (d) that portion of
any Capital Lease Payment that would constitute imputed interest as determined
in accordance with GAAP; and (e) all fees and charges with respect to
letters of credit issued for the account of such Person.


 


“Interest Payment Date” means:  (a)  with respect to each LIBOR Loan,
the last day of the Interest Period applicable thereto (and, if such Interest
Period is longer than three months, each day prior to the last day of such
Interest Period that occurs at intervals of three months’ duration after the
first day of such Interest Period); (b) with respect to each Base Rate
Loan or Quoted Rate Loan, the 10th day of each
calendar month; and (c) with respect to each Loan, the Maturity Date.


 


“Interest Period” means, relative to any LIBOR Loan, the
period beginning on (and including) the date on which such LIBOR Loan is made,
or continued as, or converted into, a LIBOR Loan pursuant to Section 2.2, 2.3,
or 2.5 and shall end on (but exclude) the
day that numerically corresponds to such date one, three or six months
thereafter (or, if such month has no numerically corresponding day, on the last
Business Day of such month), as the Borrower may select in its relevant notice
pursuant to Section 2.2, 2.3 or 2.5;
provided, however, that:


 


(a)           no more than five (5) different Interest
Periods may be outstanding at any one time for each Facility;


 


(b)           if an Interest Period would otherwise end on a day
that is not a Business Day, such Interest Period shall end on the next
following Business Day (unless such next following Business Day is the first
Business Day of a month, in which case such Interest Period shall end on the
next preceding Business Day); and


 


(c)           no Interest Period may end later than the Maturity
Date for the applicable Facility.


 


“Inventory” means all inventory of any Obligor, as such term is
defined in the UCC, whether consisting of whole goods, spare parts or
components, supplies or materials, whether acquired, held or furnished for
sale, for lease or under service contracts or for manufacture or processing,
and wherever located.


 


“Investment” means (a) the acquisition, purchase, making or
holding of any Securities; (b) any loan, advance, contribution to capital
or extension of credit (except for (i) trade and customer accounts
receivable for inventory sold or services rendered in the ordinary course of
business and payable in accordance with customary trade terms, and (ii) Investments
of less than $7,500,000); (c) any acquisitions of real or personal
property (other than real and personal property acquired in the ordinary course
of business); and (d) any purchase or commitment or option to purchase
Securities or other debt of, or any interest in, another Person or any integral
part of any business or the assets comprising such business or part thereof and
the formation of, or entry into, any partnership as a limited or general
partner or the entry into any joint venture. 
The amount of any 


 


13

















 


Investment
shall be the original cost of such Investment plus the cost of all additions
thereto, without any adjustments for increases or decreases in value, or
write-ups, write-downs or write-offs with respect to such Investment (other
than adjustments for the repayment of, or the refund of capital with respect
to, the original or any additional principal amount of any such Investment).


 


“Issuing Fee” has the meaning specified in Section 2.9(b).


 


“Knowledge” of a Person means the actual knowledge of any
officer of such Person.


 


“Lease” means, with respect to any Person, any leasing or
similar arrangement for the lease or use of any real or personal property of
such Person, including, without limitation, any Capital Lease or Operating
Lease.


 


“Lender” has the meaning specified in the preamble.


 


“Lender Parties” means, collectively, the Administrative
Agent, the Lenders, the Letter of Credit Issuer and each Affiliate of any
Lender to whom any Rate Hedging Obligations are owed.


 


“Letter of Credit” has the meaning specified
in Section 2.9.


 


“Letter of Credit Documents” means such applications,
reimbursement agreements and other documents as the Letter of Credit Issuer may
require as a condition to issuing a Letter of Credit.


 


“Letter of Credit Exposure” means the sum of (a) the
aggregate remaining available amount of all issued and outstanding Letters of
Credit, and (b) amounts drawn under Letters of Credit for which the Letter
of Credit Issuer has not been reimbursed with proceeds of a Borrowing or
otherwise.


 


“Letter of Credit Facility” means the Revolving Credit
Facility, the Revolving Term Loan T06 Facility or the Revolving Letter of Credit
Facility, as applicable.


 


“Letter of Credit Fee” has the meaning specified
in Section 2.9(b).


 


“Letter of Credit Issuer” means CoBank (or, as
applicable, one of its Affiliates), in its separate capacity as issuer of
Letters of Credit for the account of the Borrower pursuant to Section 2.9.


 


“Letter of Credit Lenders” means the Revolving Credit
Facility Lenders, the Revolving Term Loan T06 Lenders or the Revolving Letter
of Credit Lenders, as applicable.


 


“Letter of Credit Sublimit” means (a) $50,000,000
in respect of the Revolving Credit Facility, (b) $20,000,000 in respect of
the Revolving Term Loan T06 Facility, and 


 


14

















 


(c) the
Aggregate Revolving Letter of Credit Commitment Amount in respect of the Revolving
Letter of Credit Facility; as the context requires.


 


“Level I,”  “Level II,” and
“Level III,” each means a Status as
determined in accordance with the definition of “Margin.”


 


“LIBO Base Rate” means, with respect to an Interest Period: (a) the
rate per annum determined by the Administrative Agent as of approximately 11:00 a.m.
London time on the date two (2) Business Days before the commencement of
such Interest Period by reference to the British Bankers’ Association Interest
Settlement Rates for deposits in dollars offered on the London interbank dollar
market for a period corresponding to the term of such Interest Period and in an
amount comparable to the aggregate amount of the relevant Loan (as displayed in
the Bloomberg Financial Markets system or any successor thereto or any other
service selected by the Administrative Agent that has been nominated by the
British Bankers’ Association as an authorized information vendor for the
purpose of displaying such rates), or (b) if such rate cannot be determined,
the rate per annum equal to the rate determined by the Administrative Agent in
accordance with Section 2.8 to be a
rate at which U.S. dollar deposits are offered to major banks in the London
interbank eurodollar market for funds to be made available on the first day of
such Interest Period and maturing at the end of such Interest Period, in each
case rounded upwards, if necessary, to the nearest 1/16 of 1%.


 


“LIBO Rate” means, with respect to an Interest Period, the rate
obtained by adding (a) the applicable Margin to (b) the rate obtained
by dividing (i) the applicable LIBO Base Rate by (ii) a percentage
equal to 1.00 minus the applicable percentage (expressed as a decimal)
prescribed by the Board of Governors of the Federal Reserve System (or any successor
thereto) for determining the maximum reserve requirements applicable to
eurodollar fundings (currently referred to as “Eurocurrency
Liabilities” in Regulation D) or any other maximum reserve
requirements applicable to a member bank of the Federal Reserve System with
respect to such eurodollar fundings.


 


“LIBOR Advance” means any Advance that bears interest at a
rate determined by reference to a LIBO Rate.


 


“LIBOR Loan” means any Loan that bears interest at a rate
determined by reference to a LIBO Rate, including LIBOR Advances.


 


“License” has the meaning specified in Section 4.18.


 


“Lien” means any mortgage, deed of trust, lien, pledge,
security interest or other charge or encumbrance, of any kind whatsoever,
including but not limited to the interest of the lessor or titleholder under
any Capital Lease, title retention contract or similar agreement.


 


“Loan” means a designated portion of outstanding principal
indebtedness under one or more Facilities that bears interest at a rate
determined by reference to a particular LIBO Rate, Base Rate or Quoted Rate, as
the case may be.


 


15

















 


“Loan Documents” means this Agreement, the Notes, the
Guaranty, each Letter of Credit Document and the Security Documents.


 


“Long-Term Debt” means any Funded Debt of any Person having an
original maturity greater than one year or renewable at the option of such
Person for a period greater than one year from the date of original incurrence
or issuance thereof, excluding, in any event, outstanding Advances under the
Revolving Credit Facility.


 


“Margin” means, with respect to computation of the
applicable interest rate on any Loans or the applicable Letter of Credit Fee or
Unused Fee, as the case may be, the applicable increment set forth and
described in the Pricing Grid, established as of the last day of each Fiscal
Quarter according to the then-applicable Status.  Any adjustment in the applicable Margin shall
not become effective until the first calendar day of the first month immediately
following receipt by the Administrative Agent of financial statements relating
to the last day of such Fiscal Quarter pursuant to Section 5.1.  If
financial statements of the Consolidated Group necessary to establish the
appropriate Margin hereunder are not received by the Administrative Agent on or
prior to the date required pursuant to Section 5.1, the applicable Margin shall be determined as if Level III
Status were in effect, and such Level III Status shall remain in effect until
such time as the required financial statements are so received.


 


“Material Adverse Effect” means, with respect to any
event or circumstance, a material adverse effect on:


 


(a)           the business, financial condition, operations or
prospects of the Obligors, taken as a whole;


 


(b)           the ability of an Obligor to perform its obligations
under any Loan Document to which it is a party;


 


(c)           the validity, enforceability or collectibility of
any Loan Document; or


 


(d)           the status, existence, perfection, priority or
enforceability of any Lien granted pursuant to any Security Document.


 


“Maturity Date” means (a) with respect to the Revolving
Credit Facility, July 30, 2012; (b) with respect to the Revolving
Term Loan T01 Facility, December 31, 2011; (c) with respect to the
Revolving Term Loan T06 Facility, December 31, 2011; and (d) with
respect to the Revolving Letter of Credit Facility, April 30, 2013.


 


“Mortgage” means each mortgage or deed of trust, as the case
may be, from the appropriate Obligor owning real property, pursuant to which such
Obligor grants the Administrative Agent, for the benefit of the Lender Parties,
a Lien on such real property and related improvements to secure payment of the
Secured Obligations and all amendments and supplements thereto and
modifications thereof, including without limitation, the Primary Mortgage.


 


16

















 


“Multi-Employer Plan” means a multi-employer plan
(as defined in section 4001(a)(3) of ERISA) to which any Obligor or any
ERISA Affiliate contributes or is obligated to contribute.


 


“Net Funds Generated” means, with respect to any
Person for the applicable period, the sum of such Person’s:


 


(a)           unit retains, retained patronage, depreciation and
amortization, Interest Expense, Net Income from non-member business, Tax
Expense deducted in determining such Net Income, and cash distributions from
joint ventures; minus


 


(b)           members’ investment retirements.


 


“Net Income” means, with respect to any Person for the
applicable period, such Person’s after-tax net income as determined in
accordance with GAAP.


 


“Net Inventory” means (a) all Inventory of any Obligor
as determined on the basis of “Net Realizable Value”, less (b) crop
payments to any Person by any Obligor. 
For purposes of this definition of Net Inventory, “Net Realizable Value”
means (i) the expected selling price of such Inventory, less (ii) the
expected costs to complete and dispose of such Inventory, all as calculated in
accordance with GAAP.


 


“Net Proceeds” means, with respect to any transaction, the
gross proceeds from such transaction, less reasonable brokerage, legal,
accounting and other fees and expenses, to the extent actually paid or payable
in connection with such gross proceeds.


 


“Net Working Capital” means, as of any date of
determination, the excess of current assets of the Consolidated Group
(excluding cash and cash equivalents) over the current liabilities of the
Consolidated Group.


 


“Non-Consenting Lender” has the meaning specified
in Section 9.7.


 


“Note” means any Revolving Credit Facility Note, Revolving
Term Loan T01 Note, Revolving Term Loan T06 Note or Revolving Letter of Credit
Note.


 


“Notice” has the meaning specified in Section 9.5(b).


 


“Obligations” means (a) each and every debt,
liability and other obligation of every type and description arising under or
in connection with any of the Loan Documents that the Borrower may now or at
any time hereafter owe to any Lender Party, whether such debt, liability or
obligation now exists or is hereafter created or incurred, whether it is direct
or indirect, due or to become due, absolute or contingent, primary or
secondary, liquidated or unliquidated, or sole, joint, several or joint and
several, and including specifically, but not limited to, due and owing to a
Lender from the Borrower and all indebtedness, liabilities and obligations of
the Borrower arising under or evidenced by the Notes; and (b) Rate Hedging
Obligations.


 


17

















 


“Obligor” means either the Borrower or a Guarantor, if any,
including but not limited to any Person that becomes a Guarantor after the
Closing Date pursuant to Section 5.8.


 


“OFAC” has the meaning specified in Section 5.3.


 


“Operating Lease” means, with respect to any Person, any
leasing or similar arrangement for the lease or use of any equipment or other
personal property assets that, in accordance with GAAP, would not be
characterized as a Capital Lease.


 


“Organizational Documents” means (a) with respect
to any corporation, the articles of incorporation and bylaws of such corporation;
(b) with respect to any partnership, the partnership agreement of such
partnership; (c) with respect to any limited liability company, the
articles of organization and operating agreement of such company; and (d) with
respect to any entity, any and all other shareholder, partner or member control
agreements and similar organizational documents relating to such entity.


 


“Other Taxes” means 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 under any other Loan Document or
from the execution, delivery or enforcement of, or otherwise with respect to,
this Agreement or any other Loan Document.


 


“Participant” has the meaning specified in 9.3(d).


 


“Participation Agreements” has the meaning specified
in Section 9.19.


 


“Patron” means a member of the Borrower.


 


“Pension Plan” means a pension plan (as defined in section
3(2) of ERISA) maintained for employees of any Obligor or any ERISA
Affiliate and covered by Title IV of ERISA.


 


“Percentage” means, with respect to any Lender, the ratio of
that Lender’s Credit Exposure to the aggregate Credit Exposure of all
Lenders.  Where the context refers to a
particular Facility, “Percentage” shall be determined with respect to that
Facility only; provided, however, that from and after the occurrence of an
Event of Default and during the continuance thereof, “Percentage” shall not be
determined with respect to any particular Facility.


 


“Permitted Liens” has the meaning specified in Section 6.1.


 


“Person” means any individual, corporation, partnership,
limited liability company, joint venture, association, joint-stock company,
trust, unincorporated organization or Governmental Authority.


 


“Plan” means an employee benefit plan (as defined in Section 3(3) of
ERISA) maintained for employees of any Obligor or ERISA Affiliate.


 


18

















 


“Platform” has the meaning specified in Section 9.5(a).


 


“Pricing Grid” means the pricing grid attached as Exhibit C.


 


“Primary Mortgage” means (a) that certain
Restated Mortgage and Security Agreement Mortgage Short-Term Redemption dated
as of September 15, 1998 from the Borrower to CoBank, as
successor-in-interest to St. Paul Bank for Cooperatives, as collateral
agent, which was recorded in Pembina County, North Dakota on September 23,
1998, Document No. 214908, Traill County, North Dakota on September 23,
1998, Document No. 149700, Clay County, Minnesota on September 23,
1998, Document No. 515813, and Polk County, Minnesota, on September 23,
1998, Document No. 563067; as amended by a Modification Agreement to
Restated Mortgage and Security Agreement Mortgage Short-Term Redemption dated
as of January 15, 2003, which was recorded in Pembina County, North Dakota
on February 3, 2003, Document No. 224279, Traill County, North Dakota
on February 3, 2003, Document No. 155874, Clay County, Minnesota on February 3,
2003, Document No. 572459, and Polk County, Minnesota on February 4,
2003, Document No. 600131; as amended by a Second Modification Agreement
to Restated Mortgage and Security Agreement Mortgage Short-Term Redemption
dated as of July 31, 2006, which was recorded in Pembina County, North
Dakota on September 6, 2006, Document No. 231885, Traill County, North
Dakota on September 6, 2006, Document No. 167053, Clay County,
Minnesota, and Polk County, Minnesota on September 7, 2006, Document No. 632920;
and as further amended by a Third Modification Agreement to Restated Mortgage
and Security Agreement Mortgage Short-Term Redemption of even date herewith;
and (b) that certain Mortgage and Security Agreement dated as of January 15,
2003 from the Guarantor to CoBank, as collateral agent, which was recorded in
Richland County, Montana on January 31, 2003, Document No. 516256,
Book B-178 at pages 540-577, as amended by a First Amendment to Mortgage
and Security Agreement of even date herewith.


 


“Prime Rate” means, for any day, the rate of interest referred
to as the “U.S. Prime Rate” as reported on such day in the Money Rates section
of The Wall Street Journal, or, if The Wall Street Journal shall
cease publication or publication of the “U.S. Prime Rate”, any similar
successor rate designated by the Administrative Agent in its reasonable
discretion. Such rate is a reference rate and does not necessarily represent
the lowest or best rate actually charged to any customer.  CoBank or any other Lender may make
commercial loans or other loans at rates of interest at, above or below the
Prime Rate.


 


“Prior Credit Agreement” has the meaning specified
in the preamble.


 


“Quoted Rate” means, for a Quoted Rate Period, the per
annum rate quoted by the Administrative Agent in its sole discretion, pursuant
to Section 2.7.


 


“Quoted Rate Advance” means any Advance that
bears interest at a rate determined by reference to a Quoted Rate.


 


19

















 


“Quoted Rate Loan” means any Loan that bears
interest at a rate determined by reference to a Quoted Rate, including Quoted
Rate Advances.


 


“Quoted Rate Period” means, relative to any
Quoted Rate Loan, the period beginning on (and including) the date on which
such Quoted Rate Loan is made, or continued as, or converted into, a Quoted
Rate Loan pursuant to Sections 2.2(d), 2.4, 2.6
and 2.7 and shall end on (but exclude)
the day that is determined by the Administrative Agent in its sole discretion,
pursuant to Section 2.7; provided,
however, that:


 


(a)           the Quoted Rate Period shall begin on a Business Day
and shall continue for a period of not less than 30 days;


 


(b)           no more than ten (10) different Quoted Rate
Periods may be outstanding at any one time for each Facility;


 


(c)           if a Quoted Rate Period would otherwise end on a day
that is not a Business Day, such Quoted Rate Period shall end on the next
following Business Day; and


 


(d)            no Quoted Rate Period may end later than the
Maturity Date for the applicable Facility.


 


“Rate Hedging Arrangements” means any arrangement of a
Person having the effect of hedging, limiting or putting a cap on, or collar
around, the extent to which such Person would be adversely affected by
fluctuations in interest rates, currency exchange rates, or commodity or energy
prices.


 


“Rate Hedging Obligations” means any debt, liability
or other obligation of any Obligor owing to any Lender or an Affiliate of a
Lender with respect to any Rate Hedging Arrangements.


 


“Redeemable Capital Stock” means, with respect to any
Person, any Capital Stock of such Person that, either by its terms, by the
terms of any security into which it is convertible or exchangeable or
otherwise, (a) is or upon the happening of an event or passage of time
would be required to be redeemed (for consideration other than shares of the
common equity capital of such Person) on or prior to the Maturity Date; (b) is
redeemable at the option of the holder thereof (for consideration other than
shares of the common equity capital of such Person); or (c) is convertible
into or exchangeable for debt securities.


 


“Register” has the meaning specified in Section 9.3(c).


 


“Reportable Event” means a reportable event
(as defined in section 4043 of ERISA), other than an event for which the 30-day
notice requirement under ERISA has been waived in regulations issued by the
Pension Benefit Guaranty Corporation.


 


“Required Lenders” means one or more Lenders
(including Voting Participants in accordance with Section 9.3(g)) having an aggregate Percentage of at
least 51%; 


 


20

















 


provided,
however, that if any Lender is a Defaulting Lender at such time of
determination, the Percentage of such Defaulting Lender (including any of such
Defaulting Lender’s Voting Participants) shall be excluded from the
determination of Required Lenders; provided, further, that at any time during
which only one Lender exists, “Required Lenders”
means the Lender.


 


“Required Payment” has the meaning specified
in Section 2.17(c).


 


“Restricted Payment” means any payment on
account of any shares, interests, participations, convertible debentures,
warrants or other equivalents of any Obligor, including but not limited to any
dividend or distribution and any payment in purchase, redemption, retirement or
other acquisition thereof, or any other payment or distribution for any reason
to or for the account or benefit of any Affiliate, together with any redemption
or purchase of, or distribution in respect of, any of the foregoing; not
including, however, (a) payments to officers and Directors of the Borrower
in the ordinary course of business pursuant to market terms and conditions; (b) redemptions
of any shares, equity interests, participation or other equivalents of a
deceased member of an Obligor; and (c) the annual revolvement of unit
retains, or retained patronage that occurs in the ordinary course of business.


 


“Revolving Credit Facility” means the revolving credit
facility being made available to the Borrower by the Lenders pursuant to Section 2.1(a).


 


“Revolving Credit Facility Advance” means a loan of funds by a
Lender to the Borrower under the Revolving Credit Facility, including Base Rate
Loans, LIBOR Loans and Quoted Rate Loans made thereunder.


 


“Revolving Credit Facility Borrowing” means a Borrowing
consisting of a Revolving Credit Facility Advance by each of the Revolving
Credit Facility Lenders.


 


“Revolving Credit Facility Commitment” means, with respect to each
Lender, (a) the amount so designated opposite such Lender’s name on Exhibit A, plus or minus any such amount assumed or
assigned pursuant to any Assignment and Assumption; or (b) as the context
may require, the obligation of such Lender to make Revolving Credit Facility
Advances under Section 2.1(a) and
participate in Letters of Credit in accordance with Section 2.9(c).


 


“Revolving Credit Facility Lender” means any Lender with a
Revolving Credit Facility Commitment.


 


“Revolving Credit Facility Note” means a promissory note of
the Borrower payable to a Lender in the amount of such Lender’s Revolving
Credit Facility Commitment, in substantially the form of Exhibit D.


 


“Revolving Credit Facility Outstanding Amount” means, as of
the date of determination, the sum of (a) the aggregate principal amount
of all outstanding Revolving Credit Facility Advances; and (b) the Letter
of Credit Exposure under the Revolving Credit Facility.


 


21
















 


“Revolving Credit Facility Termination Date” means the
earlier of (a) the applicable Maturity Date for the Revolving Credit
Facility; and (b) the date on which the Revolving Credit Facility
Commitments are terminated pursuant to Section 2.16(a) or 7.2 or reduced
to zero pursuant to Section 2.16(a).


 


“Revolving Letter of Credit Advance” means a loan of funds by a
Lender to the Borrower under the Revolving Letter of Credit Facility, including
Base Rate Loans, LIBOR Loans and Quoted Rate Loans made thereunder.


 


“Revolving Letter of Credit Borrowing” means a Borrowing
consisting of a Revolving Letter of Credit Advance by each of the Revolving
Letter of Credit Lenders.


 


“Revolving Letter of Credit Commitment” means, with respect to each
Lender, (a) the amount so designated opposite such Lender’s name on Exhibit A, plus or minus any such amount assumed or
assigned pursuant to any Assignment and Assumption; or (b) as the context
may require, the obligation of such Lender to make Revolving Letter of Credit
Advances under Section 2.1(d) and
participate in Letters of Credit in accordance with Section 2.9(c).


 


“Revolving Letter of Credit Commitment Termination Date” means the
earlier of (a) the applicable Maturity Date for such Facility; and (b) the
date on which the Revolving Letter of Credit Commitments are terminated
pursuant to Section 2.16(a) or 7.2 or reduced to zero pursuant to Section 2.16(a).


 


“Revolving Letter of Credit Facility” means the revolving credit
facility being made available to the Borrower by the Lenders pursuant to Section 2.1(d).


 


“Revolving Letter of Credit Facility Outstanding Amount” means, as of
the date of determination, the sum of (a) the aggregate principal amount
of all outstanding Revolving Letter of Credit Advances; and (b) the Letter
of Credit Exposure under the Revolving Letter of Credit Facility.


 


“Revolving Letter of Credit Lender” means any Lender with a
Revolving Letter of Credit Commitment.


 


“Revolving Letter of Credit Note” means a promissory note of
the Borrower payable to a Lender in the amount of such Lender’s Revolving
Letter of Credit Commitment, in substantially the form of Exhibit G.


 


“Revolving Term Loan T01 Advance” means a loan of funds by a
Lender to the Borrower under the Revolving Term Loan T01 Facility, including
Base Rate Loans, LIBOR Loans and Quoted Rate Loans made thereunder.


 


“Revolving Term Loan T01 Availability Termination Date” means August 1,
2010.


 


“Revolving Term Loan T01 Borrowing” means a Borrowing
consisting of a Revolving Term Loan T01 Advance by each of the Revolving Term
Loan T01 Lenders.


 


22

















 


“Revolving Term Loan T01 Commitment” means, with respect to each
Lender, (a) the amount so designated opposite such Lender’s name on Exhibit A,
plus or minus any such amount assumed or assigned pursuant to any Assignment
and Assumption; or (b) as the context may require, the obligation of such
Lender to make Revolving Term Loan T01 Advances under Section 2.1(b).


 


“Revolving Term Loan T01 Commitment Termination Date” means the
earlier of (a) the applicable Maturity Date for such Facility; (b) the
Revolving Term Loan T01 Availability Termination Date; and (c) the date on
which the Revolving Term Loan T01 Commitments are terminated pursuant to Section 7.2.


 


“Revolving Term Loan T01 Facility” means the revolving credit
facility being made available to the Borrower by the Lenders pursuant to Section 2.1(b).


 


“Revolving Term Loan T01 Facility Outstanding Amount” means, as of
the date of determination, the aggregate principal amount of all outstanding
Revolving Term Loan T01 Advances.


 


“Revolving Term Loan T01 Lender” means any Lender with a
Revolving Term Loan T01 Commitment.


 


“Revolving Term Loan T01 Note” means a promissory note of
the Borrower payable to a Lender in the amount of such Lender’s Revolving Term
Loan T01 Commitment, in substantially the form of Exhibit E.


 


“Revolving Term Loan T06 Advance” means a loan of funds by a
Lender to the Borrower under the Revolving Term Loan T06 Facility, including
Base Rate Loans, LIBOR Loans and Quoted Rate Loans made thereunder.


 


“Revolving Term Loan T06 Availability Termination Date” means August 1,
2010.


 


“Revolving Term Loan T06 Borrowing” means a Borrowing
consisting of a Revolving Term Loan T06 Advance by each of the Revolving Term
Loan T06 Lenders.


 


“Revolving Term Loan T06 Commitment” means, with respect to each
Lender, (a) the amount so designated opposite such Lender’s name on Exhibit A, plus or minus any such amount assumed or
assigned pursuant to any Assignment and Assumption; or (b) as the context
may require, the obligation of such Lender to make Revolving Term Loan T06
Advances under Section 2.1(c).


 


“Revolving Term Loan T06 Commitment Termination Date” means the
earlier of (a) the applicable Maturity Date for such Facility; (b) the
Revolving Term Loan T06 Availability Termination Date; and (c) the date on
which the Revolving Term Loan T06 Commitments are terminated pursuant to Section 7.2.


 


“Revolving Term Loan T06 Facility” means the revolving credit
facility being made available to the Borrower by the Lenders pursuant to Section 2.1(c).


 


23

















 


“Revolving Term Loan T06 Facility Outstanding Amount” means, as of
the date of determination, (a) the aggregate principal amount of all
outstanding Revolving Term Loan T06 Advances; and (b) the Letter of Credit
Exposure under the Revolving Term Loan T06 Facility.


 


“Revolving Term Loan T06 Lender” means any Lender with a
Revolving Term Loan T06 Commitment.


 


“Revolving Term Loan T06 Note” means a promissory note of
the Borrower payable to a Lender in the amount of such Lender’s Revolving Term
Loan T06 Commitment, in substantially the form of Exhibit F.


 


“Secured Obligations” means the Obligations
arising under the Revolving Term Loan T01 Facility, the Revolving Term Loan T06
Facility and the Revolving Letter of Credit Facility.


 


“Securities” means any stock, shares,
partnership interests, voting trust certificates, certificates of interest or
participation in any profit-sharing agreement or arrangement, options,
warrants, bonds, debentures, notes, or other evidences of indebtedness, secured
or unsecured, convertible, subordinated, certificated or uncertificated, or
otherwise, or in general any instruments commonly known as “securities”
or any certificates of interest, shares or participations in temporary or
interim certificates for the purchase or acquisition of, or any right to
subscribe to, purchase or acquire, any of the foregoing.


 


“Security Documents” means each Mortgage and
each and every additional agreement entered into by any Obligor for the benefit
of the Lender Parties to secure payment of the Obligations or the Secured
Obligations or otherwise relating to any Collateral.


 


“Shareholder” means, with respect to any Person, the holder
of any legal or beneficial interest in any Capital Stock of that Person.


 


“Shareholders’ Equity” means, with respect to any
Person, the difference (positive only) between (a) the total assets of
such Person and (b) the total liabilities of such Person, all calculated
in accordance with GAAP.


 


“Subordinated Debt” means all Debt that has
been subordinated to payment of the Obligations on terms and conditions
satisfactory to the Required Lenders, in their sole discretion, as to the right
and time of payment and as to any other rights and remedies thereunder.


 


“Subordination Agreement” means an agreement (in form
and substance satisfactory to the Required Lenders) executed and delivered by
each holder of Subordinated Debt in favor of the Administrative Agent, for the
benefit of the Lender Parties, pursuant to which such Person subordinates
payment of such Subordinated Debt or other obligations as therein provided to
payment of the Obligations to the extent provided therein and all amendments
and supplements thereto and modifications thereof.


 


24

















 


“Subsidiary” means, with respect to a Person, any corporation,
partnership, limited liability company or other entity of which more than 50%
of the outstanding Capital Stock having general voting power under ordinary
circumstances to elect a majority of the Governing Board of such entity,
irrespective of whether or not at the time stock or membership interests of any
other class or classes shall have or might have voting power by reason of the
happening of any contingency, is at the time directly or indirectly owned by
such Person.  Unless otherwise specified,
“Subsidiary” means a Subsidiary of the
Borrower.


 


“Synthetic Lease” means, with respect to any Person, any lease
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) (a) that is not a Capital
Lease, and (b) in respect of which the lessee retains or obtains ownership
of the property so leased for federal income tax purposes, other than any such
lease under which such Person is the lessor.


 


“Tax Expense” means, with respect to any Person for the
applicable period, the amount of such Person’s taxes payable in cash, and the
current portion of any deferred taxes, as a result of income earned by such
Person.


 


“Taxes” means all present or future taxes, levies, imposts,
duties, deductions, withholdings, assessments, fees or other charges imposed by
any Governmental Authority, including any interest, additions to tax or
penalties applicable thereto.


 


“UCC” means the Uniform Commercial Code as in effect from
time to time in the state designated in Section 9.9(a) as the state whose laws shall govern this Agreement, or
in any other state whose laws are held to govern this Agreement or any portion
hereof.


 


“Unused Fee” has the meaning specified in Section 2.14(a).


 


“Unusual LIBOR Event” means the occurrence of any
of the events listed in Section 2.18(a)(i)-(iii).


 


“Voting Participant” has the meaning specified
in Section 9.3(g).


 


“Voting Participant Notification” has the meaning specified
in Section 9.3(g).


 


Section 1.2            Times.  All references to times of day in this
Agreement shall be references to Denver, Colorado time unless otherwise
specifically provided.


 


ARTICLE II

CREDIT FACILITIES


 


Section 2.1           Commitments
as to Facilities.


 


(a)           Revolving Credit Facility.  Each Revolving Credit Facility Lender hereby
agrees, on the terms and subject to the conditions herein set forth, including
but not limited to satisfaction of all conditions set forth in Section 3.2, to make Revolving Credit 


 


25

















 


Facility
Advances to the Borrower from time to time during the period from the Closing
Date to and including the Revolving Credit Facility Termination Date, in an
aggregate amount at any time outstanding not to exceed such Revolving Credit
Facility Lender’s Percentage of each Borrowing from time to time requested by
the Borrower under the Revolving Credit Facility; provided, however, that (i) the
Aggregate Short-Term Loan Amount shall at no time exceed the Borrowing Base;
and (ii) no Revolving Credit Facility Lender’s Percentage of the Revolving
Credit Facility Outstanding Amount shall at any time exceed such Revolving
Credit Facility Lender’s Revolving Credit Facility Commitment.  Within the above limits, the Borrower may
obtain Revolving Credit Facility Advances, prepay Revolving Credit Facility
Advances in accordance with the terms hereof and reborrow Revolving Credit
Facility Advances in accordance with the applicable terms and conditions of
this Article II.


 


(b)           Revolving Term Loan T01 Facility.  Each Revolving Term Loan T01 Lender hereby
agrees, on the terms and subject to the conditions herein set forth, including
but not limited to satisfaction of all conditions set forth in Section 3.2, to make Revolving Term Loan T01 Advances
to the Borrower from time to time during the period from the Closing Date to
and including the Revolving Term Loan T01 Commitment Termination Date, in an
aggregate amount at any time outstanding not to exceed such Revolving Term Loan
T01 Lender’s Percentage of each Borrowing from time to time requested by the
Borrower under the Revolving Term Loan T01 Facility; provided, however,
that no Revolving Term Loan T01 Lender’s Percentage of the Revolving Term
Loan T01 Facility Outstanding Amount shall at any time exceed such Revolving
Term Loan T01 Lender’s Revolving Term Loan T01 Commitment.  Within the above limits, the Borrower may
obtain Revolving Term Loan T01 Advances, prepay Revolving Term Loan T01
Advances in accordance with the terms hereof and reborrow Revolving Term Loan
T01 Advances in accordance with the applicable terms and conditions of this Article II.


 


(c)           Revolving Term Loan T06 Facility.  Each Revolving Term Loan T06 Lender hereby
agrees, on the terms and subject to the conditions herein set forth, including
but not limited to satisfaction of all conditions set forth in Section 3.2, to make Revolving Term Loan T06 Advances
to the Borrower from time to time during the period from the Closing Date to
and including the Revolving Term Loan T06 Commitment Termination Date, in an
aggregate amount at any time outstanding not to exceed such Revolving Term Loan
T06 Lender’s Percentage of each Borrowing from time to time requested by the
Borrower under the Revolving Term Loan T06 Facility; provided, however,
that no Revolving Term Loan T06 Lender’s Percentage of the Revolving Term
Loan T06 Facility Outstanding Amount shall at any time exceed such Revolving
Term Loan T06 Lender’s Revolving Term Loan T06 Commitment.  Within the above limits, the Borrower may
obtain Revolving Term Loan T06 Advances, prepay Revolving Term Loan T06
Advances in accordance with the terms hereof and reborrow Revolving Term Loan
T06 Advances in accordance with the applicable terms and conditions of this Article II.


 


(d)           Revolving Letter of Credit Facility.  Each Letter of Credit Lender hereby agrees,
on the terms and subject to the conditions herein set forth, including but not 


 


26

















 


limited
to satisfaction of all conditions set forth in Section 3.2, to make Revolving Letter of Credit
Advances to the Borrower from time to time during the period from the Closing
Date to and including the Revolving Letter of Credit Commitment Termination
Date, in an aggregate amount at any time outstanding not to exceed such
Revolving Letter of Credit Lender’s Percentage of each Borrowing from time to
time requested by the Borrower under the Revolving Letter of Credit Facility;
provided, however, that (i) no Revolving Letter of Credit Lender’s
Percentage of the Revolving Letter of Credit Facility Outstanding Amount shall
at any time exceed such Revolving Letter of Credit Lender’s Revolving Letter of
Credit Commitment and (ii) Revolving Letter of Credit Advances shall only
be available hereunder to fund amounts drawn under Letters of Credit issued
under the Revolving Letter of Credit Facility (or to reimburse a Letter of
Credit Lender for its prior payment of such amounts).  Within the above limits, the Borrower may
obtain Revolving Letter of Credit Advances, prepay Revolving Letter of Credit
Advances in accordance with the terms hereof and reborrow Revolving Letter of
Credit Advances in accordance with the applicable terms and conditions of this Article II,
but only to the extent necessary to fund Letters of Credit.


 


Section 2.2           Procedures
for Advances.


 


(a)           Borrowings.  Each Revolving Credit Facility Borrowing
shall be funded by the Revolving Credit Facility Lenders; each Revolving Term
Loan T01 Borrowing shall be funded by the Revolving Term Loan T01 Lenders; each
Revolving Term Loan T06 Borrowing shall be funding by the Revolving Term Loan
T06 Lenders; and each Revolving Letter of Credit Borrowing shall be funded by
the Revolving Letter of Credit Lenders. 
Each such Borrowing shall be funded as Base Rate Advances, LIBOR
Advances or Quoted Rate Advances, as the Borrower shall specify in the related
notice of proposed Borrowing.  Base Rate
Loans, LIBOR Loans and Quoted Rate Loans may be outstanding at the same time.


 


(b)           Base Rate Loans.  The principal amount of any Base Rate Loan
shall be in an amount equal to $1,000,000 or a higher integral multiple of
$1,000,000.  The Borrower shall give
notice to the Administrative Agent of each proposed Borrowing that is to bear
interest initially at a Base Rate not later than 1:00 p.m. (Denver time)
on a Business Day that is at least 1 Business Day prior to the proposed date of
such Borrowing.


 


(c)           LIBOR Loans.  The principal amount of any LIBOR Loan shall
be in an amount equal to $5,000,000 or a higher integral multiple of
$1,000,000.  The Borrower shall give
notice to the Administrative Agent of each proposed Borrowing that is to bear
interest initially at a LIBO Rate not later than 11:00 a.m. (Denver time)
on a Business Day that is at least 3 Business Days prior to the proposed date
of such Borrowing.


 


(d)           Quoted Rate Loans.  The principal amount of any Quoted Loan shall
be in an amount equal to $2,000,000 or a higher integral multiple of
$500,000.  The Borrower shall give notice
to the Administrative Agent of each proposed Borrowing that is to bear interest
initially at a Quoted Rate not later than 11:00 a.m. (Denver time) on a
Business Day that is at least 1 Business Day prior to the proposed date of such
Borrowing.


 


27

















 


(e)           Notices; Proceeds.  Each notice described in subsections (b), (c) and
(d) above shall be effective upon receipt by the Administrative Agent,
shall be in writing or by telephone or telecopy transmission, to be confirmed
in writing by the Borrower if so requested by the Administrative Agent (in the
form of Exhibit H), and shall
specify whether the Borrowing is to bear interest initially at a Base Rate, a
LIBO Rate or a Quoted Rate and, in the case of a Borrowing that is to bear
interest initially at a LIBO Rate, shall specify the Interest Period to be
applicable thereto.  Promptly upon
receipt of such notice (but in no event later than the close of business on the
Business Day of receipt of such notice), the Administrative Agent shall advise
each Lender to the applicable Facility of the proposed Borrowing.  Subject to satisfaction of the conditions
precedent set forth in Article III
with respect to such Borrowing, at or before 10:00 a.m. (Denver time) on
the date of the requested Borrowing for a LIBOR Advance, Base Rate Advance or
Quoted Rate Advance, each of the Revolving Credit Facility Lenders, Revolving
Term Loan T01 Lenders, Revolving Term Loan T06 Lenders or Revolving Letter of
Credit Lenders, as applicable, shall provide the Administrative Agent at the
principal office of the Administrative Agent in Denver, Colorado (or such other
office as the Administrative Agent may designate), with immediately available
funds covering such Lender’s Percentage of such Borrowing.  The Administrative Agent shall pay over
proceeds of such Borrowing to the Borrower, in immediately available funds,
prior to the close of business on the date of the requested Borrowing.


 


Section 2.3           Converting Base Rate Loans to LIBOR
Loans; Procedures.  So long as
no Default or Event of Default shall exist, the Borrower may convert all or any
part of any outstanding Base Rate Loan into a LIBOR Loan by giving notice to
the Administrative Agent of such conversion not later than 11:00 a.m.
(Denver time) on a Business Day that is at least 3 Business Days prior to the
date of the requested conversion.  Each
such notice shall be irrevocable, shall be effective upon receipt by the
Administrative Agent, shall be in writing or by telephone or telecopy
transmission, to be confirmed in writing by the Borrower if so requested by the
Administrative Agent (in the form of Exhibit I), shall specify the date and amount of such conversion, the total
amount of the Base Rate Loan to be so converted and the Interest Period
therefor.  Each conversion of a Base Rate
Loan to a LIBOR Loan shall be on a Business Day, and the aggregate amount of
each such conversion of a Base Rate Loan shall be in an amount equal to
$5,000,000 or a higher integral multiple of $1,000,000.


 


Section 2.4           Converting Base Rate Loans to
Quoted Rate Loans; Procedures.  So long as no Default or Event of Default
shall exist, the Borrower may convert all or any part of any outstanding Base
Rate Loan into a Quoted Rate Loan by giving notice to the Administrative Agent
of such conversion not later than 11:00 a.m. on a Business Day that is at
least 1 Business Day prior to the date of the requested conversion.  Each such notice shall be irrevocable, shall
be effective upon receipt by the Administrative Agent, shall be in writing or
by telephone or telecopy transmission, to be confirmed in writing by the
Borrower if so requested by the Administrative Agent (in the form of Exhibit J), shall specify the date and amount of such
conversion and the total amount of the Loan to be so converted.  Each conversion of a Base Rate Loan to a
Quoted Rate Loan shall be on a Business Day, and the aggregate amount of each
such conversion shall be an amount equal to $2,000,000 or a higher integral
multiple of $500,000.


 


28
















 


Section 2.5           Procedures at End of an Interest
Period.  Unless the Borrower requests a
new LIBOR Loan in accordance with the procedures set forth in this Section, or
prepays the principal of an outstanding LIBOR Loan at the expiration of an
Interest Period, each Lender shall automatically and without request of the
Borrower convert each LIBOR Loan to a Base Rate Loan on the last day of the
relevant Interest Period.  So long as no
Default or Event of Default shall exist, the Borrower may cause all or any part
of any outstanding LIBOR Loan to continue to bear interest at a LIBO Rate after
the end of the then-applicable Interest Period by notifying the Administrative
Agent not later than 11:00 a.m. on a Business Day that is at least 3
Business Days prior to the first day of the new Interest Period.  Each such notice shall be effective when
received by the Administrative Agent, shall be in writing or by telephone or
telecopy transmission, to be confirmed in writing by the Borrower if so
requested by the Administrative Agent (in the form of Exhibit K), and shall specify the first day of the
applicable Interest Period, the amount of the expiring LIBOR Loan to be
continued and the new Interest Period therefor. 
Each new Interest Period shall begin on a Business Day and the amount of
each Loan bearing a new LIBO Rate shall be in an amount equal to $5,000,000 or
a higher integral multiple of $1,000,000.


 


Section 2.6           Procedures at End of a Quoted Rate
Period.  Unless the Borrower requests a
new Quoted Rate Loan in accordance with the procedures set forth in this
Section, or prepays the principal of an outstanding Quoted Rate Loan at the
expiration of a Quoted Rate Period, each Lender shall automatically and without
request of the Borrower convert each Quoted Rate Loan to a Base Rate Loan, on
the last day of the relevant Quoted Rate Period.  So long as no Default or Event of Default
shall exist, the Borrower may cause all or any part of any outstanding Quoted
Rate Loan to continue to bear interest at a Quoted Rate after the end of the
then applicable Quoted Rate Period by notifying the Administrative Agent not
later than 11:00 a.m. on a Business Day that is at least 1 Business Day
prior to the first day of the new Quoted Rate Period.  Each such notice shall be effective when received
by the Administrative Agent, shall be in writing or by telephone or telecopy
transmission, to be confirmed in writing by the Borrower if so requested by the
Administrative Agent (in the form of Exhibit L), and shall specify the first day of the applicable Quoted Rate
Period, the amount of the expiring Quoted Rate Loan to be continued and the new
Quoted Rate Period therefor.  Each new
Quoted Rate Period shall begin on a Business Day and the amount of each Loan
bearing a new Quoted Rate shall be in an amount equal to $2,000,000 or a higher
integral multiple of $500,000.


 


Section 2.7           Procedures for Determining Quoted
Rate and Quoted Rate Period applicable to Quoted Rate Loans.  Upon receipt of a request for a Quoted Rate
Loan from the Borrower, the Administrative Agent shall notify the Borrower of
the proposed Quoted Rate and the Quoted Rate Period to be applicable to the
requested Quoted Rate Loan.  The Borrower
may decline to accept a proposed Quoted Rate and the applicable Quoted Rate
Period by notifying the Administrative Agent not later than the close of
business on the same business day as the Borrower receives notice of the
proposed Quoted Rate.  If the Borrower
declines to accept a proposed Quoted Rate and the applicable Quoted Rate
Period, the requested Quoted Rate Loan shall automatically and without further
request of the Borrower be converted into a Base Rate Loan on the first day of
the requested Quoted Rate Period.


 


29

















 


Section 2.8           Setting and
Notice of LIBO Rate and Base Rate.


 


(a)           LIBO Rate.  The applicable LIBO Rate for each Interest
Period shall be determined by the Administrative Agent on the second Business
Day prior to the beginning of such Interest Period, whereupon notice thereof (which
may be by telephone) shall be given by the Administrative Agent to the Borrower
and each Lender, as applicable.  Each
such determination of the LIBO Rate shall be conclusive and binding upon the
parties hereto, in the absence of manifest error.  The Administrative Agent, upon written
request of the Borrower or any Lender, shall deliver to the Borrower or such
requesting Lender a statement showing the computations used by the
Administrative Agent in determining the applicable LIBO Rate hereunder.


 


(b)           Base Rate.  Each determination by the Administrative
Agent of the applicable Base Rate shall be conclusive and binding upon the
parties hereto, in the absence of manifest error.  The Administrative Agent, upon written
request of the Borrower or any Lender, shall deliver to the Borrower or such
requesting Lender a statement showing the computations used by the
Administrative Agent in determining the applicable Base Rate hereunder.


 


Section 2.9           Commitment to Issue Letters of
Credit.  The Letter of Credit Issuer
agrees, from the Closing Date to and including the sixtieth (60th) day prior to
the Revolving Credit Facility Termination Date, the Revolving Term Loan T06
Commitment Termination Date or the Revolving Letter of Credit Commitment
Termination Date, as applicable, to issue one or more letters of credit for the
account of the Borrower.  Each Letter of
Credit Lender under a Letter of Credit Facility agrees to participate in the
risk of such letters of credit issued for the account of the Borrower under
such Letter of Credit Facility, on the terms and subject to the conditions set
forth below:


 


(a)           Each letter of credit issued pursuant to this Section 2.9, shall be referred to herein as a “Letter of Credit.”  No Letter of Credit shall be issued by the
Letter of Credit Issuer if, after giving effect to the issuance of such Letter
of Credit (i) the Letter of Credit Exposure in respect of any Letter of
Credit Facility would exceed the Letter of Credit Sublimit for such Facility;
or (ii) with respect to a Letter of Credit issued under the Revolving
Credit Facility, the Aggregate Short-Term Loan Amount would exceed the
Borrowing Base.  The expiration date of
any Letter of Credit shall not be later than the earlier of (A) one year
after the date of issuance of such Letter of Credit; and (B) 30 days prior
to the Maturity Date for the applicable Letter of Credit Facility.  Each Letter of Credit will be issued under
and pursuant to the terms and conditions of such Letter of Credit Documents as
the Letter of Credit Issuer may reasonably require.  The Borrower shall request a Letter of Credit
upon not less than 1 Business Day  prior written
application on the Letter of Credit Issuer’s standard form or such other form
as may be agreed upon by the Letter of Credit Issuer and the Borrower.  Any request for a Letter of Credit shall
specify the Letter of Credit Facility under which such Letter of Credit is to
be issued.  If any of the terms of any
Letter of Credit Document are inconsistent with the terms and provisions of
this Agreement, the terms and provisions of this Agreement shall govern.  The Letter of Credit Issuer shall not be
obligated to issue a Letter of Credit unless on the date of issuance all of the
conditions precedent specified in Section 3.2
shall have been satisfied as fully as if the issuance of such Letter of Credit
were an Advance.  Promptly after issuance
of a Letter of Credit pursuant hereto, the Administrative Agent 


 


30

















 


shall
so advise each Lender under the applicable Letter of Credit Facility of all
relevant information with respect thereto.


 


(b)           The Borrower will pay to the Administrative Agent,
for the sole and exclusive account of the Letter of Credit Issuer, an issuing
fee with respect to each Letter of Credit in an amount equal to the greater of (i) 0.10%
of the amount of such Letter of Credit or (ii) $2,500  (the
“Issuing Fee”).  The Borrower also will pay to the
Administrative Agent, for the pro rata account of the applicable Letter of
Credit Lenders, a commission with respect to each Letter of Credit (the “Letter of Credit Fee”) at an annual rate equal to the sum
of (i) the applicable Margin for Letters of Credit in effect on the date
payment thereof becomes due and payable hereunder with respect to Letters of
Credit constituting standby letters of credit; and (ii) such fee as shall
be determined by the Required Lenders under the applicable Letter of Credit
Facility with respect to Letters of Credit constituting commercial letters of
credit.  The Letter of Credit Fee shall
be payable quarterly in arrears on the tenth calendar day following the end of
each Fiscal Quarter, and on the Maturity Date, or upon such other terms as may
be agreed upon by the Borrower and the Required Lenders at the time of issuance
of any such Letter of Credit; provided, however, that from and after the
occurrence of an Event of Default and continuing thereafter until such Event of
Default shall be remedied to the written satisfaction of the Required Lenders,
upon written notice from the Administrative Agent the applicable Margin payable
hereunder with respect to each Letter of Credit shall be equal to the sum of (i) the
Margin otherwise in effect with respect to such Letter of Credit; and (ii) 2.00%.  Letter of Credit Fees payable by the Borrower
to the Lenders in accordance with this subsection (b) shall be shared
among the applicable Letter of Credit Lenders on a pro rata basis in accordance
with their respective Percentages.


 


(c)           Upon issuance of a Letter of Credit under a Letter
of Credit Facility hereunder, and without any further notice to any Lender,
each Letter of Credit Lender under such Letter of Credit Facility shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from
the Letter of Credit Issuer an undivided participating interest in the Letter
of Credit Issuer’s risk and obligation under the Letter of Credit issued under
such Letter of Credit Facility, and in the obligation of the Letter of Credit
Issuer to honor drafts thereunder, and in the amount of any drawing thereunder,
and in all rights of the Letter of Credit Issuer to obtain reimbursement from
the Borrower in the amount of such drawing, and all other rights of the Letter
of Credit Issuer with respect thereto, in an amount equal to such Letter of
Credit Lender’s Percentage of the maximum amount available to be drawn under
such Letter of Credit and the amount of any drawing thereunder.  Whenever a draft submitted under a Letter of
Credit is paid by the Letter of Credit Issuer, the Letter of Credit Issuer
shall so notify the Administrative Agent, the Administrative Agent shall so
notify each Letter of Credit Lender under the applicable Letter of Credit
Facility and shall request immediate reimbursement from the Borrower for the
amount of the draft.  If sufficient funds
are not immediately paid to the Administrative Agent by the Borrower, the
Borrower shall be deemed to have requested a Borrowing pursuant to Section 2.2 and the applicable Letter of Credit Lenders
shall be notified of such request in accordance with Section 2.2 and shall fund such request for a Borrowing
as Base Rate Advances (in accordance with their respective Percentages) for
purposes of reimbursing the Letter of Credit Issuer for the amount of such
draft so paid 


 


31

















 


by
the Letter of Credit Issuer (less any amounts realized by the Letter of Credit
Issuer pursuant to the second sentence of this Section 2.9(c)). 
If for any reason or under any circumstance (including but not limited to
the occurrence of a Default or Event of Default or the failure to satisfy any
of the conditions set forth in Section 3.2)
the applicable Letter of Credit Lenders do not make the Advances as
contemplated above and the Borrower does not otherwise reimburse the Letter of
Credit Issuer for the amount of the draft so paid by the Letter of Credit
Issuer, the Borrower shall nonetheless be obligated to reimburse the amount of
the draft to the Letter of Credit Issuer, with interest upon such amount at the
Default Rate from and after the date such draft is paid by the Letter of Credit
Issuer until the amount thereof is repaid to the Letter of Credit Issuer in
full.  If the Letter of Credit Issuer
shall not have obtained reimbursement for any drawing under a Letter of Credit
(whether from the Borrower or as proceeds of a Borrowing), upon demand of the
Administrative Agent each applicable Letter of Credit Lender shall immediately
advance the amount of its participation in such drawing to the Letter of Credit
Issuer and shall be entitled to interest on such participating interest at the
Default Rate until reimbursed in full by the Borrower.


 


(d)           Each Letter of Credit Lender and the Borrower agree
that, in paying any drawing under a Letter of Credit, the Letter of Credit
Issuer shall not have any responsibility to obtain any document (other than any
sight draft and certificates expressly required by such Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document.  The Letter of Credit Issuer shall not be
liable to any Lender for (i) any action taken or omitted in connection
herewith at the request or with the approval of the Lenders (including the
Required Lenders, as applicable); (ii) any action taken or omitted in the
absence of gross negligence or willful misconduct; or (iii) the due
execution, effectiveness, validity or enforceability of any document executed
in connection with a Letter of Credit.


 


(e)           The Borrower hereby assumes all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; provided that this assumption is not intended to, and shall
not, preclude the Borrower’s pursuing such rights and remedies as it may have
against the beneficiary or transferee at law or under any other agreement.  The Letter of Credit Issuer shall not be
liable or responsible for any of the matters described in clauses (i) through
(vii) of subsection (f) below. 
In furtherance and not in limitation of the foregoing: (i) the
Letter of Credit Issuer may accept documents that appear on their face to be in
order, without responsibility for further investigation, regardless of any
notice or information to the contrary; and (ii) the Letter of Credit
Issuer shall not be responsible for the validity or sufficiency of any
instrument transferring or assigning, or purporting to transfer or assign, a
Letter of Credit or the rights or benefits thereunder or proceeds thereof, in
whole or in part, which may prove to be invalid or ineffective for any reason.


 


(f)            The obligation of the Borrower under this Agreement
to reimburse the Letter of Credit Issuer for a drawing under a Letter of Credit
shall be unconditional and irrevocable, and shall be paid strictly in
accordance with the terms of this Agreement under all circumstances, including
the following:


 


32

















 


(i)            any lack of validity or enforceability of this
Agreement or any Letter of Credit Document;


 


(ii)           any change in the time, manner or place of payment
of, or in any other term of, all or any of the obligations of the Borrower in
respect of any Letter of Credit or any other amendment or waiver of, or any
consent to or departure from, any Letter of Credit Document;


 


(iii)          the existence of any claim, set-off, defense or
other right that the Borrower may have at any time against any beneficiary or
any transferee of any Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the Letter of Credit Issuer
or any other Person, whether in connection with this Agreement, the
transactions contemplated hereby or any unrelated transaction;


 


(iv)          any draft, demand, certificate or other document
presented under any Letter of Credit proving to be forged, fraudulent, invalid
or insufficient in any respect or any statement therein being untrue or
inaccurate in any respect; or any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any Letter
of Credit;


 


(v)           any payment by the Letter of Credit Issuer under any
Letter of Credit against presentation of a draft or certificate that does not
strictly comply with the terms of any Letter of Credit; or any payment made by
the Letter of Credit Issuer under any Letter of Credit to any Person purporting
to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit
of creditors, liquidator, receiver or other representative of or successor to
any beneficiary or any transferee of any Letter of Credit, including any
arising in connection with any insolvency proceeding;


 


(vi)          any exchange, release or non-perfection of any
collateral, or any release or amendment or waiver of, consent to or departure
from, any other guarantee, for all or any of the obligations of the Borrower in
respect of any Letter of Credit; and


 


(vii)         any other circumstance or happening whatsoever,
whether or not similar to any of the foregoing, including any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower or any Guarantor.


 


(g)           Notwithstanding anything in this Section 2.9 to the contrary, including particularly
subsections (e) and (f) above, the Borrower may have a claim
against the Letter of Credit Issuer and the Letter of Credit Issuer may be
liable to the Borrower, to the extent, but only to the extent, of any direct,
as opposed to consequential or exemplary, damages suffered by the Borrower that
the Borrower proves were caused by the Letter of Credit Issuer’s willful
misconduct or gross negligence or the willful and wrongful failure by the
Letter of Credit Issuer to pay under any Letter of Credit after the
presentation to 


 


33

















 


the
Letter of Credit Issuer by the beneficiary of a sight draft and certificate
strictly complying with the terms and conditions of such Letter of Credit.


 


(h)           The Borrower shall indemnify, protect, defend and
hold harmless each Indemnitee from and against all losses, liabilities, claims,
damages, judgments, costs and expenses, including but not limited to all
reasonable attorneys’ fees and legal expenses, incurred by the Indemnitees or
imposed upon the Indemnitees at any time by reason of the issuance, demand for
honor or honor of any Letter of Credit or the enforcement, protection or
collection of the Letter of Credit Issuer’s claims against the Borrower under
this Section 2.9 or by reason of any
act or omission of any Indemnitee in connection with any of the foregoing; provided,
however, that such indemnification shall not extend to losses, liabilities,
claims, damages, judgments, costs and expenses to the extent arising from any
act or omission of an Indemnitee that constitutes gross negligence or willful
misconduct.


 


(i)            The Borrower will pay to the Letter of Credit
Issuer, on demand, all administrative fees charged by the Letter of Credit
Issuer in the ordinary course of business in connection with the issuance of
letters of credit, honoring of drafts under letters of credit, amendments
thereto, transfers thereof and all other activity with respect to letters of
credit, at the then-current rates established by the Letter of Credit Issuer
from time to time for such services rendered on behalf of customers of the
Letter of Credit Issuer generally.


 


Section 2.10          Interest on Loans.  The Borrower will pay interest on the unpaid
principal amount of each Loan for the period commencing on the date of this
Agreement until the unpaid principal amount thereof is paid in full, in accordance
with the following:


 


(a)           Base Rate Loans.  Subject to subsection (d) below, while
any outstanding principal of a Loan constitutes a Base Rate Loan, the
outstanding principal balance thereof shall bear interest at an annual rate at
all times equal to the Base Rate applicable to such Base Rate Loan.


 


(b)           LIBOR Loans.  Subject to subsection (d) below, while
any outstanding principal of a Loan constitutes a LIBOR Loan, the outstanding
principal balance thereof shall bear interest for the applicable Interest
Period at an annual rate equal to the LIBO Rate established with respect such
LIBOR Loan.


 


(c)           Quoted Rate Loans.  Subject to subsection (d) below, while
any outstanding principal of a Loan constitutes a Quoted Rate Loan, the
outstanding principal balance thereof shall bear interest at an annual rate at
all times equal to the Quoted Rate applicable to such Quoted Rate Loan.


 


(d)           Default Rate.  From and after written notice from the
Administrative Agent to the Borrower following the occurrence of an Event of
Default and continuing thereafter until such Event of Default shall be remedied
to the written satisfaction of the Required Lenders, the outstanding principal
balance of each Loan shall bear interest at an annual rate equal to the sum of (i) the
higher of the Base Rate or any other interest rate 


 


34

















 


then
in effect with respect to such Loan; plus (ii) two percent (2.00%) (the “Default Rate”).  In
addition, any unreimbursed amounts payable under Section 2.9 and all fees, indemnification obligations
and other Obligations not paid when due hereunder shall bear interest, until
paid in full, at an annual rate equal to the Default Rate.


 


(e)           Savings Clause.  Notwithstanding anything in this Section 2.10 to the contrary, at no time shall the
Borrower be obligated or required to pay interest on any Obligation at a rate
that could subject any Lender to either civil or criminal liability as a result
of being in excess of the maximum interest rate permitted by applicable
law.  If, under the terms of this
Agreement or any other Loan Document, the Borrower is at any time required or
obligated to pay interest on any Obligation at a rate in excess of such maximum
rate, the LIBO Rate, Base Rate, Quoted Rate or Default Rate, as the case may
be, shall be deemed to be immediately reduced to such maximum rate and all
previous payments in excess of the maximum rate shall be deemed to have been
payments in reduction of principal and not on account of any interest thereon
due hereunder.  All sums paid or agreed
to be paid to a Lender for the use, forbearance or retention of any Obligation,
shall, to the extent permitted by applicable law, be amortized, prorated,
allocated and spread throughout the full stated term of the Obligation to which
such payment applies until payment in full so that the rate or amount of
interest on account of any such Obligation does not exceed the maximum lawful
rate of interest from time to time in effect and applicable to such Obligation
for so long as the Obligation is outstanding.


 


Section 2.11        Obligation to Repay Advances;
Representations.  The
Borrower shall be obligated to repay all Advances under this Article II
notwithstanding the failure of the Administrative Agent to receive any written
request therefor or written confirmation thereof and notwithstanding the fact
that the Person requesting the same was not in fact authorized to do so.  Any request for a Credit Extension, whether
written, telephonic, telecopy or otherwise, shall be deemed to be a representation
by the Borrower that (i) the statements set forth in Section 3.2 are correct as of the time of the request;
and (ii) if such Credit Extension is a Revolving Credit Facility
Borrowing, the amount of the requested Borrowing, when added to the Aggregate
Short-Term Loan Amount, would not cause the Aggregate Short-Term Loan Amount to
exceed the Borrowing Base.


 


Section 2.12        Notes;
Payment Dates; Mandatory Prepayments.


 


(a)           Promissory Notes Optional.  The Borrower’s obligation to repay the
principal of, and interest on, the Advances made by each Lender shall be
evidenced in the Register and shall, if requested by such Lender, also be
evidenced by a Note, duly executed and delivered by the Borrower, with blanks
appropriately completed, with respect to Advances made by such Lender.


 


(b)           Interest.  The Borrower shall pay accrued but unpaid
interest on each Loan on each Interest Payment Date with respect to that Loan.


 


35

















 


(c)           Revolving Credit Facility Principal.  The aggregate unpaid principal amount of all
Revolving Credit Facility Advances shall be payable on the applicable Maturity
Date.


 


(d)           Revolving Term Loan T01
Facility Principal.  (i) A
principal payment of $17,000,000 shall be due and payable on December 31,
2009 (but such amount shall not reduce the Revolving Term Loan T01 Commitment);
(ii) a principal payment of fifty percent of the then-outstanding
principal balance of the Revolving Term Loan T01 Facility shall be due and
payable on December 31, 2010; and (iii) the entire remaining unpaid
principal balance of the Revolving Term Loan T01 Facility shall be due and
payable on the applicable Maturity Date.


 


(e)           Revolving Term Loan T06
Facility Principal.  (i) A
principal payment equal to fifty percent of the then-outstanding principal
balance of the Revolving Term Loan T06 Facility shall be due and payable on December 31,
2010; and (ii) the entire remaining unpaid principal balance of the
Revolving Term Loan T06 Facility shall be due and payable on the applicable
Maturity Date.


 


(f)            Revolving Letter
of Credit Facility Principal.  The aggregate unpaid principal amount of all
Revolving Letter of Credit Advances shall be payable on the applicable Maturity
Date.


 


(g)           Mandatory Prepayments
From Other Sources.  In addition
to the payments described elsewhere in this Section 2.12, promptly following the receipt thereof,
the Borrower shall prepay the Obligations in an amount equal to 100% of the Net
Proceeds realized by any Obligor from:


 


(i)            any sale, transfer or other
disposition (including pursuant to a sale and leaseback transaction) of any
property or asset of any Obligor, other than dispositions described in clauses
(a), (b) or (c) of Section 6.8;


 


(ii)           any casualty or other
insured damage to, or any taking under power of eminent domain or by
condemnation or similar proceeding of, any property or asset of any Obligor,
but only to the extent that the net proceeds therefrom have not been applied,
or committed pursuant to an agreement (including any purchase orders) to be
applied, to repair, restore or replace such property or asset within 180 days
after such event.


 


Nothing
in this paragraph (g) shall be deemed to authorize or constitute consent
to any transaction (including but not limited to any sale of assets or the
issuance of any debt or equity) that otherwise would be prohibited or
restricted under this Agreement or under any other Loan Document.  Promptly upon the receipt by any Obligor of
any amounts described in this paragraph (g), the treasurer of the Borrower will
deliver a certificate to the Administrative Agent specifying the amount of Net
Proceeds received by such Obligor, the date such amounts were received and
describing the sale, casualty or condemnation giving rise thereto in reasonable
detail.  On or before the one year
anniversary of an Obligor receiving any amounts described in this paragraph
(g), the 


 


36

















 


treasurer
of the Borrower will deliver a certificate to the Administrative Agent certifying
that all such amounts have been applied in accordance with this paragraph (g).


 


(h)           Application of Mandatory
Prepayments.


 


(i)            All amounts received pursuant to paragraph (g) shall
be applied in the following order:


 


(A)          first, to the
principal balance of the Revolving Term Loan T01 Facility, the Revolving Term
Loan T06 Facility and the Revolving Letter of Credit Facility, to be applied
pro rata in inverse order of their maturities, and, if the amount so prepaid
exceeds  $15,000,000, the Commitment Amount for
each such Facility shall be permanently reduced on a pro rata basis by the
amount prepaid;


 


(B)          second, to the
principal balance of the Revolving Credit Facility;


 


(C)          third, to fund
a cash collateral account equal to the Letter of Credit Exposure, which cash
collateral account will be held by the Administrative Agent (or its designee),
without interest, as a pledged cash collateral account and promptly applied to
reimbursement of all drafts submitted under outstanding Letters of Credit;


 


(D)          fourth, to
accrued but unpaid interest on the Facilities; and


 


(E)           fifth, to any
remaining Obligations, in such order as the Required Lenders may in their sole
discretion designate.


 


(ii)           Unless otherwise provided in this Agreement or the
other Loan Documents, payments from the Borrower of principal within any
category above shall be applied first to the principal of Base Rate Loans, then
to the principal of Quoted Rate Loans, and then to the principal of LIBOR Loans
(and, among such Quoted Rate Loans and LIBOR Loans, first to those with the
earliest expiring Interest Periods).


 


(i)            Mandatory Prepayments as a Result of Excess
Borrowing.  If the
Aggregate Short-Term Loan Amount shall on any date exceed the Borrowing Base,
the Borrower, not later than the next Business Day following such date, shall
prepay the Revolving Credit Facility Advances in an amount equal to such
excess, without notice or demand by the Administrative Agent or any Lender.


 


Section 2.13        Computation of Interest and Fees.  Interest accruing on the Loans and on the
unreimbursed portion of any Letter of Credit Exposure, all Letter of Credit
Fees, Unused Fees and other fees described in Section 2.14 shall be computed on the basis of the
actual number of days elapsed in a year of 360 days.


 


37
















 


Section 2.14          Fees. 
The Borrower will pay fees to the Lender Parties in accordance with the
following:


 


(a)           Unused Fee.  The Borrower will pay to the Administrative
Agent, for the pro rata account of the Lenders, an ongoing Unused Fee (the “Unused Fee”) computed as the product of (i) an annual
rate equal to the applicable Margin relating to the Unused Fee; plus (ii) the
daily average amount by which (1) the sum of the Aggregate Commitment
Amount exceeds (2) the Facility Outstanding Amount, from the Closing Date
to and including the Maturity Date, payable on or prior to the 10th day of each
calendar month in arrears, as accrued through the last day of immediately
preceding the calendar month.  Any Unused
Fee remaining unpaid on the Maturity Date shall be due and payable on such
date.  The Unused Fee shall be shared by
the Lenders on the basis of their respective Percentages.


 


(b)           Fee Letter. 
The Borrower shall pay to the Administrative Agent all fees required to
be paid pursuant to the Fee Letter.


 


Section 2.15        Use of Proceeds.  Proceeds of the Facilities will be used to (i) repay,
or refinance, as the case may be, the Existing Indebtedness; (ii) provide
for the Borrower’s working capital and general corporate purposes; (iii) issue
Letters of Credit; (iv) provide back-up liquidity for the issuance by the
Borrower of commercial paper; and (v) pay fees and expenses in connection
with the negotiation, execution and delivery of this Agreement and all other
matters related thereto.


 


Section 2.16        Voluntary Increases, Reduction or
Termination of the Commitments; Prepayments.


 


(a)           Reduction or Termination of Revolving Credit Facility
Commitment Amount. The Borrower, from time to time upon not less than 30
Business Days’ prior written notice to the Administrative Agent, may
permanently reduce the Commitment Amount for any Facility; provided, however,
that no such reduction shall reduce the Commitment Amount for such Facility to
an amount less than the Facility Outstanding Amount for such Facility.  Any voluntary reduction shall be pro rata as
to all Commitments for that Facility according to each Lender’s Percentage and
shall be in an aggregate amount equal to $5,000,000 or a higher integral
multiple of  $1,000,000.  The Borrower at any time prior to the
applicable Commitment Termination Date may terminate such Commitment by (i) providing
to the Administrative Agent not less than 30 Business Days’ prior written
notice of its intention to so terminate such Commitment; and (ii) making
payment in full of all Loans outstanding and all other monetary Obligations and
terminating, or making a cash deposit with respect to all outstanding Letters
of Credit for such Facility.


 


(b)           Optional Increases of Commitment Amount.


 


(i)            Request to Increase. 
Following the Closing Date, and provided no Event of Default has
occurred and is continuing, the Borrower may from time to time propose to
increase the Commitment Amount for any Facility in accordance 


 


38

















 


with this Section 2.16(b). 
The aggregate principal amount of the increase to the Commitment Amount
for such Facility (the “Increased Facility Amount”)
shall not exceed $100,000,000 and each increase shall be at least  $10,000,000.  The
Borrower shall provide notice to the Administrative Agent of any requested
Increased Facility Amount.  The
Administrative Agent may, in its sole discretion, offer one or more Lenders the
opportunity (but not the obligation), for a period of 20 days following receipt
of such notice, to elect by notice to the Borrower and the Administrative Agent
to subscribe to participate in the Increased Facility Amount to the extent of
its Percentage.  Each such Lender that
fails to respond to such a notice shall be deemed to have elected not to
increase its Percentage in such Facility.


 


(ii)           Allocation of Unsubscribed Amounts.  If any Lender of such increased Facility
elects not to increase its Commitment pursuant to this Section 2.16(b), the Administrative Agent may place
such unsubscribed amount with one or more other financial institutions that
qualify as Eligible Lenders and may (but need not) be existing Lenders.  The sum of the portion of the Increased
Facility Amount subscribed under this Section 2.16(b) and the amount placed pursuant to the preceding
sentence shall not exceed the Increased Facility Amount.


 


(iii)          Conditions Precedent. 
Any increase in the Commitment Amount for such Facility under this Section 2.16(b) shall become effective upon the
receipt by the Administrative Agent of:


 


(A)          an amendment to
this Agreement, duly signed by the Borrower, the Administrative Agent and each
Lender whose Commitment will be increased and each other Lender or Eligible
Lender who has subscribed to provide a portion of the Increased Facility
Amount, modifying the applicable definitions, setting forth any other
agreements of the Borrower, the Administrative Agent and such Lenders with
respect to pricing affecting the Increased Facility Amount, and setting forth
the agreement of each Eligible Lender to become a party to this Agreement and
to be bound by all the terms and provisions hereof;


 


(B)          amendments to any
other Loan Documents reasonably requested by the Administrative Agent in
relation to the Increased Facility Amount, which amendments the Administrative
Agent is hereby authorized to execute and deliver on behalf of the Lenders;


 


(C)          applicable Notes,
duly executed by the Borrower, as any Lender or Eligible Lender may require;


 


(D)          evidence of
appropriate corporate authorization on the part of the Borrower with respect to
the Increased Facility Amount and the execution and delivery of the documents
described in this Section 2.16(b)(iii);


 


39

















 


(E)           such opinions of
counsel for the Borrower and other assurances as the Administrative Agent may
reasonably request; and


 


(F)           reimbursement of
the Administrative Agent’s out-of-pocket costs and expenses (including
reasonable attorney’s fees) incurred in connection therewith.


 


(c)           Prepayments. 
The Borrower from time to time may voluntarily prepay the Loans in whole
or in part.  In the event of either
mandatory prepayment or voluntary prepayment hereunder, (i) any prepayment
of a Facility shall be applied against outstanding Loans of each Lender under
that Facility pro rata according to each Lender’s Percentage of that Facility; (ii) each
prepayment of the Loans shall be made to the Administrative Agent not later
than 2:00 p.m. on a Business Day, and funds received after that hour shall
be deemed to have been received by the Administrative Agent on the next
following Business Day; (iii) each prepayment of a Fixed Rate Loan shall
be made upon not less than three Business Days notice to the Administrative
Agent and shall be accompanied by accrued interest on such prepayment through
the date of prepayment and additional compensation calculated in accordance
with Section 2.21; (iv) each
prepayment of a Fixed Rate Loan shall be in an aggregate amount equal to the
applicable minimum Loan amount specified in Section 2.5 for LIBOR Loans and the applicable minimum
Loan amount specified in Section 2.6
for Quoted Rate Loans and, after application of any such prepayment, shall not
result in a Fixed Rate Loan remaining outstanding in an amount less than such
minimum Loan amount; and (v) each partial prepayment of Base Rate Loans
shall be in an aggregate amount equal to $1,000,000 or a higher integral
multiple of $1,000,000, unless (in either case) the aggregate outstanding
balance of all Loans under the Facility being prepaid is less than such minimum
Loan amount, in which event any such prepayment may be in such lesser
amount.  Unless otherwise provided in
this Agreement or the other Loan Documents, prepayments from the Borrower of
principal within any Facility above shall be applied first to the principal of
Base Rate Loans and Quoted Rate Loan, on a pro rata basis, and then to the
principal of LIBOR Loans (and, among such LIBOR Loans, first to those with the
earliest expiring Interest Periods).


 


Section 2.17          Payments.


 


(a)           Making of Payments. 
All payments of principal of and interest due with respect to a Facility
shall be made to the Administrative Agent for the account of the applicable
Lenders pro rata according to their respective Percentages of such
Facility.  All payments of fees pursuant
to Section 2.14 shall be made to the
Administrative Agent for the account of the Administrative Agent or the
Lenders, as specified in Section 2.14.
All payments hereunder shall be made to the Administrative Agent at its office
in Denver, Colorado (or at such other location as the Administrative Agent may
direct by notice to the Borrower) not later than 2:00 p.m. on the date
due, in immediately available funds, without set-off or counterclaim, and funds
received after that hour shall be deemed to have been received on the next
following Business Day.  The Borrower
hereby authorizes the Administrative Agent to charge the Borrower’s demand
deposit account maintained with the Administrative Agent (or with any other
Lender) for the amount of 


 


40

















 


any
Obligation on its due date, but the Administrative Agent’s failure to so charge
any such account shall in no way affect the obligation of the Borrower to make
any such payment.  The Administrative
Agent shall remit to each Lender in immediately available funds on the same
Business Day as received by the Administrative Agent its share of all such
payments received by the Administrative Agent for the account of such
Lender.  All payments under Sections
2.18, 2.19 or 2.21 shall be made by the Borrower directly to the Lender
entitled thereto.


 


(b)           Effect of Payments. 
Each payment by the Borrower to the Administrative Agent for the account
of any Lender pursuant to Section 2.17(a) shall
be deemed to constitute payment by the Borrower directly to such Lender,
provided, however, that in the event any such payment by the Borrower to the
Administrative Agent is required to be returned to the Borrower for any reason
whatsoever, then the Borrower’s obligation to such Lender with respect to such
payment shall be deemed to be automatically reinstated.


 


(c)           Distributions by Administrative Agent.  Unless the Administrative Agent shall have
been notified by a Lender or the Borrower prior to the date on which such
Lender or the Borrower is scheduled to make payment to the Administrative Agent
of (in the case of a Lender) the proceeds of an Advance to be made by it
hereunder or (in the case of the Borrower) a payment to the Administrative
Agent for the account of one or more of the Lenders hereunder (such payment by
a Lender or the Borrower (as the case may be) being herein called a “Required Payment”), which notice shall be effective upon
receipt, that it does not intend to make the Required Payment to the
Administrative Agent, the Administrative Agent may assume that the Required
Payment has been made and may, in reliance upon such assumption (but shall not
be required to), make the amount thereof available to the intended recipient(s) on
such date and, if such Lender or the Borrower (as the case may be) has not in
fact made the Required Payment to the Administrative Agent, the recipient(s) of
such payment shall, on demand, repay to the Administrative Agent the amount so
made available together with interest thereon for each day during the period
commencing on the date such amount was so made available by the Administrative
Agent until the date the Administrative Agent recovers such amount at an annual
rate (i) equal to the Federal Funds Rate for such day, in the case of a
Required Payment owing by a Lender; or (ii) equal to the applicable rate
of interest as provided in this Agreement, in the case of a Required Payment
owing by the Borrower.


 


(d)           Setoff.  The
Borrower agrees that each Lender, subject to such Lender’s sharing obligations
set forth in Section 8.6, shall have
all rights of setoff and bankers’ lien provided by applicable law, and in
addition thereto, the Borrower agrees that if at any time any Obligation is due
and owing by the Borrower under this Agreement to any Lender at a time when an
Event of Default has occurred and is continuing hereunder, any Lender may apply
any and all balances, credits, and deposits, accounts or moneys of the Borrower
then or thereafter in the possession of such Lender (excluding, however, any
trust or escrow accounts held by the Borrower for the benefit of any third
party) to the payment thereof.


 


(e)           Due Date Extension. 
Subject to subsection (b) of the definition of “Interest Period”
with respect to LIBOR Loans, if any payment of principal of or interest 


 


41

















 


on
any Loan or any fees payable hereunder falls due on a day that is not a
Business Day, then such due date shall be extended to the next following
Business Day, and (in the case of principal) additional interest shall accrue
and be payable for the period of such extension.


 


(f)            Application of Payments.  Except as otherwise provided herein, so long
as no Default or Event of Default has occurred and is continuing hereunder,
each payment received from the Borrower shall be applied to such Obligation as
the Borrower shall specify by notice to be received by the Administrative Agent
on or before the date of such payment. 
In the absence of such notice and in any event during the continuance of
any Default or Event of Default, (i) payments received from the Borrower
(not constituting proceeds of Collateral) shall be applied, first, to
payment of the Obligations, other than the Rate Hedging Obligations, in such
order of application as the Required Lenders shall determine in their sole
discretion, provided, however, that the application of payments to any Facility
shall be distributed ratably to all Lenders in such Facility, and second,
ratably, to payment of the Rate Hedging Obligations, and (ii) proceeds of
Collateral, after payment of costs of collection thereof, shall be applied, first,
ratably, to payment of the Revolving Term Loan T01 Facility, the Revolving Term
Loan T06 Facility and the Revolving Letter of Credit Facility, and applied to
principal and interest due thereunder in accordance with the Intercreditor
Agreement, and second, to any remaining Obligations, in such order of
application as the Required Lenders shall determine in their sole
discretion.  Any such amounts so received
on account of outstanding Letters of Credit issued under a Facility will be
used to fund a cash collateral account equal to the Letter of Credit Exposure,
to be held by the Administrative Agent (or its designee), without interest, as
a pledged account and promptly applied to reimbursement of drafts submitted
under such Letters of Credit. 
Concurrently with each remittance to any Lender of its appropriate share
of any such payment (based upon such Lender’s Percentage of the Facility to
which such payment relates), the Administrative Agent shall advise such Lender
as to the application of such payment.


 


Section 2.18        Increased Costs; Funding Exceptions.


 


(a)           Increased
Costs Generally.  If any
Change in Law shall:


 


(i)            impose,
modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or for
the account of, or credit extended or participated in by, any Lender (except
any reserve requirement reflected in the LIBO Rate) or the Letter of Credit
Issuer;


 


(ii)           subject
any Lender or the Letter of Credit Issuer to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any participation in a
Letter of Credit or any Fixed Rate Loan made by it, or change the basis of
taxation of payments to such Lender or the Letter of Credit Issuer in respect
thereof (except for Indemnified Taxes or Other Taxes covered by Section 2.19 and the imposition of, or any change in
the rate of, any Excluded Tax payable by such Lender or the Letter of Credit
Issuer); or


 


42

















 


(iii)          impose
on any Lender or the Letter of Credit Issuer or the London interbank market any
other condition, cost or expense affecting this Agreement or Fixed Rate Loans
made by such Lender or any Letter of Credit or participation therein;


 


and
the result of any of the foregoing shall be to increase the cost to such Lender
of making or maintaining any Fixed Rate Loan (or of maintaining its obligation
to make any such Loan), or to increase the cost to such Lender or the Letter of
Credit Issuer of participating in, issuing or maintaining any Letter of Credit
(or of maintaining its obligation to participate in or to issue any Letter of
Credit), or to reduce the amount of any sum received or receivable by such
Lender or the Letter of Credit Issuer hereunder (whether of principal, interest
or any other amount) then, upon request of such Lender or the Letter of Credit
Issuer, the Borrower will pay to such Lender or the Letter of Credit Issuer, as
the case may be, such additional amount or amounts as will compensate such
Lender or the Letter of Credit Issuer, as the case may be, for such additional
costs incurred or reduction suffered.


 


(b)           Capital
Requirements.  If any Lender
or the Letter of Credit Issuer determines that any Change in Law affecting such
Lender or the Letter of Credit Issuer or any lending office of such Lender or
such Lender’s or the Letter of Credit Issuer’s holding company, if any,
regarding capital requirements has or would have the effect of reducing the
rate of return on such Lender’s or the Letter of Credit Issuer’s capital or on
the capital of such Lender’s or the Letter of Credit Issuer’s holding company,
if any, as a consequence of this Agreement, the Commitments of such Lender or
the Loans made by, or participations in Letters of Credit held by, such Lender,
or the Letters of Credit issued by the Letter of Credit Issuer, to a level
below that which such Lender or the Letter of Credit Issuer or such Lender’s or
the Letter of Credit Issuer’s holding company could have achieved but for such
Change in Law (taking into consideration such Lender’s or the Letter of Credit
Issuer’s policies and the policies of such Lender’s or the Letter of Credit
Issuer’s holding company with respect to capital adequacy), then from time to
time the Borrower will pay to such Lender or the Letter of Credit Issuer, as
the case may be, such additional amount or amounts as will compensate such
Lender or the Letter of Credit Issuer or such Lender’s or the Letter of Credit
Issuer’s holding company for any such reduction suffered.


 


(c)           Basis for Determining Interest Rate Inadequate or
Unfair.  If with respect to any
Interest Period:


 


(i)            the
Administrative Agent determines that, or the Required Lenders determine and
advise the Administrative Agent that, deposits in U.S. dollars (in the
applicable amounts) are not being offered in the London interbank eurodollar
market for such Interest Period; or


 


(ii)           the
Administrative Agent determines, or the Required Lenders determine and advise
the Administrative Agent (which determination shall be binding and conclusive
on all parties), that by reason of circumstances affecting 


 


43

















 


the London interbank
eurodollar market, adequate and reasonable means do not exist for ascertaining
the applicable LIBO Rate; or


 


(iii)          the Administrative Agent determines, or
the Required Lenders determine and advise the Administrative Agent, that the
LIBO Rate determined in accordance with this Agreement will not adequately and
fairly reflect the cost to the Lenders of maintaining or funding a LIBOR Loan
for such Interest Period, or that the making or funding of a LIBOR Loan has
become impracticable or uneconomic as a result of an event occurring after the date
of this Agreement which materially affects such LIBOR Loans;


 


then the
Administrative Agent shall promptly notify the affected parties and (A) in
the event of any occurrence described in the foregoing clause (i), the Borrower
shall enter into good faith negotiations with each affected Lender in order to
determine an alternate method to determine an appropriate interest rate for
such Lender, and during the pendency of such negotiations with any Lender, such
Lender shall be under no obligation to make any new LIBOR Loans, and (B) in
the event of any occurrence described in the foregoing clauses (ii) or
(iii), for so long as such circumstances shall continue, no Lender shall be
under any obligation to make any new LIBOR Loans.


 


(d)           Certificates
for Reimbursement.  A
certificate of a Lender or the Letter of Credit Issuer setting forth the amount
or amounts necessary to compensate such Lender or the Letter of Credit Issuer
or its holding company, as the case may be, as specified in paragraph (a) or (b) of
this Section and delivered to the Borrower shall be conclusive absent
manifest error.  The Borrower shall pay
such Lender or the Letter of Credit Issuer, as the case may be, the amount
shown as due on any such certificate within 10 days after receipt thereof.


 


(e)           Delay in
Requests.  Failure or delay on
the part of any Lender or the Letter of Credit Issuer to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or
the Letter of Credit Issuer’s right to demand such compensation, provided that
the Borrower shall not be required to compensate a Lender or the Letter of
Credit Issuer pursuant to this Section for any increased costs incurred or
reductions suffered more than 180 days prior to the date that such Lender or
the Letter of Credit Issuer, as the case may be, notifies the Borrower of the
Change in Law giving rise to such increased costs or reductions and of such
Lender’s or the Letter of Credit Issuer’s intention to claim compensation
therefor (except that, if the Change in Law giving rise to such increased costs
or reductions is retroactive, then the 180-day period referred to above shall
be extended to include the period of retroactive effect thereof).


 


Section 2.19        Taxes.


 


(a)           Payments Free
of Taxes.  Any and all payments
by or on account of any obligation of the Borrower hereunder or under any other
Loan Document shall be made free and clear of and without reduction or
withholding for any Indemnified Taxes or Other Taxes, provided that if the
Borrower shall be required by applicable law to deduct any Indemnified Taxes
(including any Other Taxes) from such payments, then (i) the sum 


 


44

















 


payable
shall be increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) the Lender
Party entitled thereto receives an amount equal to the sum it would have
received had no such deductions been made; (ii) the Borrower shall make
such deductions; and (iii) the Borrower shall timely pay the full amount
deducted to the relevant Governmental Authority in accordance with applicable
law.


 


(b)           Payment of
Other Taxes by the Borrower. 
Without limiting the provisions of paragraph (a) above, the
Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with applicable law.


 


(c)           Indemnification
by the Borrower.  The Borrower
shall indemnify each Lender Party within 10 Business Days after demand
therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) paid by such Lender Party,
and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were
correctly or legally imposed or asserted by the relevant Governmental
Authority.  A certificate as to the
amount of such payment or liability delivered to the Borrower by a Lender Party
(with a copy to the Administrative Agent) shall be conclusive absent manifest
error.


 


(d)           Evidence of
Payments.  As soon as
practicable after any payment of Indemnified Taxes or Other Taxes by the
Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by
such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.


 


(e)           Status of
Lenders.  Any Foreign Lender
that is entitled to an exemption from or reduction of withholding tax under the
law of the jurisdiction in which the Borrower is resident for tax purposes, or
any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with
a copy to the Administrative Agent), at the time or times prescribed by
applicable law or reasonably requested by the Borrower or the Administrative
Agent, 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 of withholding.  In addition,
any Lender, if requested by the Borrower or the Administrative Agent, shall
deliver such other documentation prescribed by applicable law or reasonably
requested by the Borrower or the Administrative Agent as will enable the
Borrower or the Administrative Agent to determine whether or not such Lender is
subject to backup withholding or information reporting requirements.


 


(f)            Treatment of
Certain Refunds.  If any
Lender Party determines, in its sole discretion, that it has received a refund
of any Taxes or Other Taxes as to which it has been indemnified by the Borrower
or with respect to which the Borrower has paid additional amounts pursuant to
this Section, it shall pay to the Borrower an amount equal to such refund (but
only to the extent of indemnity payments made, or additional amounts 


 


45

















 


paid,
by the Borrower under this Section with respect to the Taxes or Other
Taxes giving rise to such refund), net of all out-of-pocket expenses of such
Lender Party and without interest (other than any interest paid by the relevant
Governmental Authority with respect to such refund), provided that the
Borrower, upon the request of a Lender Party will repay the amount paid over to
the Borrower (plus any penalties, interest or other charges imposed by the
relevant Governmental Authority) to such Lender Party in the event such Lender
Party is required to repay such refund to such Governmental Authority.  This paragraph shall not be construed to
require any Lender Party to make available its tax returns (or any other
information relating to its taxes that it deems confidential) to the Borrower
or any other Person.


 


Section 2.20        Illegality. 
If any change in (including the adoption of any new) applicable laws or
regulations, or any change in the interpretation of applicable laws or
regulations by any governmental authority, central bank, comparable agency or
any other regulatory body charged with the interpretation, implementation or
administration thereof, or compliance by a Lender with any request or directive
(whether or not having the force of law, but having general applicability to
all within a class of financial institutions similar to a Lender) of any such
authority, central bank, comparable agency or other regulatory body, should
make it or, in the good faith judgment of the affected Lender, shall raise a
substantial question as to whether it is unlawful for such Lender to make,
maintain or fund either LIBOR Loans or Quoted Rate Loans, then (a) the
affected Lender shall promptly notify the Borrower and the Administrative
Agent; (b) the obligation of the affected Lender to make, maintain or
convert into LIBOR Loans or Quoted Rate Loans, as applicable, shall, upon the
effectiveness of such event, be suspended for the duration of such
unlawfulness; and (c) for the duration of such unlawfulness, any notice by
the Borrower pursuant to Section 2.2,
2.3, 2.4,
2.5, 2.6,
or 2.7 requesting the affected Lender to
make or convert into LIBOR Loans or Quoted Rate Loans, as applicable, shall be
construed as a request to make or to continue making Base Rate Loans.


 


Section 2.21        Loan Losses.  The Borrower hereby agrees that upon demand
by any Lender (which demand shall be accompanied by a statement setting forth
the basis for the calculations of the amount being claimed) the Borrower will
indemnify such Lender against any loss or expense which such Lender may have
sustained or incurred (including but not limited to any net loss or expense
incurred by reason of the liquidation or reemployment of deposits or other
funds acquired by such Lender to fund or maintain Fixed Rate Loans) or which
such Lender may be deemed to have sustained or incurred, as reasonably
determined by such Lender, (a) as a consequence of any failure by the
Borrower to make any payment when due of any amount due hereunder in connection
with any Fixed Rate Loans; (b) due to any failure of the Borrower to
borrow or convert any Fixed Rate Loans on a date specified therefor in a notice
thereof, except as permitted by Section 2.7;
or (c) due to any payment or prepayment of (i) any LIBOR Loan on a
date other than the last day of the applicable Interest Period for such LIBOR
Loan; or (ii) any Quoted Rate Loan on a date other than the last day of
the applicable Quoted Rate Period for such Quoted Rate Loan.  For this purpose, all notices under Sections 2.2, 2.3,
2.4, 2.5,
2.6, and 2.7
shall be deemed to be irrevocable.


 


Section 2.22        Right of Lenders to Fund through Other Offices.  Each Lender, if it so elects, may fulfill its
agreements hereunder with respect to any LIBOR Loan by causing a foreign branch
or affiliate of such Lender to make such LIBOR Loan; provided, that in such 


 


46

















 


event the obligation of the Borrower to repay such LIBOR Loan shall
nevertheless be to such Lender and such LIBOR Loan shall be deemed held by such
Lender for the account of such branch or affiliate.


 


Section 2.23        Discretion of Lenders as to Manner of Loan.  Notwithstanding any provision of this
Agreement to the contrary, each Lender shall be entitled to fund and maintain
all or any part of its LIBOR Loans in any manner it deems fit, it being
understood, however, that for the purposes of this Agreement (specifically
including but not limited to Section 2.21
hereof) all determinations hereunder shall be made as if each Lender had
actually funded and maintained each LIBOR Loan during each Interest Period for
such LIBOR Loan through the purchase of deposits having a maturity
corresponding to such Interest Period and bearing an interest rate equal to the
appropriate LIBO Rate for such Interest Period.


 


Section 2.24        Conclusiveness of Statements; Survival of Provisions.  Determinations and statements of a Lender
pursuant to Sections 2.18, 2.19 or 2.21
shall be conclusive absent manifest error. 
Each Lender shall use reasonable averaging and attribution methods in
determining compensation pursuant to such Sections 2.18, 2.19 and 2.21 and the provisions of Sections 2.18, 2.19
and 2.21 shall survive termination of
this Agreement.


 


ARTICLE III

CONDITIONS TO CREDIT EXTENSIONS


 


Section 3.1           Conditions Precedent to the Initial Credit Extension.  The obligation of the Lenders to effect any
Credit Extension is subject to the condition precedent that, on or before the
day of the first Credit Extension, and in any event on or before the Closing
Date, the Administrative Agent shall have received the following, each in form
and substance satisfactory to the Administrative Agent:


 


(a)           such Notes as shall be requested by any Lenders, each
properly executed on behalf of the Borrower;


 


(b)           the Guaranty, properly executed on behalf of the
Guarantor;


 


(c)           the Intercreditor Agreement, duly executed by the parties
thereto;


 


(d)           a Third Modification Agreement to Restated Mortgage and
Security Agreement Mortgage Short-Term Redemption, properly executed on behalf
of the Borrower;


 


(e)           a First Amendment to Mortgage and Security Agreement,
properly executed on behalf of the Guarantor;


 


(f)            evidence of all insurance required by the terms of the
Security Documents, including but not limited to flood insurance if the real
estate described in any Mortgage is located within the 100-year flood plain,
together with certificates and loss payable endorsements showing the
Administrative Agent, for the benefit of the Lender Parties, as mortgagee,
additional insured and lender loss payee thereunder;


 


47
















 


(g)           current searches of appropriate filing offices in
each jurisdiction in which each Obligor is organized, has an office or
otherwise conducts business (including but not limited to patent and trademark
offices, secretaries of state and county recorders) showing that no state or
federal tax liens have been filed and remain in effect against any Obligor, and
that no financing statements or other notifications or filings have been filed
and remain in effect against any Obligor, other than the Permitted Liens or
those for which the Administrative Agent has received an appropriate release,
termination or satisfaction;


 


(h)           financing statements with respect to each Obligor to
be filed in each jurisdiction that, in the opinion of the Administrative Agent,
is reasonably necessary to maintain the Liens created by the Security
Documents, to the extent such Liens can be perfected by filing;


 


(i)            certificates of the secretary or other appropriate
officer of each Obligor (i) certifying that the execution, delivery and performance
of the Loan Documents and other documents contemplated hereunder to which such
Obligor is a party have been duly approved by all necessary action of the
Governing Board of the Obligor, and attaching true and correct copies of the
applicable resolutions granting such approval; (ii) certifying that
attached to such certificates are true and correct copies of the Organizational
Documents of such Obligor, together with such copies; and (iii) certifying
the names of the officers of such Obligor that are authorized to sign the Loan
Documents and other documents contemplated hereunder, together with the true
signatures of such officers;  the Lender
Parties may conclusively rely on such certificates until the Administrative
Agent receives a further certificate of the Secretary or Assistant Secretary of
such Obligor canceling or amending the prior certificate and submitting the
signatures of the officers named in such further certificate;


 


(j)            a certificate of good standing for each Obligor from
the Secretary of State (or the appropriate official) of the state of formation
of such Obligor, dated not more than 30 days prior to the Closing Date;


 


(k)           a Borrowing Base Certificate as of a date not more
than 30 days prior to the Closing Date;


 


(l)            the following financial information of the Borrower
and the Consolidated Group:  (i) consolidated
and consolidating financial statements for the Fiscal Years ending August 31,
2006 through August 31, 2008, audited by Eide Bailly LLP, and interim
financial statements for the most recent period completed, including balance
sheets, income statements and cash flow statements prepared in conformity with
GAAP; (ii) a 1-year (commencing September 1, 2009) business plan and
pro-forma financial projections; and (iii) such other financial
information as the Administrative Agent may reasonably request;


 


(m)          a signed copy of an opinion of counsel for each
Obligor addressed to the Administrative Agent, on behalf of the Lenders, with
respect to the matters contemplated by the Loan Documents;


 


48

















 


(n)           the absence of any Material Adverse Effect,
financial or otherwise, affecting the Borrower or the Consolidated Group since August 31,
2008; and


 


(o)           payment of all fees and expenses then due and
payable pursuant to Sections 2.14 and 9.6(a) hereof.


 


Section 3.2           Conditions Precedent to All Credit
Extensions.  The
obligation of the Lenders to effect any Credit Extension shall be subject to
the further conditions precedent that on the date of such Credit Extension:


 


(a)           the representations and warranties contained in Article IV
and in each other Loan Document are correct in all material respects on and as
of the date of such Credit Extension as though made on and as of such date; and


 


(b)           no event has occurred and is continuing, or would
result from such Credit Extension, which constitutes a Default or an Event of
Default.


 


Any
request for a Credit Extension shall be deemed to be a representation and
warranty that no event has occurred and is continuing, or would result from
such Credit Extension, which constitutes a Default or an Event of Default.


 


ARTICLE IV

REPRESENTATIONS AND WARRANTIES


 


The Borrower represents and
warrants to the Lender Parties as follows:


 


Section 4.1           Legal Existence and Power; Name;
Chief Executive Office.  Each
Obligor is a legal entity duly organized, validly existing and in good standing
under the laws of its respective state of organization, and is duly licensed or
qualified to transact business in all jurisdictions where the character of the
property owned or leased or the nature of the business transacted by it makes
such licensing or qualification necessary and where failure to obtain such
licensing or qualification would have a Material Adverse Effect.  Each Obligor has all requisite power and
authority, corporate or otherwise, to conduct its business, to own its
properties and to execute and deliver, and to perform all of its obligations
under, the Loan Documents to which it is a party.  Within the last 12 months, each Obligor has
done business solely under the names set forth in Schedule 4.1.  The state of organization and the chief
executive office and principal place of business of each direct and indirect
Subsidiary of the Borrower are designated as such in Schedule 4.1, each
other place of business of each Obligor is located at the address set forth in
Schedule 4.1 and all records relating to their respective businesses are
kept at those locations.


 


Section 4.2           Authorization for Borrowings and
Letters of Credit; No Conflict as to Law or Agreements.  The execution, delivery and performance by
each Obligor of the Loan Documents to which it is a party, and the Letters of
Credit and Advances from time to time obtained hereunder, have been duly
authorized by all necessary corporate action and do not and will not (a) require
any consent or approval that has not been obtained prior to the date hereof; (b) require
any authorization, consent or approval by, or registration, declaration or
filing with (other than filing of financing statements and recording of
mortgages as contemplated 


 


49

















 


hereunder), or notice to, any governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, or any third
party, except such authorization, consent, approval, registration, declaration,
filing or notice as has been obtained, accomplished or given prior to the date
hereof; (c) violate any provision of any law, rule or regulation
(including but not limited to Regulations T, U or X of the Board of
Governors of the Federal Reserve System) or of any order, writ, injunction or
decree presently in effect having applicability to an Obligor or of the
Organizational Documents of an Obligor; (d) result in a breach of, or
constitute a default under, any indenture or loan or credit agreement or any
other material agreement, lease or instrument to which an Obligor is a party or
by which it or its properties may be bound or affected; or (e) result in,
or require, the creation or imposition of any Lien of any nature upon or with
respect to any of the properties now owned or hereafter acquired by an Obligor
(other than as required hereunder in favor of the Administrative Agent or the
Lender Parties or as otherwise permitted by this Agreement); in each case of
(b), (c) or (d) above, the noncompliance with which would have a
Material Adverse Effect.


 


Section 4.3           Legal Agreements.  Each of the Loan Documents constitutes the
legal, valid and binding obligations and agreements of the Obligor that is a
party thereto, enforceable against such Obligor in accordance its terms, except
to the extent that enforcement thereof may be limited by an applicable
bankruptcy, insolvency or similar laws now or hereafter in effect affecting
creditors’ rights generally and by general principles of equity.


 


Section 4.4           Capitalization.  The holder, class and percentage interests of
the ownership of each Obligor (other than the Borrower) and all Subsidiaries of
each Obligor (both direct and indirect) are set forth and described in
Schedule 4.4, wherein each Subsidiary that is a Guarantor, if any,
hereunder is so noted.  All of the issued
and outstanding Capital Stock of each Obligor, if any, (other than the Borrower)
is duly authorized, validly issued, fully paid and nonassessable.  No violation of any preemptive rights will be
triggered by virtue of the transactions contemplated by the Loan Documents.


 


Section 4.5           Financial Condition.  The Borrower has heretofore furnished to the
Administrative Agent the audited financial statements of the Consolidated Group
for the Fiscal Year ended August 31, 2008 and the unaudited financial
statements of the Consolidated Group for the Fiscal Quarter ended May 31,
2009.  Those financial statements fairly
present the financial condition of the Consolidated Group on the date thereof
and the results of operations and cash flows for the periods then ended
(subject to year-end audit adjustments) and were prepared in accordance with
GAAP.


 


Section 4.6           Adverse Change.  There has been no change in the business,
properties or condition (financial or otherwise) of the Consolidated Group
since the date of the last financial statement referred to in Section 4.5 that could reasonably be expected to have a
Material Adverse Effect.


 


Section 4.7           Litigation.  There are no actions, suits, investigations,
claims, unsatisfied judgments or proceedings pending or, to the Knowledge of
any Obligor, threatened against or affecting any Obligor or the properties or
business of any Obligor before any court or governmental department,
commission, board, bureau, agency or instrumentality, domestic or 


 


50

















 


foreign, which, if determined adversely to such Person, would exceed
$7,500,000, except as set forth and described in Schedule 4.7.


 


Section 4.8           Regulation U.  No Obligor has engaged in the business of
extending credit for the purpose of purchasing or carrying margin stock (within
the meaning of Regulation U of the Board of Governors of the Federal Reserve System),
and no part of the proceeds of any Advance or Letter of Credit will be used to
purchase or carry any margin stock or to extend credit to others for the
purpose of purchasing or carrying any margin stock.


 


Section 4.9           Taxes.  Each Obligor has paid or caused to be paid to
the proper authorities when due all federal, state, foreign and local taxes
required to be withheld by it.  Each
Obligor has filed all federal, state and local tax returns which are required
to be filed, and such Obligor has paid or caused to be paid to the respective
taxing authorities all taxes as shown on said returns or on any assessment
received by it to the extent such taxes have become due, except for any such
tax, assessment, charge or claim whose amount, applicability or validity is
being contested by such Obligor in good faith and by proper proceedings and for
which such Obligor shall have set aside adequate reserves in accordance with
GAAP.  Proper and accurate amounts have
been withheld by each Obligor from its respective employees for all periods in
compliance with the tax, social security and any employment withholding
provisions of applicable federal and state law, and proper and accurate federal
and state returns have been filed by each Obligor for all periods for which returns
were due with respect to employee income tax withholding, social security and
unemployment taxes, and the amounts shown thereon to be due and payable have
been paid in full or provision therefor included on the books of such Obligor
in accordance with and to the extent required by GAAP.  To the Knowledge of each Obligor, there is no
pending investigation of any Obligor by any taxing authority.


 


Section 4.10        Titles and Liens.  An Obligor has good and absolute fee or
leasehold title, as the case may be, to all properties and assets reflected in
the latest consolidated balance sheets referred to in Section 4.5, free and clear of all Liens, except for
the following Liens: (a) the Permitted Liens; and (b) covenants,
restrictions, rights, easements and minor irregularities in title which do not (i) materially
interfere with the business or operations of any Obligor as presently
conducted; or (ii) materially impair the value of the property to which
they attach.  In addition, no financing
statement naming any Obligor as debtor is on file in any office except to
perfect the Permitted Liens.


 


Section 4.11        Plans.  Except as disclosed on Schedule 4.11, no
Obligor or any of its ERISA Affiliates (a) maintains or has maintained any
Pension Plan; (b) contributes or has contributed to any Multi-Employer
Plan; or (c) provides or has provided post-retirement medical or insurance
benefits with respect to employees or former employees (other than benefits
required under Section 601 of ERISA, Section 4980B of the Code or applicable
state law).  No Obligor or any of its
ERISA Affiliates has received any notice or has any Knowledge to the effect
that it is not in substantial compliance with any of the requirements of ERISA,
the Code or applicable state law with respect to any Plan.  No Reportable Event exists in connection with
any Pension Plan.  Each Plan that is
intended to qualify under the Code is so qualified, and no fact or circumstance
exists which may have an adverse effect on the Plan’s tax-qualified status that
is not correctable under available government correction programs.  No Obligor or any of its ERISA Affiliates has
(i) any accumulated funding deficiency (as defined in Section 302 of 


 


51

















 


ERISA and Section 412 of the Code) under any Plan, whether or not
waived; (ii) any material liability under Section 4201 or 4243 of
ERISA for any withdrawal, partial withdrawal, reorganization or other event
under any Multi-Employer Plan; or (iii) any material liability or Knowledge
of any facts or circumstances which could result in any material liability to
the Pension Benefit Guaranty Corporation, the Internal Revenue Service, the
Department of Labor or any participant in connection with any Plan (other than
routine claims for benefits under the Plan). Other than claims for benefits in
the ordinary course of business, there are no actions, suits, disputes,
arbitrations or other material claims pending or, to any Obligor’s Knowledge,
threatened with respect to any Plan.


 


Section 4.12        Environmental Compliance.  Except as disclosed on Schedule 4.12,
each Obligor has obtained all permits, licenses and other authorizations that
are required under federal, state and local laws and regulations relating to
emissions, discharges, releases of pollutants, contaminants, hazardous or toxic
materials, or wastes into ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants, contaminants
or hazardous or toxic materials or wastes (“Environmental
Laws”) at its facilities or in connection with the operation of its
facilities, if the failure to obtain such permits, licenses or other
authorizations would result in a Material Adverse Effect.  Except as disclosed on Schedule 4.12,
each Obligor and all activities of each Obligor at its facilities comply with
all material Environmental Laws and with all terms and conditions of any required
permits, licenses and authorizations applicable to such Person with respect
thereto, the noncompliance of which would require aggregate expenditures by the
Borrower in excess of $15,000,000 in any Fiscal Year (in excess of the amounts
set forth in the Obligor’s budget for such Fiscal Year delivered to the
Administrative Agent hereunder).  To the
Knowledge of each Obligor, each Obligor is in material compliance with all
limitations, restrictions, conditions, standards, prohibitions, requirements,
obligations, schedules and timetables contained in Environmental Laws or
contained in any plan, order, decree, judgment or notice of which such Obligor
has Knowledge and with respect to which noncompliance would require aggregate
expenditures by any Obligor in excess of 15,000,000 in any Fiscal Year (in excess
of the amounts set forth in the Obligor’s budget for such Fiscal Year delivered
to the Administrative Agent hereunder). 
Except as disclosed on Schedule 4.12, no Obligor has Knowledge of,
nor has any Obligor received notice of, any events, conditions, circumstances,
activities, practices, incidents, actions or plans which may interfere with or
prevent continued compliance with, or which may give rise to any liability
under, any Environmental Laws.


 


Section 4.13        Submissions to Lenders.  This Agreement, together with each other Loan
Document and the exhibits, schedules, attachments, written or oral statements,
documents, certificates and other items prepared or supplied to any Lender
Party by or on behalf of any Obligor with respect to the transactions contemplated
hereby or thereby, does not contain any untrue statement of a material fact or
omit a material fact necessary to make each statement contained herein or
therein not misleading (and, as to projections, valuations or pro forma
financial statements, all of such information presents a good faith opinion
based on reasonable assumptions as of the date made as to such projections,
valuations and pro forma condition and results).  There is no fact that the Borrower has not
disclosed to the Lender Parties in writing and of which any Obligor has
Knowledge that has had or could reasonably be expected to have a Material
Adverse Effect.  Notwithstanding the
foregoing, the Lender Parties acknowledge that 


 


52

















 


the financial projections and pro forma information as to future
periods contained therein are subject to general business conditions and
economic factors that may be beyond any Obligor’s control or other
unanticipated future events which could have an unforeseen impact on the
performance or condition of the Obligors, it being understood that all such
financial projections will be subject to uncertainties and contingencies and
that no representation is given that any particular financial projection will
ultimately be realized.  Notwithstanding
the foregoing, the parties acknowledge the disclaimer set forth in that certain
Confidential Information Memorandum dated as of June, 2009, which was prepared
and distributed in connection with the transaction contemplated by this
Agreement, and no Obligor makes any representation or warranty of any kind in
respect of such Confidential Information Memorandum.


 


Section 4.14        Financial
Solvency.  Both before
and after giving effect to all of the loans, guaranties and other financial
accommodations contemplated herein, each of the Borrower and each other Obligor
(after taking into account the Borrower’s reimbursement obligation to such
Obligor in respect of any guaranty):


 


(a)           was not and will not be insolvent, as that term is
used and defined in Section 101(32) of the United States Bankruptcy Code
and Section 2 of the Uniform Fraudulent Transfer Act;


 


(b)           does not have unreasonably small capital and is not
engaged or about to engage in a business or a transaction for which any
remaining assets of such Obligor are unreasonably small;


 


(c)           does not, by executing, delivering or performing its
obligations under the Loan Documents or by taking any action with respect
thereto, intend to nor believe that it will incur debts beyond its ability to
pay them as they mature;


 


(d)           does not, by executing, delivering or performing its
obligations under the Loan Documents to which it is a party or by taking any
action with respect thereto, intend to hinder, delay or defraud either its
present or future creditors; and


 


(e)           does not contemplate filing a petition in bankruptcy
or for an arrangement or reorganization or similar proceeding under any law of
any jurisdiction or country, and is not the subject of any bankruptcy or
insolvency proceedings or similar proceedings under any law of any jurisdiction
or country threatened or pending against such Obligor.


 


Section 4.15        Information Regarding Owned and
Leased Real Estate and Warehouses.  All material interests (including but not
limited to all fee simple and leasehold interests) of the Obligors in any real
property or fixtures, wherever located, are subject to the Primary Mortgage.


 


Section 4.16          Intellectual
Property Rights.  Each Obligor
possesses or has the right to use all of the patents, trademarks, trade names,
service marks and copyrights, and applications therefor, and all technology,
know-how, processes, methods and designs used in or necessary for the conduct
of its business, without known conflict with the rights of others.


 


53

















 


Section 4.17        Conflicts of Interest.  No Obligor nor any officer, employee, agent
or any other Person acting on behalf of any of the foregoing has, directly or
indirectly, given or agreed to give any money, gift or similar benefit (other
than legal price concessions to customers in the ordinary course of business)
to any customer, supplier, employee or agent of a customer or supplier, or
official or employee of any governmental agency or instrumentality of any
government (domestic or foreign) or other Person who was, is, or may be in a
position to help or hinder the business of any Obligor (or assist in connection
with any actual or proposed transaction), which (a) might subject any
Obligor to any material damage or penalty in any civil, criminal or
governmental litigation or proceeding; (b) if not given in the past, could
have had a Material Adverse Effect; or (c) if not continued in the future,
could reasonably be expected to have a Material Adverse Effect.


 


Section 4.18        Licenses; Compliance with Laws,
Other Agreements, etc. 
Except as set forth in Schedule 4.18, each Obligor has all material
franchises, permits, licenses and other rights, including all governmental
approvals, authorizations, consents, licenses and permits, which are necessary
or required for the conduct of the businesses currently conducted by any
Obligor (collectively, the “Licenses”).  No Obligor has any Knowledge of any basis
upon which the renewal of any License would be denied in the future.  Each such License has been validly issued to
the relevant Obligor and is in full force and effect, and no Obligor is in
violation of any such License.  No
Obligor is in violation of any term of its Organizational Documents or any
other contract, agreement, judgment or decree, the violation of which would
have a Material Adverse Effect, and each Obligor is in full compliance with all
applicable laws, regulations and rules the non-compliance with which would
have a Material Adverse Effect.


 


Section 4.19        Investment Company Act.  Neither the Borrower nor any company
controlling the Borrower is required to be registered as an “investment company”
within the meaning of the Investment Company Act of 1940, as amended.


 


ARTICLE V

AFFIRMATIVE COVENANTS


 


So
long as any Obligations (other than contingent indemnity obligations) remain
unpaid or any Facility remains outstanding, the Borrower will comply with the
following requirements, unless the Required Lenders (or the Administrative
Agent, with the consent of the Required Lenders) shall otherwise consent in
writing:


 


Section 5.1           Reporting Requirements.  The Borrower will deliver, or cause to be
delivered, to each Lender each of the following, which shall be in form and
detail reasonably acceptable to the Required Lenders:


 


(a)           As soon as available, and in any event within 120
days after the end of each Fiscal Year of the Borrower, audited annual
financial statements of the Consolidated Group with the unqualified opinion of
Eide Bailly, LLP or other independent certified public accountants of
nationally recognized standing selected by the Consolidated Group and
reasonably acceptable to the Administrative Agent, which annual financial
statements shall include the balance sheets of the Consolidated Group as at the
end of such Fiscal Year and the related statements of income, retained earnings
and cash flows 


 


54

















 


of
the Consolidated Group for the Fiscal Year then ended, prepared on a
consolidating and consolidated basis, all in reasonable detail and prepared in
accordance with GAAP, together with (i) a report signed by such
accountants stating that in making the investigations necessary for said
opinion they obtained no knowledge, except as specifically stated, of any
Default or Event of Default hereunder and all relevant facts in reasonable
detail to evidence, and the computations as to, whether or not the Borrower is
in compliance with the Financial Covenants; and (ii) a certificate of the
treasurer of the Borrower, substantially in the form of Exhibit M, stating that such financial statements have
been prepared in accordance with GAAP and whether or not such officer has
knowledge of the occurrence of any Default or Event of Default hereunder and,
if so, stating in reasonable detail the facts with respect thereto.


 


(b)           As soon as available and in any event within 5 days
after the Borrower’s quarterly filing with the Securities and Exchange
Commission, an unaudited interim balance sheet and statement of income, cash
flow and retained earnings of the Consolidated Group as at the end of and for
such Fiscal Quarter and for the Fiscal Year-to-date period then ended, prepared
on a consolidating and consolidated basis, in reasonable detail and stating in
comparative form the budget of the Consolidated Group for such calendar month
and for the year-to-date period then ended and the figures for the
corresponding date and periods in the previous year, all prepared in accordance
with GAAP, subject to year-end audit adjustments; and accompanied by a certificate
of the treasurer of the Borrower, substantially in the form of Exhibit M, stating (i) that such financial
statements have been prepared in accordance with GAAP, subject to year-end
audit adjustments; (ii) whether or not such officer has knowledge of the
occurrence of any Default or Event of Default hereunder not theretofore
reported and remedied and, if so, stating in reasonable detail the facts with
respect thereto; and (iii) all relevant facts in reasonable detail to
evidence, and the computations as to whether or not the Borrower is in
compliance with the Financial Covenants.


 


(c)           Within 30 days after the end of each month, or more
frequently if desired by the Borrower, a properly completed and executed
Borrowing Base Certificate as at the end of such month or such other period, as
appropriate.


 


(d)           Within 60  days after the
end of each Fiscal Year of the Borrower, the annual budget and forecast of
operations and Capital Expenditures budget for the Consolidated Group for the
next Fiscal Year, each in reasonable detail, representing the good faith
projections of the Borrower, and certified by the Borrower’s treasurer as being
the projections upon which the Borrower relies, together with (i) such
supporting schedules and information as the Administrative Agent from time to
time may reasonably request, and (ii) revisions to any of the foregoing if
the Governing Board of the Borrower approves an increase of more than 20% to
the original Capital Expenditures budget.


 


(e)           From time to time, with reasonable promptness, any
and all receivables schedules, collection reports, pool reports, deposit
records and such other material reports, records or information as the
Administrative Agent or the Required Lenders from time to time may reasonably
request.


 


55
















 


(f)            Immediately after the
commencement thereof, notice of all litigation and of all proceedings before
any governmental or regulatory agency affecting any Obligor of the type
described in Section 4.7 or which (i) seek
a monetary recovery against any Obligor in excess of $7,500,000; or (ii) if
determined adversely to any Obligor, could reasonably be expected to have a
Material Adverse Effect.


 


(g)           Immediately after the
commencement thereof, notice of any violation of any Environmental Law by an
Obligor and any commencement of any judicial or administrative proceeding
against an Obligor relating to any Environmental Law, which, if determined
adversely to any Obligor, (i) could reasonably be expected to require
expenditures of any Obligor in excess of $7,500,000; or (ii) could
reasonably result in the revocation of, or materially affect, any operating
permits, air permission permits, water discharge permits, hazardous waste
permits or other permits held by an Obligor, the results of which would have a
Material Adverse Effect.


 


(h)           Immediately after the
Borrower obtains Knowledge of the occurrence of a Default or Event of Default
hereunder, notice of such occurrence, together with a detailed statement by a
responsible officer of the Borrower setting forth the steps being taken by the
Borrower to cure the effect of such Default or Event of Default.


 


(i)            As promptly as
practicable, and in any event within 30 days after the Borrower has Knowledge
that any Reportable Event with respect to any Pension Plan has occurred, the
Borrower will deliver to the Administrative Agent a statement of the Borrower’s
treasurer setting forth details as to such Reportable Event and the action the
Borrower proposes to take with respect thereto, together with a copy of the
notice of such Reportable Event to the Pension Benefit Guaranty Corporation.


 


(j)            As promptly as
practicable, and in any event within 30 days after any Obligor fails to make
any quarterly contribution required with respect to any Pension Plan under Section 412(m) of
the Code, the Borrower will deliver to the Administrative Agent a statement of
the Borrower’s treasurer setting forth details as to such failure and the
action the Borrower proposes to take with respect thereto, together with a copy
of any notice of such failure required to be provided to the Pension Benefit
Guaranty Corporation.


 


(k)           As promptly as
practicable, and in any event within 30 days after the Borrower has Knowledge
that any Obligor has or is reasonably expected to have any liability under Section
4201 or 4243 of ERISA for any withdrawal, partial withdrawal, reorganization or
other event under any Multi-Employer Plan, the Borrower will deliver to the
Administrative Agent a statement of the Borrower’s treasurer setting forth
details as to such liability and the action which Borrower proposes to take
with respect thereto.


 


(l)            Promptly upon
obtaining Knowledge thereof, notice of the violation by any Obligor of any law,
rule or regulation, the non-compliance with which could reasonably be expected
to have a Material Adverse Effect.


 


56

















 


(m)          Promptly, such
additional information concerning the Borrower and each other Obligor as the
Administrative Agent may reasonably request.


 


All required deliveries pursuant to this Section 5.1 shall be made, to the extent possible, by
electronic means (e-mail transmission), followed by actual, originally executed
(if required hereunder) paper copies thereof.


 


Section 5.2           Books and Records; Inspection and Examination.  The Borrower will keep, and will cause each
other Obligor to keep, accurate books of record and account for itself
pertaining to its business and financial condition and such other matters as
the Administrative Agent may from time to time request in which true and
complete entries will be made in accordance with GAAP consistently applied and,
upon request of and reasonable notice by the Administrative Agent, will permit
any officer, employee, attorney or accountant for any Lender Party to audit,
review, make extracts from or copy any and all corporate and financial books
and records of any Obligor at all reasonable times during ordinary business
hours, to send and discuss with account debtors and other obligors requests for
verification of amounts owed to any Obligor, and to discuss the affairs of any
Obligor with any of its Directors, officers, employees or agents.  The Borrower will permit any Lender Party or
its employees, accountants, attorneys or agents, to examine and inspect any
property of any Obligor at any time during ordinary business hours; provided,
that each Lender Party will use reasonable efforts to conduct (or have
conducted) any such examination or inspection so as to minimize disruptions to
the operations of such Obligor.


 


Section 5.3           Compliance with Laws.  The Borrower will, and will cause each other
Obligor to, (a) comply in all material respects with the requirements of all
applicable laws and regulations, including but not limited to all Environmental
Laws; and (b) use and keep its assets, and will require that others use and
keep its assets, only for lawful purposes, without violation of any federal,
state or local law, statute or ordinance. 
In addition, and without limiting the foregoing sentence, the Borrower
shall (i) ensure, and cause each other Obligor to ensure, that no Person
who owns a controlling interest in, or otherwise controls, the Borrower or any
other Obligor is or shall be listed on the Specially Designated Nationals and
Blocked Person List or other similar lists maintained by the Office of Foreign
Assets Control (“OFAC”), the
Department of the Treasury or included in any Executive Orders; (ii) not
use or permit the use of the proceeds of any Advance to violate any of the
foreign asset control regulations of OFAC or any enabling statute or Executive
Order relating thereto; and (iii) comply, and cause each other Obligor to
comply, with all applicable Bank Secrecy Act (“BSA”)
laws and regulations, as amended.


 


Section 5.4           Payment of Taxes and Other Claims.  The Borrower will pay or discharge, and will
cause each other Obligor to pay or discharge, when due, (a) all taxes,
assessments and governmental charges levied or imposed upon it or upon its
income or profits or upon any properties belonging to it prior in each case to
the date on which penalties attach thereto; (b) all federal, state and
local taxes required to be withheld by it; and (c) all lawful claims for
labor, materials and supplies that, if unpaid, might by law become a Lien or
charge upon any properties of an Obligor; provided, that no Obligor shall be
required to pay any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in


 


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good faith by appropriate proceedings and for
which such Obligor has set aside adequate reserves in accordance with GAAP.


 


Section 5.5           Maintenance of Properties.  The Borrower will keep and maintain, and will
cause each other Obligor to keep and maintain, all of its properties necessary
or useful in its business in good condition, repair and working order (normal
wear and tear excepted); provided, however, that nothing in this Section 5.5 shall prevent an Obligor from discontinuing
the operation and maintenance of any of its properties if such discontinuance
is, in the reasonable judgment of such Obligor, desirable in the conduct of
such Obligor’s business.  The Borrower
will, and will cause each other Obligor to, take all commercially reasonable
steps necessary to protect and maintain its Intellectual Property Rights.  The Borrower will, and will cause each other
Obligor to, take all commercially reasonable steps necessary to prosecute any
Person infringing its Intellectual Property Rights and to defend itself against
any Person accusing it of infringing any Person’s Intellectual Property Rights.


 


Section 5.6           Insurance. 
The Borrower will obtain and at all times maintain, and will cause each
other Obligor to obtain and at all times maintain, insurance with insurers
believed by it to be responsible and reputable in such amounts and against such
risks as described in the Security Documents and otherwise as is usually
carried by companies engaged in similar business and owning similar properties
in the same general areas in which it operates.


 


Section 5.7           Preservation of Legal Existence.  The Borrower will preserve and maintain, and
will cause each other Obligor to preserve and maintain, its legal existence and
all of its rights, privileges and franchises necessary or desirable in the
normal conduct of its business and shall conduct its business in an orderly,
efficient and regular manner; provided, however, that nothing in the foregoing
shall prohibit any Obligor (other than the Borrower) from merging into another
Obligor so long as, with respect to any such merger involving the Borrower, the
Borrower shall remain as the surviving entity.


 


Section 5.8           Creation of New Obligors and Subsidiaries.  The Borrower will obtain prior written
approval of the Required Lenders prior to creating a Subsidiary or acquiring
any business which would constitute a Subsidiary.  Upon receipt of any such prior written
approval, the Borrower will cause each new Subsidiary to execute and deliver to
the Administrative Agent, for the benefit of the Lender Parties, a Guaranty,
Mortgage (if applicable) and assignment of rents and leases (if applicable),
each in form and content acceptable to the Administrative Agent, whereupon such
Subsidiary shall constitute an Obligor hereunder.  In addition, the Borrower will, upon the
creation (or acquisition) of any such Subsidiary, execute and deliver an
amendment to the Primary Mortgage with respect to such Subsidiary in favor of
the Administrative Agent, for the benefit of the Lender Parties.  If any such Subsidiary is organized under a
jurisdiction other than the United States of America or a state thereof, the
Lender Parties will negotiate in good faith with the Borrower and such
Subsidiary to (a) limit the amount of the stock so pledged to the Lender
Parties; or (b) otherwise include provisions in such Subsidiary’s Guaranty
designed to prevent deemed distributions to the Borrower under Section 956 of
the Code; provided, however, that such provisions shall preserve the maximum
security possible in such Subsidiary, its assets and the Borrower’s equity interest
therein for the Lender Parties possible in connection with such considerations;
provided, further, that no Lender Party


 


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shall be responsible to the Borrower, any
Obligor, any such Subsidiary or any other Person for the sufficiency of such
provisions to accomplish their stated purpose.


 


Section 5.9           Minimum Interest Coverage Ratio.  The Borrower will maintain the Interest
Coverage Ratio of the Consolidated Group as of each Covenant Compliance Date at
not less than 3.25 to 1.00.


 


Section 5.10        Maximum Capitalization Ratio. 
The Borrower will maintain the Capitalization Ratio of the Consolidated
Group as of each Covenant Compliance Date at not more than 0.55 to 1.00.


 


Section 5.11        Minimum Net Working Capital. 
The Borrower will maintain the Net Working Capital of Consolidated Group
at not less than: (a) $35,000,000 as of each Fiscal Year-end of the
Borrower; and (b) $15,000,000 as of each Covenant Compliance Date that
does not constitute a Fiscal Year-end.


 


Section 5.12        Title Insurance Policy. 
Not later than sixty days after the Closing Date, the Borrower shall
deliver to the Administrative Agent an endorsement to the mortgagee’s title
policy, insuring the priority of the Primary Mortgage, reflecting recording of
the Third Modification Agreement to Restated Mortgage and Security Agreement
Mortgage Short-Term Redemption as executed by the Borrower and the First
Amendment to Mortgage and Security Agreement as executed by the Guarantor, and
updating title to the date of delivery of such endorsement.


 


ARTICLE VI


NEGATIVE COVENANTS


 


So long as any Obligations (other than contingent indemnity
obligations) remain unpaid or any Facility remains outstanding, the Borrower
will comply with the following requirements, unless the Required Lenders (or
the Administrative Agent, with the consent of the Required Lenders) shall
otherwise consent in writing:


 


Section 6.1           Liens.  The Borrower will not, and will not
permit any other Obligor to, create, incur or suffer to exist any Lien or other
charge or encumbrance of any nature on any of its assets, now owned or
hereafter acquired, or assign or otherwise convey any right to receive income
or give its consent to the subordination of any right or claim of any Obligor
to any right or claim of any other Person; excluding from the operation of the
foregoing (collectively, the “Permitted Liens”):


 


(a)           Liens in existence on
the date hereof and listed in Schedule 6.1;


 


(b)           Liens for taxes or
assessments or other governmental charges to the extent not required to be paid
by Section 5.4;


 


(c)           materialmen’s,
merchants’, carriers’, worker’s, repairer’s, landlord’s, warehouseman’s or
other like liens arising in the ordinary course of business to the extent not
required to be paid by Section 5.4;


 


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(d)           pledges or deposits to
secure obligations under worker’s compensation laws, unemployment insurance and
social security laws, or to secure the performance of bids, tenders, contracts
(other than for the repayment of borrowed money) or leases or to secure
statutory obligations or surety or appeal bonds, or to secure indemnity,
performance or other similar bonds in the ordinary course of business;


 


(e)           zoning restrictions,
easements, licenses, restrictions on the use of real property or minor
irregularities in title thereto, which do not materially impair the use of such
property in the operation of the business of any Obligor or the value of such
property for the purpose of such business;


 


(f)            Liens granted to the
Administrative Agent or the Lenders pursuant to any of the Security Documents;


 


(g)           CoBank’s statutory Lien
on all of the Capital Stock of CoBank owned by the Borrower;


 


(h)           purchase money Liens,
provided that:


 


(i)            no such Lien extends
or shall extend to or cover any property of an Obligor other than the property
then being acquired; and


 


(ii)           the aggregate principal
amount of the Debt secured by any such Lien shall not exceed the cost of such
property so acquired in connection therewith;


 


(i)            bankers’ liens, rights
of set off or similar rights as to accounts maintained with a financial
institution;


 


(j)            Liens to secure
Commodity Credit Corporation Loans; and


 


(k)           any judgment Liens
relating to judgments not constituting an Event of Default under Section 7.1(h).


 


Section 6.2           Debt. 
The Borrower will not, and will not permit any other Obligor to, incur,
create, assume, permit or suffer to exist, any Debt except:


 


(a)           Obligations arising
hereunder;


 


(b)           Debt (including
Subordinated Debt) in existence on the Closing Date and listed in
Schedule 6.2; together with any extension, renewal or replacement thereof
(so long as such indebtedness is not increased above the amount outstanding
immediately prior to giving effect to any such extension, renewal or
replacement);


 


(c)           Debt of an Obligor
secured by the purchase money Liens permitted in accordance with Section 6.1(h),
provided the aggregate amount of such Debt at any time outstanding does not to
exceed $4,000,000;


 


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(d)           Rate Hedging
Arrangements;


 


(e)           Commodity Credit
Corporation Loans; and


 


(f)            commercial paper
issued by an Obligor.


 


Section 6.3           Guaranties. 
The Borrower will not, and will not permit any other Obligor to, assume,
guarantee, endorse or otherwise become directly or contingently liable in
connection with any obligations of any other Person, except:


 


(a)           the Guaranties;


 


(b)           the endorsement of
negotiable instruments for deposit or collection or similar transactions in the
ordinary course of business; and


 


(c)           guaranties,
endorsements and other direct or contingent liabilities in connection with the
obligations of other Persons in existence on the Closing Date and listed in
Schedule 6.3; together with any
extension, renewal or replacement thereof (so long as such indebtedness is not
increased above the amount outstanding immediately prior to giving effect to
any such extension, renewal or replacement).


 


Section 6.4           Investments.  The Borrower will not, and will not permit
any other Obligor to, make, purchase, hold or permit to exist any Investment,
except:


 


(a)           Investments in direct
obligations of the United States of America or any agency or instrumentality
thereof whose obligations constitute the full faith and credit obligations of
the United States of America having a maturity of 1 year or less, commercial
paper issued by a U.S. corporation rated at least “A-1” or “A-2” by Standard &
Poor’s Rating Group or “P-1” or “P-2” by Moody’s Investors Service, Investments
in money market mutual funds whose underlying assets are exclusively
Investments which would otherwise be permitted Investments under this Section 6.4(a), or repurchase agreements, certificates
of deposit or bankers’ acceptances having a maturity of 1 year or less issued
by members of the Federal Reserve System having deposits in excess of
$500,000,000 (which certificates of deposit or bankers’ acceptances are fully
insured by the Federal Deposit Insurance Corporation);


 


(b)           trade credit extended
in the ordinary course of business;


 


(c)           advances in the form of
progress payments, prepaid rent or security deposits;


 


(d)           Investments by any
Obligor in another Obligor or any joint venture or similar arrangements in
which such Obligor has an interest as set forth in Schedule 6.4, including
intercompany transfers, advances, loans, guarantees or other financial
accommodations;


 


(e)           other Investments of
the Obligors in existence on the Closing Date,  as
set forth and described in Schedule 6.4;


 


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(f)            other Investments not
otherwise permitted under this Section 6.4
in an aggregate amount not to exceed $7,500,000 made and funded during each
Fiscal Year; and


 


(g)           any deposits held at,
or any Investments issued by, any Lender or the Administrative Agent.


 


Section 6.5           Restricted Payments.  The Borrower will not declare or make any
Restricted Payments if a Default or Event of Default shall then exist or would
exist after giving effect to such payment.


 


Section 6.6           Restrictions on Sale and Issuance of Subsidiary Stock.  The Borrower will not:


 


(a)           permit any of its
Subsidiaries to issue or sell any shares of any class of such Subsidiary’s
Capital Stock to any other Person (other than to the Borrower or a wholly-owned
Subsidiary of the Borrower);


 


(b)           sell, transfer or
otherwise dispose of any shares of any class of any of its Subsidiary’s Capital
Stock to any other Person (except to the Borrower or a wholly-owned Subsidiary
of the Borrower); or


 


(c)           permit any of its
Subsidiaries to sell, transfer or otherwise dispose of any shares of any class
of Capital Stock of any other Subsidiary of the Borrower to any other Person
(other than to the Borrower or a wholly-owned Subsidiary of the Borrower).


 


Section 6.7           Transactions With Affiliates.  The Borrower will not, and will not permit
any other Obligor to, enter into or be a party to any transaction with any
Affiliate of any such Obligor except in the ordinary course of, and pursuant
to, the reasonable requirements of such Obligor’s business and upon fair and
reasonable terms that are no less favorable to such Obligor than would be
obtained in a comparable arms-length transaction with a Person not an Affiliate
of such Obligor.


 


Section 6.8           Consolidation and Merger; Asset Acquisitions; Sale or
Transfer of Assets; Suspension of Business Operations.  The Borrower shall not, and shall not permit
any other Obligor to, consolidate with or merge into any Person, or permit any
other Person to merge into it, or acquire (in a transaction analogous in
purpose or effect to a consolidation or merger) all or substantially all the
assets of any other Person, or liquidate, wind-up or dissolve itself (or suffer
any liquidation or dissolution), or convey, sell, lease or sub-lease (as lessor
or sublessor), transfer or otherwise dispose of, in one transaction or a series
of transactions, all or a substantial part of the assets of the Consolidated
Group, whether now owned or hereafter acquired, and will not liquidate,
dissolve or suspend its business operations, except for:


 


(a)           the sale of Inventory
in the ordinary course of business;


 


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(b)           the sale of equipment
that is obsolete, not fully functional or no longer useful in the business of
an Obligor; provided that the aggregate value of such disposed equipment in any
Fiscal Year is less than $7,500,000;


 


(c)           other dispositions of
personal property if the aggregate net book value of such disposed property in
any Fiscal Year does not exceed 5% of Borrower’s consolidated assets as shown
on its balance sheet as of the end of the immediately preceding Fiscal Year;


 


(d)           the sale, lease or
transfer of all or a substantial part of the assets of an Obligor (other than
the Borrower) to another Obligor;


 


(e)           the merger of any
Obligor (other than the Borrower) with or into another Obligor, or the
liquidation, winding up or dissolving of any Obligor (other than the Borrower);


 


(f)            discounting or
otherwise compromising for less than face value notes or accounts receivable in
order to resolve disputes that occur in the ordinary course of business;


 


(g)           the sale or disposing
of shares of Capital Stock of any Subsidiaries to the extent permitted by Section 6.6; and


 


(h)           the merger of any
Person with or into an Obligor if the acquisition of the Capital Stock of such
Person by the Obligor would have been permitted pursuant to Section 6.4; provided that (i) in the case of the
Borrower, the Borrower shall be the continuing or surviving Person; (ii) if
a Guarantor is not the surviving or continuing Person, the surviving Person
becomes a Guarantor and complies with the provisions of Section 5.8; and (iii) no Default or Event of
Default shall have occurred or be continuing after giving effect thereto.


 


Section 6.9           Sale and Leaseback.  The Borrower will not, and will not permit
any other Obligor to, enter into any arrangement, directly or indirectly, with
any other Person whereby any Obligor shall sell or transfer any real or
personal property, whether now owned or hereafter acquired, and then or
thereafter rent or lease as lessee such property or any part thereof or any
other property that an Obligor intends to use for substantially the same
purpose or purposes as the property being sold or transferred.


 


Section 6.10        Restrictions on Nature of Business.  The Borrower will not, and will not permit
any other Obligor to, engage in any line of business materially different from
that presently engaged in by the Borrower or any such Obligor and will not, and
will not permit any other Obligor to, purchase, lease or otherwise acquire
assets not related to its business.


 


Section 6.11        Accounting.  The
Borrower will not, and will not permit any other Obligor to, adopt any material
change in accounting principles, other than as required by GAAP, and will not,
and will not permit any other Obligor to, adopt, permit or consent to any
change in its Fiscal Year.


 


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Section 6.12        Hazardous Substances. 
The Borrower will not cause or permit, and will not permit any other
Obligor to cause or permit, any Hazardous Substances to be disposed of in any
manner that might result in any material liability to any Obligor on, under or
at any real property that is operated by any Obligor or in which any Obligor
has any interest.


 


Section 6.13        Subordinated Debt.  The
Borrower will not, and will not permit any other Obligor to, issue any
Subordinated Debt without first obtaining the prior written consent of the
Required Lenders (it being understood that the Subordinated Debt set forth and
described in Schedule 6.2 is hereby approved) and, if obtained, will not,
and will not permit any other Obligor to, (a) make any payment of any
principal, interest or fees due under or acquire any Subordinated Debt in
violation of the Subordination Agreement or the subordination provisions
applicable thereto or prepay, purchase or otherwise acquire any Subordinated
Debt; (b) give security for all or any part of any Subordinated Debt unless
such security is expressly permitted and contemplated under the relevant
Subordination Agreement or the subordination provisions applicable thereto; (c) take
any action whereby the subordination of any Subordinated Debt or any part
thereof to the Obligations might be terminated, impaired or adversely affected;
(d) omit to give the Administrative Agent prompt written notice of any
default under any Subordinated Debt of which the Borrower has Knowledge by
reason whereof any Subordinated Debt might become or be declared to be
immediately due and payable; (e) amend, supplement or otherwise modify any
terms or provisions of any documents evidencing or securing any Subordinated
Debt without first obtaining the prior written consent of the Required Lenders.


 


Section 6.14        Tax Consolidation.  The
Borrower will not, and will not permit any other Obligor to, file or consent to
the filing of, any consolidated income tax return with any Person other than a
Subsidiary of any Obligor or the Borrower.


 


Section 6.15        Negative Pledges, Restrictive Agreements, etc.  The Borrower will not, and will not permit
any other Obligor to, enter into any agreement (excluding this Agreement and
any agreement governing any Debt permitted by Section 6.2(c) as to the assets financed with the proceeds of such Debt)
that would (a) require any Obligor to grant a Lien to any Person other
than the Administrative Agent, other than the Permitted Liens; (b) prohibit
the creation or assumption of any Lien in favor of the Administrative Agent
upon such Obligor’s properties, revenues or assets, whether now owned or
hereafter acquired, or the ability of any Obligor to amend or otherwise modify
any Loan Document; or (c) prohibit the ability of any Obligor (other than
the Borrower) to make any payments directly or indirectly to the Borrower, by
way of dividends, advances, repayments of loans or advances, reimbursements of
management and any other intercompany charges, expenses and accruals or other
returns on investments, or any other agreement or arrangement that restricts
the ability of any such Obligor to make any payment, directly or indirectly, to
the Borrower.


 


Section 6.16        Inconsistent Agreements. 
The Borrower will not, and will not permit any other Obligor to, enter
into any agreement or arrangement that is inconsistent with the obligations of
any Obligor under this Agreement or any other Loan Document.


 


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ARTICLE VII


EVENTS OF DEFAULT; RIGHTS AND REMEDIES


 


Section 7.1           Events of Default.  “Event of
Default”, wherever used herein, means any one of the following
events:


 


(a)           Default in the payment
of any principal of any Loan when it becomes due and payable, including but not
limited to any such payment becoming due and payable under Section 2.12(i), and the continuation of such default
for more than 5 Business Days.


 


(b)           Default in the payment
of any Obligation (other than the payment of any principal of any Loan) when
the same becomes due and payable, and the continuation of such default for more
than 5  Business Days.


 


(c)           Default in the
performance, or breach, of any Financial Covenant or any covenant or agreement
of the Borrower under Section 2.15, Section 5.7 or Article VI.


 


(d)           Default in the
performance, or breach, of any covenant or agreement of the Borrower in this
Agreement (other than a covenant or agreement a default in whose performance or
whose breach is specifically dealt with elsewhere in this Section 7.1), or default in the performance, or breach,
of any covenant or agreement of any Obligor in any other Loan Document (other
than a covenant or agreement a default in whose performance or whose breach is
specifically dealt with elsewhere in this Section 7.1), and, in each case, the continuance of such default or breach
for a period of 30 calendar days after any Obligor has Knowledge thereof.


 


(e)           (i) Any Obligor
shall be or become insolvent, however defined; or admit in writing its
inability to pay debts as they mature; or make a general assignment for the
benefit of its creditors; or cease to do business in the ordinary course; (ii) any
Obligor shall institute any bankruptcy, insolvency, reorganization,
dissolution, liquidation or similar proceeding relating to itself under the
laws of any jurisdiction; or any Obligor shall take any action to authorize any
such proceeding; or any such proceeding shall be instituted against any Obligor
and shall not be dismissed or discharged within 60  days
after its commencement; or any Obligor shall admit all of the material
allegations with respect to any such proceeding; or an order for relief or
similar order shall be entered in any such proceeding; (iii) any Obligor
shall apply for the appointment of any receiver, trustee or similar officer for
itself or for all or substantially all of its property; or any Obligor shall
take any action to authorize any such appointment; or an action for any such
appointment shall be commenced by any other Person and such action shall not be
dismissed or discharged within 60 days after its commencement; or any Obligor
shall admit all of the material allegations with respect to any such action; or
any such appointment shall be made, with or without the consent of the
applicable Obligor; or (iv) a warrant, writ of attachment, execution or similar
process shall be issued or levied against any substantial part of the property
of any Obligor and shall not be fully released, stayed, vacated or bonded
within  60 days after such issuance or levy.


 


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(f)            A petition shall be
filed by any Obligor under the United States Bankruptcy Code naming any Obligor
as debtor; or an involuntary petition shall be filed against any Obligor under
the United States Bankruptcy Code, and such petition shall not have been
dismissed within 60 days after such filing; or an order for relief shall be
entered in any case under the United States Bankruptcy Code naming any Obligor
as debtor.


 


(g)           Any representation or
warranty made by any Obligor in any Loan Document or by the Borrower (or any of
its officers) in any request for a Credit Extension, or in any other
certificate, instrument, or statement contemplated by or made or delivered
pursuant to or in connection with any Loan Document, shall prove to have been
incorrect in any material respect when made.


 


(h)           The rendering against
any Obligor of a final judgment, decree or order for the payment of money,
which, when added to all other such unsatisfied judgments, decrees or orders
then outstanding, exceed $7,500,000 (unless the payment of such judgments,
decrees or orders are fully insured) and either (i) the judgment creditor
executes on any such judgment, or (ii) any such judgment, decree or order
remains unpaid or continues unsatisfied and in effect for any period of 60
consecutive calendar days without a stay of execution.


 


(i)            A writ of attachment,
garnishment, levy or similar process shall be issued against or served on any
Lender Party with respect to (i) any property of any Obligor in the
possession of such Lender Party; or (ii) any indebtedness of any Lender
Party to any Obligor.


 


(j)            Maturity of any
material interest-bearing Debt of any Obligor (other than Debt under this
Agreement) shall be accelerated, or any Obligor shall fail to pay any such
material Debt when due (after the lapse of any applicable grace period) or, in
the case of such Debt payable on demand, when demand (after the lapse of any
applicable grace period), or any event shall occur or condition shall exist and
shall continue for more than the period of grace, if any, applicable thereto
and shall have the effect of causing, or permitting the holder of any such Debt
or any trustee or other Person acting on behalf of such holder to cause, such
material Debt to become due prior to its stated maturity or to realize upon any
collateral given as security therefore. 
For purposes of this subsection (j),
Debt of an Obligor shall be deemed “material” if it exceeds $7,500,000 as to
any item of Debt or in the aggregate for all items of Debt with respect to
which any of the events described in this subsection (j) has occurred, and Debt
of an Obligor shall not include Commodity Credit Corporation Loans so long as
such Commodity Credit Corporation Loans constitute non-recourse Debt of an
Obligor.


 


(k)           Any Guarantor shall attempt
to reject, terminate or rescind its Guaranty or any Security Document to which
it is a party or shall contest in any manner the validity, binding nature or
enforceability of its Guaranty or any Security Document to which is a party.


 


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(l)            Any Reportable Event,
which the Administrative Agent or the Required Lenders determine in good faith
may constitute grounds for the termination of any Pension Plan or for the
appointment by the appropriate United States District Court of a trustee to
administer any Pension Plan, shall have occurred and be continuing 30 days
after written notice to such effect shall have been given to the Borrower by
the Administrative Agent; or a trustee shall have been appointed by an
appropriate United States District Court to administer any Pension Plan; or the
Pension Benefit Guaranty Corporation shall have instituted proceedings to
terminate any Pension Plan or to appoint a trustee to administer any Pension
Plan; or any Obligor or any of its ERISA Affiliates shall have filed for a
distress termination of any Pension Plan under Title IV of ERISA; or any
Obligor or any of its ERISA Affiliates shall have failed to make any quarterly
contribution required with respect to any Pension Plan under Section 412(m) of
the Code, which the Administrative Agent or the Required Lenders determine in
good faith may by itself, or in combination with any such failures that the
Administrative Agent or the Required Lenders may determine are likely to occur
in the future, result in the imposition of a Lien on any Obligor’s assets in
favor of the Pension Plan; or any withdrawal, partial withdrawal,
reorganization or other event occurs with respect to a Multi-Employer Plan
which results or could reasonably be expected to result in a material liability
of any Obligor to the Multi-Employer Plan under Title IV of ERISA.


 


(m)          Any Change of Control
shall occur.


 


(n)           Any Security Document
shall, at any time, cease to be in full force and effect or shall be judicially
declared null and void, or the validity or enforceability thereof shall be
contested by any Obligor, or the Administrative Agent shall cease to have a
valid and perfected security interest having the priority contemplated
thereunder in all of the collateral described therein, other than by action or
inaction of the Administrative Agent, if (i) the aggregate value of the
collateral affected by any of the foregoing exceeds $1,000,000, and (ii) any
of the foregoing shall remain unremedied for 20 calendar days after any Obligor
has Knowledge thereof.


 


Section 7.2           Rights and Remedies.  Upon the occurrence of an Event of Default or
at any time thereafter until such Event of Default is cured or waived to the
written satisfaction of the Required Lenders, the Administrative Agent or the
Required Lenders may (and, upon written request of the Required Lenders the
Administrative Agent shall) exercise any or all of the following rights and
remedies:


 


(a)           By notice to the
Borrower, declare the Commitments to be terminated, whereupon the same shall
forthwith terminate.


 


(b)           By notice to the
Borrower, declare the entire unpaid principal amount of the Loans, all interest
accrued and unpaid thereon, and all other amounts payable under this Agreement
to be forthwith due and payable, whereupon the Loans, all such accrued interest
and all such 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.


 


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(c)           By notice to the
Borrower, demand payment by the Borrower of funds with respect to each
outstanding Letter of Credit in an amount sufficient to fund a cash collateral
account equal to the Letter of Credit Exposure, which cash collateral account
will be held by the Administrative Agent (or its designee), without interest,
as a pledged cash collateral account and promptly applied to reimbursement of
all drafts submitted under outstanding Letters of Credit.


 


(d)           Without notice to the
Borrower and without further action, apply any and all monies owing by any
Lender Party to any Obligor to the payment of the Loans, including interest
accrued thereon, and of all other Obligations then owing by the Borrower hereunder.


 


(e)           Apply for the
employment of, or taking possession by, a trustee, receiver, liquidator or
other similar official of the Borrower to hold or liquidate all or any
substantial part of the properties or assets of the Borrower.


 


(f)            Exercise and enforce
the rights and remedies available to any Lender Party under any Loan Document.


 


(g)           Exercise any other
rights and remedies available to any Lender Party by law or agreement.


 


Notwithstanding the foregoing, upon the
occurrence of an Event of Default described in Section 7.1(e) or (f), the entire unpaid principal
amount of the Loans, all interest accrued and unpaid thereon, and all other
amounts payable under this Agreement shall be immediately due and payable
without presentment, demand, protest or notice of any kind.  Notwithstanding any other provision of the
Loan Documents, no Lender Party (other than the Administrative Agent) may
individually exercise any rights under or with respect to the Loan Documents
that arise after an Event of Default without the consent of the Required
Lenders.


 


Section 7.3           Right of Setoff.  If an Event of Default shall have occurred
and shall be continuing, each Lender Party and each of their Affiliates is
hereby authorized at any time and from time to time, to the fullest extent
permitted by applicable law, to set off and apply any and all deposits (general
or special, including but not limited to Indebtedness evidenced by certificates
of deposit, whether matured or unmatured, but excluding any deposits held in
escrow or pursuant to a fiduciary obligation on behalf of or for the benefit of
third parties) at any time held and other obligations (in whatever currency) at
any time owing by such Lender Party or any such Affiliate to or for the credit
or the account of any Obligor against any and all of the obligations of such
Obligor now or hereafter existing under this Agreement or any other Loan
Document to such Lender Party or any such Affiliate, irrespective of whether or
not such Lender Party shall have made any demand under this Agreement or any
other Loan Document and although such obligations of such Obligor may be
contingent or unmatured or are owed to a branch or office of such Lender Party
different from the branch or office holding such deposit or obligated on such
indebtedness.  The rights of each Lender
Party and its Affiliates under this Section are in addition to other rights and
remedies (including other rights of setoff) that such Lender Party or its
Affiliates may have.


 


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ARTICLE VIII


AGREEMENT AMONG LENDERS AND ADMINISTRATIVE AGENT


 


Section 8.1           Authorization; Powers; Administrative Agent for
Collateral Purposes.  Each
Lender irrevocably appoints and authorizes the Administrative Agent to act as
administrative agent for and on behalf of such Lender to the extent provided
herein, in any Loan Documents or in any other document or instrument delivered
hereunder or in connection herewith, and to take such other actions as may be
reasonably incidental thereto.  The
Administrative Agent agrees to act as administrative agent for each Lender upon
the express conditions contained in this Article VIII, but in no event shall
the Administrative Agent constitute a fiduciary of any Lender, nor shall the
Administrative Agent have any fiduciary responsibilities in respect of any
Lender.  In furtherance of the foregoing,
and not in limitation thereof, each Lender irrevocably (a) authorizes the
Administrative Agent to execute and deliver and perform those obligations under
each of the Loan Documents to which the Administrative Agent is a party as are
specifically delegated to the Administrative Agent, and to exercise all rights,
powers and remedies as may be specifically delegated hereunder or thereunder,
together with such additional powers as may be reasonably incidental thereto; (b) appoints
the Administrative Agent as nominal beneficiary or nominal secured party, as
the case may be, under the Loan Documents and all related UCC financing
statements; and (c) authorizes the Administrative Agent to act as
collateral agent of and for such Lender for purposes of holding, perfecting and
disposing of Collateral under the Loan Documents.  As to any matters not expressly provided for
by the Loan Documents, the Administrative Agent shall not be required to
exercise any discretion or take any action, but shall be required to act or to
refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Required Lenders or, if so required
pursuant to Section 9.2, upon the
instructions of all Lenders; provided, however, that except for action
expressly required of the Administrative Agent hereunder, the Administrative
Agent shall in all cases be fully justified in failing or refusing to act
hereunder unless it shall be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action, and the Administrative Agent
shall not in any event be required to take any action which is contrary to the
Loan Documents or applicable law.


 


Section 8.2           Application of Proceeds.  The Administrative Agent, after deduction of
any costs of collection, as provided in Section 8.5,
shall remit to each Lender (to the extent a Lender is to share therein) such
Lender’s pro rata share of all payments of principal, interest and fees payable
hereunder in accordance with such Lender’s applicable Percentage.  Notwithstanding anything to the contrary in
this Agreement or any other Loan Document, (a) all payments received by
the Administrative Agent or any Lender prior to the occurrence of an Event of
Default in respect of Rate Hedging Obligations shall be remitted directly to
the appropriate counterparty with respect to such Rate Hedging Obligations and
no other Lender shall be entitled to any portion thereof; and (b) all amounts
received by the Administrative Agent or any Lender after the occurrence of an
Event of Default shall be shared by the Lenders in accordance with the applicable
Percentage of each Lender, irrespective of the Collateral from which such
payments are derived or the Facility to which they may relate.  Each Lender’s interest under the Loan
Documents shall be payable solely from payments, collections and proceeds actually
received by the Administrative Agent under the Loan Documents; and the
Administrative Agent’s only liability to a Lender with respect to any such
payments, collections


 


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and proceeds shall be to account for such
Lender’s Percentage of such payments, collections and proceeds in accordance
with this Agreement.  If the
Administrative Agent is required for any reason to refund any such payments,
collections or proceeds, each Lender will refund to the Administrative Agent,
upon demand, its Percentage of such payments, collections or proceeds, together
with its Percentage of interest or penalties, if any, payable by the
Administrative Agent in connection with such refund.  If any Lender becomes a Defaulting Lender,
the Administrative Agent may remit payments received by it to the other Lenders
until such payments have reduced the aggregate amounts owed by the Borrower to
the extent that the aggregate amount of the Advances owing to such Defaulting
Lender hereunder are equal to its Percentage of the aggregate amounts of the
Advances owing under the applicable Facility to all of the Lenders
hereunder.  The foregoing provision is
intended only to set forth certain rules for the application of payments,
proceeds and collections in the event that a Lender has breached its
obligations hereunder and shall not be deemed to excuse any Lender from such
obligations.


 


Section 8.3           Exculpation.  The Administrative Agent shall not be liable
for any action taken or omitted to be taken by the Administrative Agent in
connection with the Loan Documents, except for its own gross negligence or
willful misconduct.  The Administrative
Agent shall be entitled to rely upon advice of counsel concerning legal
matters, the advice of independent public accountants with respect to
accounting matters and advice of other experts as to any other matters and upon
any Loan Document and any schedule, certificate, statement, report, notice or
other writing which it reasonably believes to be genuine or to have been
presented by a proper Person.  Neither
the Administrative Agent nor any of its Directors, officers, employees or
agents shall be responsible or in any way liable for (a) any recitals,
representations or warranties contained in, or for the execution, validity,
genuineness, effectiveness or enforceability of any Loan Document, or any other
instrument or document delivered hereunder or in connection herewith; (b) the
validity, genuineness, perfection, effectiveness, enforceability, existence, value
or enforcement of any Collateral; or (c) any action taken or omitted by
it.  The designation of CoBank as
administrative agent hereunder shall in no way impair or affect any of the
rights and powers of, or impose any duties or obligations upon, CoBank in its
individual capacity as a Lender hereunder.


 


Section 8.4           Use of the Term “Administrative Agent”.  The term “Administrative
Agent” is used herein in reference to the Administrative Agent
merely as a matter of custom.  It is
intended to reflect only an administrative relationship between the
Administrative Agent and the Lenders as an independent contracting party.  However, the obligations of the
Administrative Agent shall be limited to those expressly set forth herein and
in no event shall the use of such term create or imply any fiduciary
relationship or any other obligation arising under the general law of agency.


 


Section 8.5           Reimbursement for Costs and Expenses.  All payments, collections and proceeds
received or effected by the Administrative Agent may be applied first to pay or
reimburse the Administrative Agent for all reasonable costs and expenses at any
time incurred by or imposed upon the Administrative Agent in connection with
this Agreement or any other Loan Document (including but not limited to all
reasonable attorney’s fees (including allocated costs of in-house counsel),
foreclosure expenses and advances made to protect the security of any
Collateral, but excluding any costs, expenses, damages or liabilities arising
from the gross negligence or willful misconduct of the Administrative
Agent).  If the Administrative


 


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Agent does not receive payments, collections
or proceeds sufficient to cover any such costs and expenses within 5 days after
their incurrence or imposition, each Lender shall, upon demand and provision of
reasonably timely invoices and other evidence of any such amounts, remit to the
Administrative Agent such Lender’s Percentage of the difference between (a) such
costs and expenses; and (b) such payments, collections and proceeds, together
with interest on such amount for each day following the thirtieth day after
demand therefor until so remitted at a rate equal to the Federal Funds Rate for
each such day; provided, however, that in no event shall a Lender be obligated
to reimburse the Administrative Agent for any such costs or expenses incurred
in connection with Rate Hedging Arrangements or other matters undertaken by the
Administrative Agent for its own benefit and not for the benefit of all Lenders
generally.


 


Section 8.6           Payments Received Directly by Lenders.  If any Lender shall obtain any payment or
other recovery (whether voluntary, involuntary, by application of offset or
otherwise) on account of any Obligations (other than through distributions made
in accordance with Section 8.2
hereof) in excess of such Lender’s applicable Percentage with respect thereto,
such Lender shall promptly give notice of such fact to the Administrative Agent
and shall promptly remit to the Administrative Agent such amount as shall be
necessary to cause the remitting Lender to share such excess payment or other
recovery ratably with each of the Lenders in accordance with their respective
Percentages, together with interest for each day on such amount until so
remitted at a rate equal to the Federal Funds Rate for each such day; provided,
however, that if all or any portion of the excess payment or other recovery is
thereafter recovered from such remitting Lender or holder, the remittance shall
be restored to the extent of such recovery.


 


Section 8.7           Administrative Agent and Affiliates.  CoBank shall have the same rights and powers
in its capacity as a Lender hereunder as any other Lender, and may exercise or
refrain from exercising the same as though it were not the Administrative Agent
hereunder, and CoBank and its affiliates may accept deposits from and generally
engage in any kind of business with any Obligor or any Affiliate of any Obligor
as fully as if CoBank were not the Administrative Agent hereunder.


 


Section 8.8           Credit Investigation.  Each Lender acknowledges that it has made
such inquiries and taken such care on its own behalf as would have been the
case had its Commitments been granted and its Advances made directly by such
Lender to the Borrower without the intervention of the Administrative Agent or
any other Lender.  Each Lender agrees and
acknowledges that no Lender Party makes any representation or warranty about
the creditworthiness of any Obligor or any other party to this Agreement or
with respect to the legality, validity, sufficiency or enforceability of this
Agreement, any Loan Document, any Collateral or any other instrument or
document delivered hereunder or in connection herewith.


 


Section 8.9           Defaults. 
The Administrative Agent shall have no duty to inquire into any
performance or failure to perform by the Borrower and shall not be deemed to
have knowledge of the occurrence of a Default or an Event of Default (other
than under Section 7.1(a) or 7.1(b)) hereof unless the Administrative Agent
has received notice from a Lender Party or the Borrower specifying the
occurrence of such Default or Event of Default. 
If the Administrative Agent receives such a notice of the occurrence of
a Default or an Event of Default, the Administrative Agent shall give prompt
notice thereof to the Lenders.  In the
event of any


 


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Default or Event of Default, the
Administrative Agent (subject to Section 8.1)
shall take such actions with respect to such Default or Event of Default as
shall be directed by the Required Lenders; provided that, (a) the
Administrative Agent shall not need the consent or direction of the Required
Lenders to provide such notices as may be required as a prerequisite to a Default
becoming an Event of Default; and (b) unless and until the Administrative Agent
shall have received directions as contemplated herein, the Administrative Agent
may take any action, or refrain from taking any action, with respect to such
Default of Event of Default as it shall deem advisable.


 


Section 8.10        Obligations Several. 
The obligations of each Lender Party hereunder are the several
obligations of such Lender Party, and no Lender Party shall be responsible for
the obligations of any other Lender Party hereunder, nor will the failure by
any Lender Party to perform any of its obligations hereunder relieve any other
Lender Party from the performance of its obligations hereunder.  Nothing contained in this Agreement, and no
action taken by any Lender Party pursuant hereto or in connection herewith or
pursuant to or in connection with the Loan Documents shall be deemed to
constitute the Lender Parties as a partnership, association, joint venture, or
other entity.


 


Section 8.11        Resignation and Assignment
of Administrative Agent.


 


(a)           The Administrative
Agent may resign as such at any time upon at least 30 days’ prior notice to the
Borrower and the Lender Parties.  In the
event of any resignation of the Administrative Agent, the Required Lenders
shall as promptly as practicable appoint a successor Administrative Agent
(provided that if no Event of Default then exists, the Borrower shall have the
right to approve such successor agent, such approval not to be unreasonably
withheld).  If no such successor Administrative
Agent shall have been so appointed by the Required Lenders and shall have
accepted such appointment within 30 days after the resigning Administrative
Agent’s giving of notice of resignation, then the resigning Administrative
Agent may, on behalf of the Lenders, appoint a successor Administrative Agent,
which shall be a commercial bank organized under the laws of the United States
of America or of any State thereof (provided that if no Event of Default then
exists the Borrower shall have the right to approve such successor agent, such
approval not to be unreasonably withheld).


 


(b)           The Administrative
Agent may, without the consent of the Borrower or the other Lender Parties,
assign its rights and obligations as Administrative Agent hereunder and under
the other Loan Documents to its parent or to any wholly owned subsidiary of its
parent, and upon such assignment, the former Administrative Agent shall be
deemed to have retired, and such parent or wholly owned subsidiary shall be
deemed to be a successor Administrative Agent.


 


(c)           Upon the acceptance of
any appointment as Administrative Agent hereunder by a successor Administrative
Agent, such successor Administrative Agent shall thereupon be entitled to
receive from the prior Administrative Agent such documents of transfer and
assignment as such successor Administrative Agent may reasonably request and
the resigning or assigning Administrative Agent shall be discharged from its
duties and obligations under this Agreement to be performed after the


 


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time of transfer.  After any
resignation or assignment pursuant to this Section 8.11, the provisions of this Section 8.11 shall inure to the benefit of the retiring Administrative
Agent as to any actions taken or omitted to be taken by it while it was acting
as Administrative Agent hereunder.


 


Section 8.12        Lead Arranger and Syndication Agent.  Any Lender identified on the title page to
this Agreement as “Lead Arranger” or “Syndication Agent” shall have no right,
power, obligation or liability under this Agreement or any other Loan Document
other than those applicable to all Lenders as such.  Each Lender acknowledges that it has not
relied, and will not rely, on any Lender so identified in deciding to enter
into this Agreement or in taking or omitting any action hereunder.


 


Section 8.13        Borrower not a Beneficiary or Party.  Except with respect to the limitation of
liability applicable to the Lenders under Section 8.10 and approval rights with respect to any successor
Administrative Agent under Section 8.11, the provisions and agreements in
this Article VIII are solely among the Lender Parties, and the Borrower
shall not be considered a party thereto or a beneficiary thereof.


 


ARTICLE IX


MISCELLANEOUS


 


Section 9.1           No Waiver; Cumulative Remedies.  No failure or delay on the part of any Lender
Party in exercising any right, power or remedy under the Loan Documents shall
operate as a waiver thereof; nor shall any single or partial exercise of any
such right, power or remedy preclude any other or further exercise thereof or
the exercise of any other right, power or remedy under the Loan Documents.  The remedies provided in the Loan Documents
are cumulative and not exclusive of any remedies provided by law.


 


Section 9.2           Amendments, Requested Waivers, Etc.  No amendment, modification, termination or
waiver of any provision of any Loan Document or consent to any departure by the
Borrower therefrom shall be effective unless the same shall be in writing and
signed by the Required Lenders and, if the rights or duties of the
Administrative Agent or the Letter of Credit Issuer are affected thereby, by
the Administrative Agent or the Letter of Credit Issuer, as the case may be;
provided, however, that no amendment, modification, termination, waiver or
consent shall do any of the following unless the same shall be in writing and
signed by the Administrative Agent and each Lender affected thereby (and, as to
clauses (d), (e) , (f), (g) and (i) hereof, all Lenders shall be
deemed affected): (a) change the amount of any Commitment (except as permitted
in accordance with Section 9.3(b)); (b) reduce
the amount of any principal of or interest due on any Advances, the Unused Fees
or any Letter of Credit Fees payable to a Lender hereunder; (c) postpone any
date fixed for any payment of principal of or interest on any outstanding
Advances or the Unused Fees or Letter of Credit Fees payable to a Lender
hereunder; (d) change the definition of “Required Lenders”; (e) change
the definition of “Borrowing Base” or the definition used in calculations
thereof;  (f) amend this Section 9.2 or any other provision of this Agreement
requiring the consent or other action of the Required Lenders or any particular
Lender; (g) release any Guaranty; (h) waive any Default or Event of
Default; or (i) release, subordinate or terminate any Lien in all or
substantially all of the Collateral.  Any
waiver or consent given hereunder shall be effective only in the specific
instance


 


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and for the specific purpose for which
given.  No notice to or demand on the
Borrower in any case shall entitle the Borrower to any other or further notice
or demand in similar or other circumstances.


 


Section 9.3           Successors and Assigns;
Register.


 


(a)           Successors and Assigns Generally.  The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns permitted hereby, except that the Borrower
may not assign or otherwise transfer any of its rights or obligations hereunder
without the prior written consent of the Administrative Agent and each Lender,
and no Lender may assign or otherwise transfer any of its rights or obligations
hereunder, except (i) to an assignee in accordance with the provisions of
paragraph (b) of this Section; (ii) by way of participation in
accordance with the provisions of paragraph (d) of this Section; or (iii) by
way of pledge or assignment of a Lien subject to the restrictions of paragraph (f) of
this Section (and any other attempted assignment or transfer by any party
hereto shall be null and void).  Nothing
in this Agreement, express or implied, shall be construed to confer upon any
Person (other than the parties hereto, their respective successors and assigns
permitted hereby, Participants to the extent provided in paragraph (d) of this Section and,
to the extent expressly contemplated hereby, the Affiliates of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.


 


(b)           Assignments by Lenders.  Any Lender may at any time assign to one or
more Eligible Lenders all or a portion of its rights and obligations under this
Agreement (including all or a portion of its Commitments and the Loans at the
time owing to it); provided that any such assignment shall be subject to the
following conditions:


 


(i)            Minimum
Amounts.


 


(A)          In the case of an
assignment of the entire remaining amount of the assigning Lender’s Commitment
and the Loans at the time owing to it, or in the case of an assignment to a
Lender, no minimum amount need be assigned.


 


(B)          In any case not
described in paragraph (b)(i)(A) of this Section, the aggregate amount of
the Commitment (which for this purpose includes Loans outstanding thereunder)
or, if the applicable Commitment is not then in effect, the principal
outstanding balance of the Loans of the assigning Lender subject to each such
assignment (determined as of the date the Assignment and Assumption with respect
to such assignment is delivered to the Administrative Agent or, if “Trade Date”
is specified in the Assignment and Assumption, as of such Trade Date) shall not
be less than $5,000,000.


 


(ii)           Proportionate Amounts.  Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lender’s rights and


 


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obligations
under this Agreement with respect to the Loans and the Commitment assigned.


 


(iii)          Required Consents.  No consent shall be required for any
assignment except as follows:


 


(A)          The consent of the
Borrower (such consent not to be unreasonably withheld or delayed) shall be
required unless (x) a Default or Event of Default has occurred and is
continuing at the time of such assignment, or (y) such assignment is to a
Lender or an Affiliate of a Lender.


 


(B)          The consent of the
Administrative Agent (such consent not to be unreasonably withheld or delayed)
shall be required for assignments in respect of a Facility if such assignment
is to a Person that is not a Lender with a Commitment in respect of such
Facility.


 


(C)          The consent of the
Letter of Credit Issuer (such consent not to be unreasonably withheld or
delayed) shall be required for any assignment that increases the obligation of
the assignee to participate in exposure under one or more Letters of Credit
(whether or not then outstanding).


 


(iv)          Assignment and Assumption.  The parties to each assignment shall execute
and deliver to the Administrative Agent an Assignment and Assumption, together
with a processing and recordation fee of $3,500, and the assignee, if it is not
a Lender, shall deliver to the Administrative Agent an Administrative
Questionnaire.


 


(v)           No Assignment to Borrower.  No such
assignment shall be made to the Borrower or any of the Borrower’s Affiliates.


 


(vi)          No Assignment to Natural Persons.  No such assignment shall be made to a natural
person.


 


Subject to acceptance and recording thereof by the Administrative Agent
pursuant to paragraph (c) of this Section, from and after the effective
date specified in each Assignment and Assumption, the assignee thereunder shall
be a party to this Agreement and, to the extent of the interest assigned by
such Assignment and Assumption, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Assumption, be released from
its obligations under this Agreement (and, in the case of an Assignment and
Assumption covering all of the assigning Lender’s rights and obligations under
this Agreement, such Lender shall cease to be a party hereto) but shall
continue to be entitled to the benefits of Sections 2.18(a) and 9.6 with respect to facts and circumstances occurring prior to the
effective date of such assignment.  Any
assignment or transfer by a Lender of rights or obligations under this
Agreement that does not comply with this paragraph shall be treated for
purposes of this Agreement as a sale by


 


75
















 


such
Lender of a participation in such rights and obligations in accordance with
paragraph (d) of this Section.


 


(c)           Register.  The Borrower hereby designates the
Administrative Agent to serve as the Borrower’s agent, solely for purposes of
this Section 9.3(c), to maintain a
register (the “Register”) on which it will
record the Commitments from time to time of each of the Lenders, the Loans made
by each of the Lenders and each repayment in respect of the principal amount of
the Loans of each Lender.  Failure to
make any such recordation, or any error in such recordation, shall not affect
the Borrower’s obligations in respect of such Loans.  With respect to any Lender, the transfer of
any Commitment of such Lender and the rights to the principal of, and interest
on, any Loan shall not be effective until such transfer is recorded on the
Register maintained by the Administrative Agent with respect to ownership of
such Commitment and Loans and prior to such recordation all amounts owing to
the transferor with respect to such Commitment and Loans shall remain owing to
the transferor.  The registration of
assignment or transfer of all or part of any Commitment or Loan shall be
recorded by the Administrative Agent on the Register only upon the acceptance
by the Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 9.3(b).  Coincident with the delivery of such an
Assignment and Assumption Agreement to the Administrative Agent for acceptance
and registration of assignment or transfer of all or part of a Loan, or as soon
thereafter as practicable, the assigning or transferor Lender shall surrender
the Note (if any) evidencing such Commitment, and thereupon one or more new
Notes in the same aggregate principal amount shall be issued to the assigning
or transferor Lender and/or the new Lender at the request of any such Lender.
The Borrower agrees to indemnify the Administrative Agent from and against any
and all losses, claims, damages and liabilities of whatsoever nature which may
be imposed on, asserted against or incurred by the Administrative Agent in
performing its duties under this Section 9.3(c),
except as may result or arise from the Administrative Agent’s own gross
negligence or willful misconduct.


 


(d)           Participations.  Any Lender may at any time sell
participations to any Person (other than a natural person or the Borrower or
any of the Borrower’s Affiliates or Subsidiaries) (each, a “Participant”)
in all or a portion of such Lender’s rights and/or obligations under the
Revolving Credit Facility (including all or a portion of its Commitment and/or
the Loans owing to it thereunder); provided that (i) such Lender’s
obligations under the Revolving Credit Facility shall remain unchanged; (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations; and (iii) the Borrower, the
Administrative Agent, the Lenders and the Letter of Credit Issuer shall
continue to deal solely and directly with such Lender in connection with such
Lender’s rights and obligations under the Revolving Credit Facility; and
provided, further, that the consent of the Borrower (such consent not to be
unreasonably withheld or delayed) shall be required unless (A) a Default
or Event of Default has occurred and is continuing at the time of such
assignment; or (B) such Participant is a Lender or an Affiliate of a
Lender, and the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for participations if such
Participant is not a Lender with a Commitment in respect of the Revolving
Credit Facility.  Any agreement or
instrument pursuant to which a Lender sells such a 


 


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participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any  provision of this Agreement; provided that
such agreement or instrument may provide that such Lender will not, without the
consent of the Participant, agree to any amendment, modification or waiver that
would (i) forgive any indebtedness of the Borrower under the Revolving
Credit Facility or the Revolving Credit Facility Note; (ii) agree to
reduce the rate of interest charged under this Agreement; or (iii) agree
to extend the final maturity of any indebtedness evidenced by the Revolving
Credit Facility Note, except as expressly provided by the terms of the Loan
Documents, in each case to the extent that such amendment, modification or
waiver would affect such Participant. 
Subject to paragraph (e) of this Section, the Borrower agrees that
each Participant shall be entitled to the benefits of Sections 2.18 and 2.19
to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section.  To the extent permitted by law, each
Participant also shall be entitled to the benefits of Section 7.3 as though it were a Lender, provided such
Participant agrees to be subject to Section 9.4 as though it were a Lender.


 


(e)           Limitations
upon Participant Rights.  A
Participant shall not be entitled to receive any greater payment under Sections
2.18 and 2.19
than the applicable Lender would have been entitled to receive with respect to
the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower’s prior written
consent.  A Participant that would be a
Foreign Lender if it were a Lender shall not be entitled to the benefits of Section 2.19 unless the Borrower is notified of the
participation sold to such Participant and such Participant agrees, for the
benefit of the Borrower, to comply with Section 2.19(e) as though it were a Lender.


 


(f)            Certain
Pledges.  Any Lender may at
any time pledge or assign a Lien in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including any pledge or
assignment to secure obligations 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.


 


(g)           Certain Rights
of Farm Credit Lender Participants. 
Notwithstanding anything in this Section 9.3 to the contrary, any Farm Credit Lender that (i) is the
owner of a participation in a Commitment (including Loans outstanding
thereunder) initially in the amount of at least $5,000,000; (ii) is, by
written notice to the Borrower and the Administrative Agent (a “Voting Participant Notification”), designated by the
selling Lender as being entitled to be accorded the rights of a voting
participant hereunder (any Farm Credit Lender so designated being called a “Voting Participant”); and (iii) receives the prior
written consent of the Borrower (unless an Event of Default has occurred and is
continuing) and the Administrative Agent to become a Voting Participant, shall
be entitled to vote for so long as such Farm Credit Lender owns such
participation and notwithstanding any subparticipation by such Farm Credit
Lender (and the voting rights of the selling Lender shall be correspondingly
reduced), on a dollar for dollar basis, as if such Participant were a Lender,
on any matter requiring or allowing a Lender to provide or withhold its
consent, or to otherwise vote on any proposed action.


 


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Notwithstanding
the foregoing, each Farm Credit Lender designated as a Voting Participant in Exhibit O hereto shall be a Voting Participant without
delivery of a Voting Participant Notification and without the prior written
consent of the Borrower and the Administrative Agent.  To be effective, each Voting Participant
Notification shall, with respect to any Voting Participant, (A) state the
full name, as well as all contact information required for an assignee in the
Assignment and Assumption; and (B) state the dollar amount of the
participation purchased.  The selling
Lender and the Voting Participant shall notify the Administrative Agent and the
Borrower within three (3) Business Days of any termination of, reduction
or increase in the amount of, such participation.  The Borrower and the Administrative Agent
shall be entitled to conclusively rely on information contained in notices delivered
pursuant to this subsection (g).  The
voting rights hereunder are solely for the benefit of the Voting Participants
and shall not inure to any assignee or participant of a Voting Participant.


 


Section 9.4            Sharing of Payments by Lenders.  If any Lender shall, by exercising any right
of setoff or counterclaim or otherwise, obtain payment in respect of any
principal of or interest on any of its Loans or other obligations hereunder
resulting in such Lender’s receiving payment of a proportion of the aggregate
amount of its Loans and accrued interest thereon or other such obligations
greater than its pro rata share thereof as provided herein, then the Lender
receiving such greater proportion shall (a) notify the Administrative
Agent of such fact; and (b) purchase (for cash at face value)
participations in the Loans and such other obligations of the other Lenders, or
make such other adjustments as shall be equitable, so that the benefit of all
such payments shall be shared by the Lenders ratably in accordance with the
aggregate amount of principal of and accrued interest on their respective Loans
and other amounts owing them, provided that:


 


(i)            if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and
the purchase price restored to the extent of such recovery, without interest;
and


 


(ii)           the
provisions of this paragraph shall not be construed to apply to (A) any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement; or (B) any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans or participations in Letter of Credit Exposure to any assignee or
participant, other than to the Borrower or any Subsidiary thereof (as to which
the provisions of this paragraph shall apply).


 


The
Borrower consents to the foregoing and agrees, to the extent it may effectively
do so under applicable law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against each Obligor rights of
setoff and counterclaim with respect to such participation as fully as if such
Lender were a direct creditor of each Obligor in the amount of such
participation.


 


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Section 9.5            Notices; Distribution of Information
Via Electronic Means.


 


(a)           Use of Platform to Distribute Communications.  The Administrative Agent may make any
material delivered by the Borrower to the Administrative Agent, as well as any
amendments, waivers, consents, and other written information, documents,
instruments and other materials relating to the Borrower, or any of its
Subsidiaries, or any other materials or matters relating to any Loan Documents,
or any of the transactions contemplated hereby or thereby (collectively, the “Communications”) available to the Lender Parties by posting
such notices on an electronic delivery system such as IntraLinks or a
substantially similar electronic system (the “Platform”).  The Borrower acknowledges that (i) the
distribution of material through an electronic medium is not necessarily secure
and that there are confidentiality and other risks associated with such
distribution; (ii) the Platform is provided “as is” and “as available”;
and (iii) neither the Administrative Agent nor any of its Affiliates
warrants the accuracy, completeness, timeliness, sufficiency, or sequencing of
the Communications posted on the Platform. The Administrative Agent and its
Affiliates expressly disclaim with respect to the Platform any liability for
errors in transmission, incorrect or incomplete downloading, delays in posting
or delivery, or problems accessing the Communications posted on the Platform
and any liability for any losses, costs, expenses or liabilities that may be
suffered or incurred in connection with the Platform.  No warranty of any kind, express, implied or
statutory, including any warranty of merchantability, fitness for a particular
purpose, non-infringement of third party rights or freedom from viruses or
other code defects, is made by the Administrative Agent or any of its
Affiliates in connection with the Platform.


 


(b)           Notice by Electronic Means.  Each Lender agrees (i) on or before the
date it becomes a party to this Agreement, to notify the Administrative Agent
in writing of the e-mail address(es) to which a notice under this Agreement (a “Notice”) may be sent to it and from time to time thereafter
to ensure that the Administrative Agent has on record an effective e-mail
address for it; and (ii) that any Notice may be sent to such e-mail
address(es).  Each Lender agrees that an
e-mail message notice to it (as provided in the previous sentence) specifying
that any Communication has been posted to the Platform shall for purposes of
this Agreement constitute effective delivery to such Lender of such
information, documents or other materials comprising such Communication.


 


(c)           Notices By Other Means.  Except as otherwise expressly provided
herein, all notices, requests, demands and other communications provided for
under the Loan Documents shall be in writing (including facsimile transmission
or e-mail) and shall be sent to the applicable party at its address, e-mail
address or facsimile number set forth on Exhibit A or on any Administrative Questionnaire, or as to each party, at
such other address, e-mail address or facsimile number as shall be designated
by such party in a written notice to the other party complying as to delivery
with the terms of this Section 9.5.  All such notices, requests, demands and other
communications shall be effective (i) when received, if sent by facsimile,
e-mail, hand delivery or overnight courier; or (ii) three Business Days
after the date when sent by registered or certified mail, postage prepaid;
provided, however, that notices or requests to any Lender Party pursuant to any
of the provisions of Article II
shall not be effective until received by such Lender Party.  Notwithstanding the foregoing, no notices to
the Borrower contemplated by Sections 7.1
or 7.2 will be effective if delivered
solely by e-mail.


 


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Section 9.6           Expenses; Indemnity; Damage Waiver.


 


(a)           Costs and
Expenses.  The Borrower shall
pay (i) all reasonable out-of-pocket expenses incurred by the
Administrative Agent and its Affiliates (including the reasonable fees, charges
and disbursements of counsel for the Administrative Agent and specifically
including allocated costs of in house counsel), in connection with the
syndication of the credit facility provided for herein and the preparation,
negotiation, execution, delivery and administration of this Agreement and the
other Loan Documents or any amendments, modifications or waivers of the
provisions hereof or thereof (whether or not the transactions contemplated
hereby or thereby shall be consummated); (ii) all out-of-pocket expenses
incurred by the Administrative Agent or any Lender after the occurrence and
during the continuance of an Event of Default in connection with any audits or
inspections of any Collateral or the operations or business of any Obligor; and
(iii) all out-of-pocket expenses incurred by the Administrative Agent or
any Lender (including the fees, charges and disbursements of any counsel for
the Administrative Agent or any Lender and specifically including allocated
costs of in house counsel) in connection with the enforcement or protection of
its rights (A) in connection with this Agreement and the other Loan
Documents, including its rights under this Section 9.6; or (B) in connection with the Obligations, including all
such out-of-pocket expenses incurred during any workout, restructuring or
negotiations in respect of the Obligations.


 


(b)           Indemnification
by the Borrower.  The Borrower
shall indemnify each Lender Party and each Affiliate of any Lender Party (each
such Person being called an “Indemnitee”)
against, and hold each Indemnitee harmless from, any and all losses, claims,
damages, liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee and specifically including
allocated costs of in house counsel) incurred by any Indemnitee or asserted
against any Indemnitee by any third party or Obligor arising out of, in
connection with, or as a result of (i) the execution or delivery of this
Agreement, any other Loan Document or any agreement or instrument contemplated
hereby or thereby, the performance by the parties hereto of their respective
obligations hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby; (ii) the Loans or the use or proposed use
of the proceeds therefrom; (iii) any actual or alleged presence or release
of Hazardous Substances on or from any property owned or operated by any
Obligor or its Subsidiaries, or any liability arising from any alleged breach
of Environmental Laws related in any way to any Obligor or its Subsidiaries; or
(iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or
any other theory, whether brought by a third party or by any Obligor, and
regardless of whether any Indemnitee is a party thereto, provided that such
indemnity shall not, as to any Indemnitee, be available to the extent that such
losses, claims, damages, liabilities or related expenses (A) are
determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from the gross negligence or willful misconduct of
such Indemnitee; or (B) result from a claim brought by any Obligor against
an Indemnitee for breach of such Indemnitee’s obligations hereunder or under
any other Loan Document, if such Obligor has obtained a final and nonappealable
judgment in its favor on such claim as determined by a court of competent
jurisdiction.


 


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(c)           Reimbursement
by Lenders.  To the extent
that the Borrower for any reason fails to indefeasibly pay any amount required
under paragraph (a) or (b) of this Section 9.6 to be paid by it to the Administrative
Agent (or any sub-agent thereof), or any Affiliate of any of the foregoing,
each Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent) or such Affiliate, as the case may be, such Lender’s Percentage (determined
as of the time that the applicable unreimbursed expense or indemnity payment is
sought) of such unpaid amount, provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the case may
be, was incurred by or asserted against the Administrative Agent (or any such
sub-agent) in its capacity as such, or against any Affiliate of any of the
foregoing acting for the Administrative Agent (or any such sub-agent) in
connection with such capacity.  The
obligations of the Lenders under this paragraph (c) are subject to
the provisions of Section 8.10.


 


(d)           Waiver of
Consequential Damages, Etc.  To the fullest extent permitted by applicable
law, neither the Borrower (as one party) nor the Administrative Agent and any
Lender (collectively as one party) shall assert, and each party hereby waives,
any claim against the other party, on any theory of liability, for special,
indirect, consequential or punitive damages (as opposed to direct or actual
damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, the Loans or the use of the
proceeds thereof.  No party shall be
liable for any damages arising from the use by unintended recipients of any
information or other materials distributed by it through telecommunications,
electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby
or thereby.


 


(e)           Payments.  All amounts due under this Section 9.6 shall be payable promptly after demand
therefor.


 


(f)            Survival.  The agreements in this Section 9.6 shall survive the resignation of the
Administrative Agent, the replacement of any Lender, the termination in full of
all of the Commitments and the payment, satisfaction or discharge in full of
all the other Obligations.


 


Section 9.7           Replacement of Non-Consenting
Lender.  If any Lender (a “Non-Consenting Lender”) (i) demands compensation
pursuant to Section 2.18, (ii) suspends its obligation to make,
maintain or fund either LIBOR Loans or Quoted Rate Loans pursuant to Section 2.20,
or (iii) refuses to consent to an amendment to, or waiver of, any Loan Document
or provision thereof, which amendment or waiver requires unanimous consent of
all the Lenders, or all the Lenders with a Commitment for a particular
Facility, in order to be effective; then the Administrative Agent may or the
Borrower may (but neither shall be obligated to), upon notice to the
Non-Consenting Lender (and the Administrative Agent, if applicable), require
the Non-Consenting Lender to assign and delegate, without recourse (in
accordance with and subject to the restrictions contained in Section 9.3) all of
its interests, rights, duties and obligations under this Agreement and the Loan
Documents to an Eligible Lender that shall assume such obligations (which
assignee may be a Lender, if a Lender accepts such assignment); provided that:


 


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(a)           if it is an assignment at the request
of the Borrower, the Borrower shall have received the prior written consent of
the Administrative Agent (and, if applicable, the Letter of Credit Issuer),
which consent shall not unreasonably be withheld,


 


(b)           if it is an assignment at the request
of the Administrative Agent and there is no Event of Default, the Borrower
shall have consented to such assignment (and, if applicable, the Letter of
Credit Issuer) which consents shall not be unreasonably withheld,


 


(c)           the interests, rights, duties and
obligations of all Non-Consenting Lenders are similarly assigned to Eligible
Lenders, and


 


(d)           the Non-Consenting Lender shall have
received payment of an amount equal to the outstanding principal of its Loans,
and participations in unreimbursed Letter of Credit Exposure, if any, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder
and under the other Loan Documents, from the Eligible Lender (to the extent of
such outstanding principal, accrued interest and accrued fees) or the Borrower
(in the case of all other amounts).


 


Section 9.8           Disclosure of Information.  Each Lender Party shall keep confidential
(and cause its officers, Directors, employees, agents and representatives to
keep confidential) all information, materials and documents furnished by any
Obligor or any other Lender Party (the “Disclosed
Information”). 
Notwithstanding the foregoing, any Lender Party may disclose Disclosed Information (a) to
any other Lender Party or any Affiliate of any Lender Party; (b) to legal
counsel, accountants and other professional advisors to such Lender Party; (c) to
any regulatory body having jurisdiction over such Lender Party; (d) to the
extent required by applicable laws and regulations or by any subpoena or
similar legal process, or requested by any governmental agency or authority; (e) to
the extent such Disclosed Information (i) becomes publicly available other
than as a result of a breach of this Agreement; (ii) becomes available to
such Lender Party on a non-confidential basis from a source other than an
Obligor or a Subsidiary; or (iii) was available to such Lender Party on a
non-confidential basis prior to its disclosure to such Lender Party by an
Obligor or a Subsidiary; or (f) to the extent (A)  the Obligor or any
Subsidiary shall have consented to such disclosure in writing; (B) 
reasonably deemed necessary by any Lender Party in the enforcement of the
remedies of the Lender Parties provided under the Loan Documents; or (C) necessary in
connection with any potential assignment or participation in the interest
granted hereunder, provided that any such potential assignee or participant
shall have executed a confidentiality agreement imposing on such potential
assignee or participant substantially the same obligations as are imposed on
the Lender Parties under this Section 9.8.


 


Section 9.9           Governing Law;
Jurisdiction; Waiver of Jury Trial.


 


(a)           Governing Law. 
The Loan Documents shall be governed by, and construed in accordance
with, the laws of the State of Colorado (other than its conflicts of laws
rules), except to the extent the law of any other jurisdiction applies as to
the perfection or enforcement of the Lender Parties’ Lien in any Collateral and
except to the extent expressly provided to the contrary in any Loan Document.


 


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(b)           Jurisdiction. 
The parties hereby irrevocably agree that any dispute arising under or
in any way relating to this Agreement or any of the other Loan Documents shall
be litigated solely and exclusively in a state or federal court sitting in
Denver, Colorado and in no other.  The
Borrower hereby agrees that if it attempts to commence any action regarding a
dispute arising under or in any way relating to this Agreement or any of the
other Loan Documents in any court other than a state or federal court sitting
in Denver, Colorado, the Administrative Agent or any Lender Party (at its sole
and exclusive option) may obtain an immediate order dismissing such action for
improper venue or an order transferring venue to a state or federal court
sitting in Denver, Colorado.  The
Borrower hereby irrevocably submits to the personal jurisdiction of any state
or federal court sitting in Denver, Colorado in any action or proceeding
arising out of or in any way relating to this Agreement or any of the other
Loan Documents and waives any defense of forum non conveniens.  The Borrower irrevocably consents to the
service of copies of the summons and complaint and any other process which may
be served in any such action or proceeding by the mailing of copies of such
process to the Borrower, certified mail, return receipt requested, at its
addresses specified Section 9.5
above.  The Borrower agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law.


 


(c)           WAIVER OF JURY TRIAL.  THE BORROWER AND THE
LENDER PARTIES HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY LOAN
DOCUMENT OR ANY INSTRUMENT OR DOCUMENT DELIVERED THEREUNDER.


 


Section 9.10        Integration; Inconsistency.  This Agreement, together with the Loan
Documents, comprise the final and complete integration of all prior expressions
by the parties hereto with respect to the subject matter hereof and shall
constitute the entire agreement among the parties hereto with respect to such
subject matter, superseding all prior oral or written understandings.  If any provision of a Loan Document is
inconsistent with or conflicts with a comparable or similar provision appearing
in this Agreement, the comparable or similar provision in this Agreement shall
govern.


 


Section 9.11        Agreement Effectiveness.  This Agreement shall become effective upon
delivery of fully executed counterparts hereof to each of the parties hereto.


 


Section 9.12        Advice from Independent Counsel.  The parties hereto understand that this
Agreement is a legally binding agreement that may affect such party’s
rights.  Each party hereto represents to
the others that it has received legal advice from counsel of its choice
regarding the meaning and legal significance of this Agreement and that it is
satisfied with its legal counsel and the advice received from it.


 


Section 9.13        Judicial Interpretation.  Should any provision of this Agreement
require judicial interpretation, it is agreed that a court interpreting or
construing the same shall not apply a presumption that the terms hereof shall
be more strictly construed against any Person by reason of the rule of
construction that a document is to be construed more strictly against the 


 


83

















 


Person who itself through its agent prepared the same, it being agreed
that all parties hereto have participated in the preparation of this Agreement.


 


Section 9.14        Binding Effect; No Assignment by Borrower.  This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Lender Parties and their respective
successors and assigns; provided, however, that the Borrower may not assign any
or all of its rights or obligations hereunder or any of its interest herein
without the prior written consent of the Required Lenders.


 


Section 9.15        Severability of Provisions.  Any provision of this Agreement which is
prohibited or unenforceable shall be ineffective to the extent of such
prohibition or unenforceability without invalidating the remaining provisions
hereof.


 


Section 9.16        Headings. 
Article and Section headings in this Agreement are included
herein for convenience of reference only and shall not constitute a part of
this Agreement for any other purpose.


 


Section 9.17        Counterparts.  This Agreement and the other Loan Documents
may be executed in any number of counterparts, each of which when so executed
and delivered shall be deemed to be an original and all of which counterparts
of this Agreement or such other Loan Document, as the case may be, taken
together, shall constitute but one and the same instrument.


 


Section 9.18        Customer Identification — USA Patriot Act Notice.  The Administrative Agent hereby notifies the
Borrower that pursuant to the requirements of the USA Patriot Act (Title III of
Pub. L. 107-56, signed into law October 26, 2001) (the “Act”), and the Administrative Agent’s
policies and practices, each Lender is required to obtain, verify and record
certain information and documentation that identifies each Obligor, which
information includes the name and address of each Obligor and such other
information that will allow each Lender to identify each Obligor in accordance
with the Act.


 


Section 9.19        Borrower’s Acknowledgement and Agreement Regarding
Participations.  The Borrower
acknowledges and agrees that CoBank and the Farm Credit Lenders identified on Exhibit O (the “Initial
Farm Credit Participants”) have entered into certain Master
Non-Recourse Participation Agreements (as may be amended, replaced, restated or
supplemented from time to time, the “Participation
Agreements”), whereby a certain percentage of CoBank’s Commitment
and the Loans outstanding from time to time have been participated to the
Initial Farm Credit Participants according to the terms of the Participation
Agreements.  The Borrower and the
Administrative Agent hereby consent to the Initial Farm Credit Participants
becoming Voting Participants in accordance with Section 9.3(g), and acknowledge that the inclusion of
this Section 9.19 in this Agreement
constitutes receipt of the Voting Participant Notifications with respect to the
Initial Farm Credit Participants as required by Section 9.3(g).


 


Section 9.20        Farm Credit Lender Equities.  Each party hereto acknowledges that each
Lender that is a Farm Credit Lender has a statutory first lien on all of the
Obligors’ Capital Stock in such Farm Credit Lender (the “Farm Credit Lender Equities”) pursuant to
12 


 


84

















 


U.S.C. §2131. Accordingly, and notwithstanding any other provision of this
Agreement or any other Loan Document to the contrary: (a) the statutory
lien of each Lender that is a Farm Credit Lender pursuant to 12 U.S.C. §2131 on
the Farm Credit Lender Equities of such Lender shall be for the sole and
exclusive benefit of such Lender, and such Farm Credit Lender Equities (or the
proceeds thereof) shall not be subject to pro rata sharing with any other
Lender hereunder or under the other Loan Documents; (b) no Lender that is
a Farm Credit Lender shall have an obligation to retire the Farm Credit Lender
Equities of such Lender upon the occurrence and during the continuance of an
Event of Default or at any other time, either for application to the
Obligations or otherwise; and (c) no Farm Credit Lender Equities of a
Lender that is a Farm Credit Lender shall be offset against the Obligations
owing to such Lender or otherwise taken into consideration for purposes of
determining such Lender’s pro rata share of any interest hereunder.


 


Section 9.21        Patronage Distributions.  Notwithstanding any other provision in this
Agreement or any other Loan Document to the contrary, (a) all Obligations
owing to a Lender that is a Farm Credit Lender that are retained by such Lender
for its own account and are not part of a sale of a participation interest or
the assignment of any rights or obligations under the Loan Documents shall be
entitled to patronage distributions in accordance with the bylaws of such
Lender and its practices and procedures related to patronage distributions; and
(b) any Obligations owing to a Lender that is a Farm Credit Lender that
are not retained by such Farm Credit Lender for its own account and are part of
a sale of a participation interest or the assignment of any rights or
obligations under the Loan Documents shall not be entitled to any such
patronage distributions.


 


Section 9.22        CoBank Bylaws and Capital Plan.  The Borrower acknowledges receipt of a copy
of CoBank’s bylaws and capital plan, which describe the nature of CoBank
equities and capitalization requirements. The Borrower agrees to comply with
the requirements of CoBank’s bylaws and capital plan, as the same may be
amended from time to time, including without limitation, provisions thereof
applicable to patronage distributions. Each of the Borrower and CoBank represent
to the other parties to this Agreement that the Borrower’s obligations under
the terms of CoBank’s bylaws and capitalization plan do not conflict with the
Borrower’s obligations under this Agreement or any other Loan Document, except
as specifically provided in Section 9.20
and 9.21; provided, however, in the event
such conflict is determined to exist, then to the extent of such conflict the
terms of this Agreement and the other Loan Documents shall govern and be
controlling.


 


Section 9.23        Release. 
The Borrower, by its signature to this Agreement, hereby absolutely and
unconditionally releases and forever discharges the Administrative Agent and
the Lenders, and any and all participants, parent corporations, subsidiary
corporations, affiliated corporations, insurers, indemnitors, successors and
assigns thereof, together with all of the present and former Directors,
officers, agents and employees of any of the foregoing, from any and all
claims, demands or causes of action of any kind, nature or description, whether
arising in law or equity or upon contract or tort or under any state or federal
law or otherwise, which the Borrower has had, now has or has made claim to have
against any such Person for or by reason of any act, omission, matter, cause or
thing whatsoever occurring or arising prior to the date of this Agreement,
whether such claims, demands and causes of action are matured or unmatured or
known or unknown.


 


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Section 9.24        Prior Agreements.  Upon satisfaction of the conditions precedent
set forth in Section 3.1 hereof, the Prior Credit Agreement shall be and hereby
is amended, superseded and restated in its entirety by the terms and provisions
of this Agreement.  This Agreement shall
not constitute a novation of the Prior Credit Agreement or the indebtedness
created thereunder.  The Borrower shall
have the obligation to pay any fees and interest under the Prior Credit
Agreement accruing through the effective date of this Agreement.


 


Signature Pages Follow


 


86

















 


IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized, as of the date
first above written.


 


	
   

  	
  AMERICAN
  CRYSTAL SUGAR COMPANY, as Borrower

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Samuel S.M. Wai

  
	
   

  	
   

  	
  Name:

  	
  Samuel S.M. Wai

  
	
   

  	
   

  	
  Title:

  	
  Treasurer

  



 


Signature
Page to Amended and Restated Credit Agreement


 

















 


	
   

  	
  COBANK, ACB,

  
	
   

  	
  as
  Administrative Agent, Lead Arranger, Lender and Letter of Credit Issuer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael Tousignant

  
	
   

  	
   

  	
  Name:

  	
  Michael Tousignant

  
	
   

  	
   

  	
  Title:

  	
  Vice President

  



 


Signature
Page to Amended and Restated Credit Agreement


 

















 


	
   

  	
  WELLS FARGO BANK, NATIONAL ASSOCIATION, as
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Edward L. Cooper III

  
	
   

  	
   

  	
  Name:

  	
  Edward L. Cooper III

  
	
   

  	
   

  	
  Title:

  	
  Senior Vice President

  



 


Signature
Page to Amended and Restated Credit Agreement


 

















 


	
   

  	
  THE BANK OF TOKYO-MITSUBISHI UFJ, LTD., as
  Lender

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Victor Pierzchalski

  
	
   

  	
   

  	
  Name:

  	
  Victor Pierzchalski

  
	
   

  	
   

  	
  Title:

  	
  Authorized Signatory

  



 


Signature
Page to Amended and Restated Credit Agreement


 

















 


EXHIBITS
AND SCHEDULES


 


	
  Exhibit
  A

  	
  Commitments and Addresses

  
	
   

  	
   

  
	
  Exhibit
  B

  	
  Borrowing Base Certificate

  
	
   

  	
   

  
	
  Exhibit
  C

  	
  Pricing Grid

  
	
   

  	
   

  
	
  Exhibit
  D

  	
  Revolving Credit Facility Note

  
	
   

  	
   

  
	
  Exhibit
  E

  	
  Revolving Term Loan T01 Note

  
	
   

  	
   

  
	
  Exhibit
  F

  	
  Revolving Term Loan T06 Note

  
	
   

  	
   

  
	
  Exhibit
  G

  	
  Revolving Letter of Credit Note

  
	
   

  	
   

  
	
  Exhibit
  H

  	
  Borrowing Request

  
	
   

  	
   

  
	
  Exhibit
  I

  	
  Notice of Conversion to LIBO Rate

  
	
   

  	
   

  
	
  Exhibit
  J

  	
  Notice of Conversion to Quoted Rate

  
	
   

  	
   

  
	
  Exhibit
  K

  	
  Notice of Rollover of LIBO Rate

  
	
   

  	
   

  
	
  Exhibit
  L

  	
  Notice of Rollover of Quoted Rate

  
	
   

  	
   

  
	
  Exhibit
  M

  	
  Certificate of Officer as to Financial Statements

  
	
   

  	
   

  
	
  Exhibit
  N

  	
  Assignment and Assumption

  
	
   

  	
   

  
	
  Exhibit
  O

  	
  Initial Farm Credit Participants and Voting Participants

  
	
   

  	
   

  
	
  Schedule
  4.1

  	
  Doing Business Names; Business Locations

  
	
   

  	
   

  
	
  Schedule
  4.4

  	
  Capitalization; Organization Chart

  
	
   

  	
   

  
	
  Schedule
  4.7

  	
  Litigation

  
	
   

  	
   

  
	
  Schedule
  4.11

  	
  Plans

  
	
   

  	
   

  
	
  Schedule
  4.12

  	
  Environmental Compliance

  
	
   

  	
   

  
	
  Schedule
  4.18

  	
  Licenses, Compliance with Laws, Other Agreements

  
	
   

  	
   

  
	
  Schedule
  6.1

  	
  Outstanding Liens

  
	
   

  	
   

  
	
  Schedule 6.2

  	
  Outstanding Indebtedness

  



 

















 


	
  Schedule
  6.3

  	
  Outstanding Guaranties

  
	
   

  	
   

  
	
  Schedule
  6.4

  	
  Additional Investments

  



 
















Exhibit A


 


COMMITMENTS AND ADDRESSES


 


	
  Name

  	
   

  	
  Commitment Amounts

  	
   

  	
  Notice Address

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CoBank, ACB, as Administrative Agent

  	
   

  	
  N/A

  	
   

  	
  5500
  South Quebec Street

  Greenwood Village, CO 80111

  Attention: Jacquie Fredericks

  Phone: (303) 694-5833

  Facsimile: (303) 796-1456

  E-mail: jfreder@cobank.com

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  CoBank, ACB, as a Lender

  	
   

  	
  Revolving
  Credit Facility Commitment: $242,000,000

  Revolving Term Loan T01 Commitment: $48,707,402

  Revolving Term Loan T06 Commitment: $65,000,000

  Revolving Letter of Credit Commitment: $60,849,199.99

  	
   

  	
  5500
  South Quebec Street

  Greenwood Village, CO 80111

  Attention: Jacquie Fredericks

  Phone: (303) 694-5833

  Facsimile: (303) 796-1456

  E-mail: jfreder@cobank.com

  



 


A-1

















 


	
  The Bank of Tokyo-Mitsubishi UFJ, Ltd.

  	
   

  	
  Revolving
  Credit Facility Commitment: $28,000,000

  Revolving Term Loan T01 Commitment: $0

  Revolving Term Loan T06 Commitment: $0

  Revolving Letter of Credit Commitment: $0

  	
   

  	
  1251
  Avenue of the Americas

  New York, NY 10020-1104

  Attention: Portfolio Management Group

  Phone: (212) 782-4206

  Facsimile: (212) 782-6440

  

  With a copy to:

  Attention: Scott Ackerman, VP

  601 Carlson Parkway, Suite 370

  Minnetonka, MN 55305

  Phone: (952) 473-7894

  Facsimile: (952) 473-5152

  E-mail: sackerman@us.mufg.jp

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Wells Fargo Bank, National Association

  	
   

  	
  Revolving
  Credit Facility Commitment: $50,000,000

  Revolving Term Loan T01 Commitment: $0

  Revolving Term Loan T06 Commitment: $0

  Revolving Letter of Credit Commitment: $0

  	
   

  	
  1740
  Broadway

  Denver, CO 80274

  Attention: Edward Cooper III

  Phone: (312) 845-9747

  Facsimile: (312) 845-4462

  Email: ed.cooper3@wellsfargo.com

  



 


A-2

















 


Exhibit B


 


BORROWING BASE CERTIFICATE


 


Date:                        


 


CoBank,
ACB


5500
South Quebec Street


Greenwood
Village, CO 80111


Attention:
Michael Tousignant


 


Re:          Amended and
Restated Credit Agreement dated as of July 30, 2009 by and among American
Crystal Sugar Company, as borrower, the Lenders from time to time party
thereto, and CoBank, ACB, as administrative agent


 


In
accordance with the above referenced agreement (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit
Agreement”), set forth below is the calculation of the Borrowing
Base.


 


All
capitalized terms used in this Certificate have the meanings given in the
Credit Agreement.  All language used in
this certificate is summary language, the exact language and meanings have the
meanings given in the Credit Agreement.


 


	
  A.
  ELIGIBLE ACCOUNTS

  	
   

  	
   

  
	
  1.

  	
   

  	
  Total
  Accounts as of                          
  .

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Ineligible
  Accounts:

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (a)

  	
  Accounts
  over 90 days past due;

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  (b)

  	
  Accounts
  that are ineligible in accordance with subsections (b) through
  (i) of the definition of Eligible Accounts

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [List
  all material ineligible Accounts]

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Total
  Ineligible Accounts (sum of lines 2(a) and (b)).

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  TOTAL
  ELIGIBLE ACCOUNTS (Line 1 minus Line 3)

  	
   

  	
  $

  



 


	
  B.
  ELIGIBLE NET INVENTORY:

  	
   

  	
   

  
	
  1.

  	
   

  	
  Total
  Net Inventory as
  of                   .

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Net
  Inventory that is ineligible in accordance with subsections (a) through
  (e) of the definition of Eligible Net Inventory:

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  [List
  all material ineligible Net Inventory]

  	
   

  	
   

  
						



 


B-1

















 


	
  3.

  	
   

  	
  TOTAL
  ELIGIBLE NET INVENTORY (Line 1 minus Line 2)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  C.
  AGGREGATE SHORT-TERM LOAN AMOUNT:

  	
   

  	
   

  
	
  1.

  	
   

  	
  Revolving
  Credit Facility Outstanding Amount

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Principal
  amount outstanding of all Commodity Credit Corporation Loans

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Principal
  amount outstanding of all commercial paper issued by all Obligors

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  AGGREGATE
  SHORT-TERM LOAN AMOUNT

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  D.
  BORROWING BASE:

  	
   

  	
   

  
	
  1.

  	
   

  	
  80%
  of Total Eligible Accounts

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  75%
  of Total Eligible Net Inventory

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  (Line
  1 + Line 2)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Aggregate
  Short-Term Loan Amount (Line C4)

  	
   

  	
  $

  
	
   

  	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Unused
  Availability (Line D3 minus Line D4)

  	
   

  	
  $

  
						



 


The
Borrower hereby represents and warrants that this Borrowing Base Certificate is
a true and correct statement regarding the status of matters set forth
therein.  The Borrower hereby further
represents and warrants that no Default or Event of Default has occurred and is
continuing, except as disclosed in the accompanying letter.  In addition, the Borrower hereby acknowledges
that any Revolving Credit Facility Advances made to the Borrower under the
Credit Agreement will be based upon the Administrative Agent’s reliance on the
information contained herein.


 


	
   

  	
  AMERICAN
  CRYSTAL SUGAR COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


B-2

















 


Exhibit C


 


PRICING GRID


 


	
  Level Status

  	
   

  	
  Capitalization Ratio

  	
   

  	
  Base Rate

  Margin

  	
   

  	
  LIBOR

  Margin

  	
   

  	
  Unused Commitment Fee

  	
   

  
	
  I

  	
   

  	
  <
  40%

  	
   

  	
  1.00

  	
  %

  	
  2.00

  	
  %

  	
  0.375

  	
  %

  
	
  II

  	
   

  	
  > 40% < 50%

  	
   

  	
  1.25

  	
  %

  	
  2.25

  	
  %

  	
  0.375

  	
  %

  
	
  III

  	
   

  	
  > 50%

  	
   

  	
  1.75

  	
  %

  	
  2.75

  	
  %

  	
  0.50

  	
  %

  



 


C-1

















 


Exhibit D


 


REVOLVING CREDIT FACILITY NOTE


 


	
  $                         

  	
    , 20    

  
	
   

  	
  Denver, Colorado

  



 


For
value received, AMERICAN CRYSTAL SUGAR COMPANY, a cooperative association formed
under the laws of the State of Minnesota (the “Borrower”),
promises to pay to the order of                           ,
a                                                   
(the “Lender”), at such place as the
Administrative Agent under the Credit Agreement defined below may from time to
time designate in writing, in lawful money of the United States of America and
in immediately available funds, the principal sum of                                                   
Dollars  ($              ),
or, if less, the aggregate unpaid principal amount of all Revolving Credit
Facility Advances (as defined in the Credit Agreement) made by the Lender to
the Borrower under the Amended and Restated Credit Agreement dated as of July 30,
2009  by and among the Borrower, the Lender,
certain other Lenders from time to time party thereto and CoBank, ACB, as
administrative agent (as amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”),
together with interest on the unpaid principal balance hereof at such interest
rates and payable at such times as are specified in the Credit Agreement.


 


This
Note is a Revolving Credit Facility Note as defined in the Credit Agreement,
and is issued subject and pursuant to the Credit Agreement, which, among other
things, provides for the amount and date of payments of principal and interest
required hereunder, acceleration of the maturity hereof upon the occurrence of
an Event of Default (as defined in the Credit Agreement), and prepayment hereof
upon the occurrence of certain events.


 


The Borrower shall pay all costs of
collection, including reasonable attorneys’ fees and legal expenses, if this
Note is not paid when due, whether or not legal proceedings are commenced.


 


Presentment
or other demand for payment, notice of dishonor and protest are expressly
waived.


 


	
   

  	
  AMERICAN
  CRYSTAL SUGAR COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


D-1

















 


Exhibit E


 


REVOLVING TERM LOAN T01 NOTE


 


	
  $                         

  	
    , 20    

  
	
   

  	
  Denver, Colorado

  



 


For
value received, AMERICAN CRYSTAL SUGAR COMPANY, a cooperative association
formed under the laws of the State of Minnesota (the “Borrower”),
promises to pay to the order of                           ,
a                                                   
(the “Lender”), at such place as the
Administrative Agent under the Credit Agreement defined below may from time to
time designate in writing, in lawful money of the United States of America and
in immediately available funds, the principal sum of                                                   
Dollars  ($              ),
or, if less, the aggregate unpaid principal amount of all Revolving Term Loan
T01 Advances (as defined in the Credit Agreement) made by the Lender to the
Borrower under the Amended and Restated Credit Agreement dated as of July 30,
2009  by and among the Borrower, the Lender,
certain other Lenders from time to time party thereto and CoBank, ACB, as
administrative agent (as amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”),
together with interest on the unpaid principal balance hereof at such interest
rates and payable at such times as are specified in the Credit Agreement.


 


This
Note is a Revolving Term Loan T01 Note as defined in the Credit Agreement, and
is issued subject and pursuant to the Credit Agreement, which, among other
things, provides for the amount and date of payments of principal and interest
required hereunder, acceleration of the maturity hereof upon the occurrence of
an Event of Default (as defined in the Credit Agreement), and prepayment hereof
upon the occurrence of certain events.


 


The Borrower shall pay all costs of
collection, including reasonable attorneys’ fees and legal expenses, if this
Note is not paid when due, whether or not legal proceedings are commenced.


 


Presentment
or other demand for payment, notice of dishonor and protest are expressly
waived.


 


	
   

  	
  AMERICAN
  CRYSTAL SUGAR COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


E-1

















 


Exhibit F


 


REVOLVING TERM LOAN T06 NOTE


 


	
  $                         

  	
    , 20    

  
	
   

  	
  Denver, Colorado

  



 


For
value received, AMERICAN CRYSTAL SUGAR COMPANY, a cooperative association
formed under the laws of the State of Minnesota (the “Borrower”),
promises to pay to the order of                           ,
a                                                   
(the “Lender”), at such place as the
Administrative Agent under the Credit Agreement defined below may from time to
time designate in writing, in lawful money of the United States of America and
in immediately available funds, the principal sum of                                                   
Dollars  ($               ),
or, if less, the aggregate unpaid principal amount of all Revolving Term Loan
T06 Advances (as defined in the Credit Agreement) made by the Lender to the
Borrower under the Amended and Restated Credit Agreement dated as of July 30,
2009  by and among the Borrower, the Lender,
certain other Lenders from time to time party thereto and CoBank, ACB, as
administrative agent (as amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”),
together with interest on the unpaid principal balance hereof at such interest
rates and payable at such times as are specified in the Credit Agreement.


 


This
Note is a Revolving Term Loan T06 Note as defined in the Credit Agreement, and
is issued subject and pursuant to the Credit Agreement, which, among other
things, provides for the amount and date of payments of principal and interest
required hereunder, acceleration of the maturity hereof upon the occurrence of
an Event of Default (as defined in the Credit Agreement), and prepayment hereof
upon the occurrence of certain events.


 


The Borrower shall pay all costs of
collection, including reasonable attorneys’ fees and legal expenses, if this
Note is not paid when due, whether or not legal proceedings are commenced.


 


Presentment
or other demand for payment, notice of dishonor and protest are expressly
waived.


 


	
   

  	
  AMERICAN
  CRYSTAL SUGAR COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


F-1

















 


Exhibit G


 


REVOLVING LETTER OF CREDIT NOTE


 


	
  $                         

  	
    , 20    

  
	
   

  	
  Denver, Colorado

  



 


For
value received, AMERICAN CRYSTAL SUGAR COMPANY, a cooperative association
formed under the laws of the State of Minnesota (the “Borrower”),
promises to pay to the order of                           ,
a                                                   (the
“Lender”), at such place as the
Administrative Agent under the Credit Agreement defined below may from time to
time designate in writing, in lawful money of the United States of America and
in immediately available funds, the principal sum of                                                   Dollars  ($                 ),
or, if less, the aggregate unpaid principal amount of all Revolving Letter of
Credit Advances (as defined in the Credit Agreement) made by the Lender to the
Borrower under the Amended and Restated Credit Agreement dated as of July 30,
2009  by and among the Borrower, the Lender,
certain other Lenders from time to time party thereto and CoBank, ACB, as
administrative agent (as amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”),
together with interest on the unpaid principal balance hereof at such interest
rates and payable at such times as are specified in the Credit Agreement.


 


This
Note is a Revolving Letter of Credit Note as defined in the Credit Agreement,
and is issued subject and pursuant to the Credit Agreement, which, among other
things, provides for the amount and date of payments of principal and interest
required hereunder, acceleration of the maturity hereof upon the occurrence of
an Event of Default (as defined in the Credit Agreement), and prepayment hereof
upon the occurrence of certain events.


 


The Borrower shall pay all costs of
collection, including reasonable attorneys’ fees and legal expenses, if this
Note is not paid when due, whether or not legal proceedings are commenced.


 


Presentment
or other demand for payment, notice of dishonor and protest are expressly
waived.


 


	
   

  	
  AMERICAN
  CRYSTAL SUGAR COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


G-1
















 


Exhibit H


BORROWING REQUEST


 


[                                  ,
          ]


 


To:          CoBank,
ACB, as Administrative Agent


5500 South Quebec Street


Greenwood Village, CO 80111


Attention: Michael Tousignant


 


We refer to that certain Amended and Restated Credit Agreement dated as
of July 30, 2009  by and among
AMERICAN CRYSTAL SUGAR COMPANY, a cooperative association formed under the laws
of the State of Minnesota (the “Borrower”),
the Lenders from time to time party thereto, and CoBank, ACB, a federally
chartered banking organization, as administrative agent (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit
Agreement”).  Capitalized
terms used herein but not otherwise defined shall have the same meanings
assigned to them in the Credit Agreement.


 


We hereby request or confirm our request for a Borrowing under the                     
Facility, on the date, of the type(s) and in the amount(s) specified
in Annex I attached hereto and request or confirm our request that each
Lender make Advance(s) in such Lender’s Percentage of the requested
Borrowing (the “Requested Advances”).


 


To induce the Lenders to make the Requested Advances, we hereby
represent and warrant to the Lenders that:


 


(a)           For the Revolving Credit Facility Advances
Only:  As of the date hereof and
before giving effect to the Requested Advances, the Aggregate Short-Term Loan
Amount was [$                        ].  After giving effect to the Requested
Advances, the Aggregate Short-Term Loan Amount will be [$                            ].


 


(b)           No Default or Event of Default exists or
will result from the making of the Requested Advances.


 


(c)           The conditions precedent set forth in Section 3.2 of the Credit Agreement are fully satisfied
as of the date of the Requested Advances.


 


H-1

















 


	
   

  	
  AMERICAN CRYSTAL SUGAR COMPANY  

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


H-2

















 


ANNEX I


to
Borrowing Request


Dated
[                            ,
         ]


 


	
  Facility

  	
   

  	
  Amount of

  Borrowing

  Request

  	
   

  	
  Type of Advance

  (Base Rate, LIBO

  Rate, Quoted

  Rate)

  	
   

  	
  Date of

  Borrowing

  	
   

  	
  Interest Period

  (LIBO Rate)

  	
   

  	
  Expiry Date of

  Interest Period

  (LIBO Rate)

  	
   

  	
  Quoted Rate

  (*if applicable)

  	
   

  	
  Quoted Rate

  Period (*if

  applicable)

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






* [To be completed by
Administrative Agent]


 


H-3

















 


Exhibit I


NOTICE OF CONVERSION TO LIBO RATE


 


[                              ,
          ]


 


To:          CoBank,
ACB, as Administrative Agent


5500 South Quebec Street


Greenwood Village, CO 80111


Attention: Michael Tousignant


 


We refer to that certain Amended and Restated Credit Agreement dated as
of July 30, 2009  by and among
AMERICAN CRYSTAL SUGAR COMPANY, a cooperative association formed under the laws
of the State of Minnesota (the “Borrower”),
the Lenders from time to time party thereto, and CoBank, ACB, a federally
chartered banking organization, as administrative agent (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit
Agreement”).  Capitalized
terms used herein but not otherwise defined shall have the same meanings
assigned to them in the Credit Agreement.


 


Pursuant to Section 2.3 of
the Credit Agreement, we hereby request or confirm our request that Base Rate
Loans in the aggregate amount(s) specified in Annex I attached hereto
be converted into LIBOR Loans (the “Requested Conversion(s)”)
on the date(s) and for the Interest Period(s) specified in
Annex I attached hereto and that each Lender make such conversion(s) in
such Lender’s Percentage of the Requested Conversion(s).


 


To induce the Lenders to make the Requested Conversion(s), we hereby
represent and warrant to the Lenders that no Default or Event of Default exists
or will result from the making of any Requested Conversion(s).


 


	
   

  	
  AMERICAN CRYSTAL SUGAR COMPANY  

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


I-1

















 


ANNEX I


to Notice of Conversion to LIBO Rate


Dated [               ,
           ]


 


	
  Facility under which 

  Loans to be 

  Converted are 

  Outstanding

  	
   

  	
  Amount to 

  be Converted

  	
   

  	
  Date of

  Conversion

  	
   

  	
  Interest

  Period

  	
   

  	
  Expiry Date of

  Interest Period

  	
   

  	
  LIBO Rate*

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






* [To be completed by Administrative Agent]


 


I-2

















 


Exhibit J


NOTICE OF CONVERSION TO QUOTED RATE


 


[                                 ,
             ]


 


To:          CoBank,
ACB, as Administrative Agent


5500 South Quebec Street


Greenwood Village, CO 80111


Attention: Michael Tousignant


 


We refer to that certain Amended and Restated Credit Agreement dated as
of July 30, 2009 by and among AMERICAN CRYSTAL SUGAR COMPANY, a
cooperative association formed under the laws of the State of Minnesota (the “Borrower”), the Lenders from time to time party thereto,
and CoBank, ACB, a federally chartered banking organization, as
administrative agent (as amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”).  Capitalized terms used herein but not
otherwise defined shall have the same meanings assigned to them in the Credit
Agreement.


 


Pursuant to Section 2.4 of the Credit Agreement, we hereby request
or confirm our request that Base Rate Loans in the aggregate amount(s) specified
in Annex I attached hereto be converted into Quoted Rate Loans (the “Requested Conversion(s)”) on the date(s) specified in
Annex I attached hereto and that each Lender make such conversion(s) in
such Lender’s Percentage of the Requested Conversion(s).


 


To induce the Lenders to make the Requested Conversion(s), we hereby
represent and warrant to the Lenders that no Default or Event of Default exists
or will result from the making of any Requested Conversion(s).


 


	
   

  	
  AMERICAN CRYSTAL SUGAR COMPANY  

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


J-1

















 


ANNEX I


to Notice of Conversion to Quoted Rate

Dated [               ,
           ]


 


	
  Facility under which 

  Loans to be 

  Converted are 

  Outstanding

  	
   

  	
  Amount to 

  be 

  Converted

  	
   

  	
  Date of

  Conversion

  	
   

  	
  Type of 

  Loan to be

  Converted

  	
   

  	
  Quoted 

  Rate*

  	
   

  	
  Quoted Rate

  Period*

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






* [To be completed by Administrative Agent]


 


J-2

















 


Exhibit K


NOTICE OF ROLLOVER OF LIBO RATE


 


[                                 ,
             ]


 


To:          CoBank,
ACB, as Administrative Agent


5500 South Quebec Street


Greenwood Village, CO 80111


Attention: Michael Tousignant


 


We refer to that certain Amended and Restated Credit Agreement dated as
of July 30, 2009 by and among AMERICAN CRYSTAL SUGAR COMPANY, a
cooperative association formed under the laws of the State of Minnesota (the “Borrower”), the Lenders from time to time party thereto,
and CoBank, ACB, a federally chartered banking organization, as
administrative agent (as amended, restated, supplemented or otherwise modified
from time to time, the “Credit Agreement”).  Capitalized terms used herein but not
otherwise defined shall have the same meanings assigned to them in the Credit
Agreement.


 


Pursuant to Section 2.5 of the Credit Agreement, we hereby request
or confirm our request that LIBOR Loans in the aggregate amount(s) specified
in Annex I attached hereto be renewed (the “Requested Renewal(s)”)
on the date(s) and for the Interest Period(s) specified in Annex I
attached hereto and that each Lender make such renewal(s) in such Lender’s
Percentage of the Requested Renewal(s).


 


To induce the Lenders to make the Requested
Renewal(s), we hereby represent and warrant to the Lenders that no Default or
Event of Default exists or will result from the making of any such Requested
Renewal(s).


 


	
   

  	
  AMERICAN CRYSTAL SUGAR COMPANY  

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


K-1

















 


ANNEX I


to Notice of Rollover of LIBO Rate


Dated [               ,
           ]


 


	
  Facility under 

  which Loans to be 

  Renewed are 

  Outstanding

  	
   

  	
  Amount of 

  LIBOR Loans 

  to be Renewed

  	
   

  	
  Expiring 

  Interest Period

  	
   

  	
  New 

  Interest 

  Period

  	
   

  	
  Expiry Date of

  Interest Period

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 


K-2
















 


Exhibit L


 


NOTICE OF ROLLOVER OF QUOTED RATE


 


[                        ,
            ]


To:                            CoBank, ACB, as
Administrative Agent


5500
South Quebec Street


Greenwood
Village, CO 80111


Attention:
Michael Tousignant


 


We
refer to that certain Amended and Restated Credit Agreement dated as of July 30,
2009 by and among AMERICAN CRYSTAL SUGAR COMPANY, a cooperative association
formed under the laws of the State of Minnesota (the “Borrower”),
the Lenders from time to time party thereto, and CoBank, ACB, a federally
chartered banking organization, as administrative agent (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit
Agreement”).  Capitalized
terms used herein but not otherwise defined shall have the same meanings
assigned to them in the Credit Agreement.


 


Pursuant to Section 2.6 of the Credit Agreement, we hereby request
or confirm our request that Quoted Rate Loans in the aggregate amount(s) specified
in Annex I attached hereto be renewed (the “Requested Renewal(s)”)
on the date(s) and for the Quoted Rate Period(s) specified in Annex I attached
hereto and that each Lender make such renewal(s) in such Lender’s Percentage of
the Requested Renewal(s).


 


To induce the Lenders to
make the Requested Renewal(s), we hereby represent and warrant to the Lenders
that no Default or Event of Default exists or will result from the making of
any such Requested Renewal(s).


 


	
   

  	
  AMERICAN CRYSTAL SUGAR COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


L-1

















 


ANNEX I


to Notice of Rollover of Quoted
Rate


Dated                 ,
         


 


	
  Facility under

  which Loans to be

  Renewed are

  Outstanding

  	
   

  	
  Amount
  of

  Quoted Rate

  Loans to be

  Renewed

  	
   

  	
  Expiring

  Quoted Rate

  Period

  	
   

  	
  New

  Quoted

  Rate Period

  	
   

  	
  Expiry
  Date of

  Quoted Rate

  Period

  	
   

  	
  Quoted

  Rate*

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  



 






*
[To be completed by Administrative Agent]


 


L-2

















 


Exhibit M


 


CERTIFICATE OF OFFICER AS TO
FINANCIAL STATEMENTS


 


[                          ,
         ]


To:                            CoBank, ACB, as
Administrative Agent


5500
South Quebec Street


Greenwood
Village, CO 80111


Attention:
Michael Tousignant


 


RE:                       Financial Statements — AMERICAN CRYSTAL SUGAR COMPANY  (the “Borrower”)


 


We
refer to that certain Amended and Restated Credit Agreement dated as of July 30,
2009 by and among AMERICAN CRYSTAL SUGAR COMPANY, a cooperative association
formed under the laws of the State of Minnesota (the “Borrower”),
the Lenders from time to time party thereto, and CoBank, ACB, a federally
chartered banking organization, as administrative agent (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit
Agreement”).  Capitalized
terms used herein but not otherwise defined shall have the same meanings assigned
to them in the Credit Agreement.


 


I hereby certify on behalf of the Borrower as follows:


 


1.                                      I am the duly
qualified and acting treasurer of the Borrower, and I am familiar with the
financial statements and financial affairs of the Consolidated Group, and am
authorized to execute this Certificate on behalf of the Borrower.


 


2.                                      Pursuant to Section
5.1 of the Credit Agreement, attached are
the required [audited financial statements of the Consolidated Group prepared
by [                          ]
as of and for the Fiscal Year ended [                
                   ,
20    ] / unaudited financial statements of the
Consolidated Group as of and for the Fiscal Quarter ended [                 ,
        ]] (the “Applicable Covenant Computation Date”).  Such financial statements have been prepared
in accordance with GAAP, fairly present the financial condition of the
Consolidated Group as of such date and the results of the Consolidated Group’s
operations for the period then ended, prepared on a consolidated and
consolidating basis, subject to year-end adjustments and footnotes, and conform
to the applicable requirements of Section 5.1
of the Credit Agreement.


 


3.                                      The Borrower
has obtained no knowledge of any Default or Event of Default, except as
specifically stated on an attachment hereto (if any).


 


M-1

















 


4.                                      The
computations attached hereto in Annex I set forth the Borrower’s compliance or
non-compliance with the requirements set forth in the Financial Covenants as of
the Applicable Covenant Computation Date. Such computations have been prepared
from, and on a basis consistent with, the financial statements attached hereto.


 


	
   

  	
  AMERICAN CRYSTAL SUGAR COMPANY

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:
  

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 


M-2

















 


Annex I

to Exhibit M


 


FINANCIAL
COVENANT CALCULATIONS


 


	
  Covenant

  	
   

  	
  Required

  	
   

  	
  Actual

  
	
  Section 5.9 — Minimum Interest Coverage Ratio

  	
   

  	
  Not less than 3.25 to 1.00

  	
   

  	
               
  to 1.00

  
	
  Section 5.10 — Maximum Capitalization Ratio

  	
   

  	
  Not more than 0.55 to 1.00

  	
   

  	
               
  to 1.00

  
	
  Section 5.11 — Minimum Net Working Capital

  	
   

  	
  Not less than:  

   

  (a) $35,000,000 as of each Fiscal Year End; and  

   

  (b) $15,000,000 as of each Covenant Compliance
  Date

  	
   

  	
   

   

  (a)                

   

   

  (b)              

  



 


M-3

















 


EXHIBIT N


ASSIGNMENT AND ASSUMPTION


 


This Assignment
and Assumption (the “Assignment and Assumption”)
is dated as of the Effective Date set forth below and is entered into by and
between [the][each](1) Assignor identified in item 1 below ([the][each, an] “Assignor”) and [the][each](2) Assignee identified in item 2
below ([the][each, an] “Assignee”).  [It is understood and agreed that the rights
and obligations of [the Assignors][the Assignees](3) hereunder are several and
not joint.](4)  Capitalized terms used
but not defined herein shall have the meanings given to them in the Amended and
Restated Credit Agreement dated as of July 30, 2009 by and among AMERICAN
CRYSTAL SUGAR COMPANY, a cooperative association formed under the laws of the
State of Minnesota (the “Borrower”),
the Lenders from time to time party thereto, and CoBank, ACB, a federally
chartered banking organization, as administrative agent (as amended, restated,
supplemented or otherwise modified from time to time, the “Credit
Agreement”).  Capitalized
terms used herein but not otherwise defined shall have the same meanings
assigned to them in the Credit Agreement.


 


[The][Each] Assignee hereby acknowledges receipt of a copy of the Credit
Agreement.  The Standard Terms and
Conditions set forth in Annex 1 attached hereto are hereby agreed to and
incorporated herein by reference and made a part of this Assignment and
Assumption as if set forth herein in full.


 


For an agreed consideration, [the][each] Assignor hereby irrevocably
sells and assigns to [the Assignee][the respective Assignees], and [the][each]
Assignee hereby irrevocably purchases and assumes from [the Assignor][the
respective Assignors], subject to and in accordance with the Standard Terms and
Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below, (i) all of [the Assignor’s][the
respective Assignors’] rights and obligations in [its capacity as a
Lender][their respective capacities as Lenders] under the Credit Agreement and
any other documents or instruments delivered pursuant thereto to the extent
related to the amount and percentage interest identified below of all of such
outstanding rights and obligations of [the Assignor][the respective Assignors]
under the respective facilities identified below (including without limitation
any letters of credit, and guarantees included in such facilities), and (ii) to
the extent permitted to be assigned under applicable law, all claims, suits,
causes of action and any other right of [the Assignor (in its capacity as a
Lender)][the respective Assignors (in their respective capacities as Lenders)]
against any Person, whether known or unknown, arising under or in connection
with 


 






(1)         For bracketed
language here and elsewhere in this form relating to the Assignor(s), if the
assignment is from a single Assignor, choose the first bracketed language.  If the assignment is from multiple Assignors,
choose the second bracketed language.


 


(2)         For bracketed
language here and elsewhere in this form relating to the Assignee(s), if the
assignment is to a single Assignee, choose the first bracketed language.  If the assignment is to multiple Assignees,
choose the second bracketed language.


 


(3)         Select as
appropriate.


 


(4)         Include
bracketed language if there are either multiple Assignors or multiple
Assignees.


 


N-1

















 


the
Credit Agreement, any other documents or instruments delivered pursuant thereto
or the loan transactions governed thereby or in any way based on or related to
any of the foregoing, including but not limited to contract claims, tort
claims, malpractice claims, statutory claims and all other claims at law or in
equity related to the rights and obligations sold and assigned pursuant to
clause (i) above (the rights and obligations sold and assigned by [the][any]
Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being
referred to herein, collectively, as [the][an] “Assigned
Interest”).  Each such sale
and assignment is without recourse to [the][any] Assignor and, except as
expressly provided in this Assignment and Assumption, without representation or
warranty by [the][any] Assignor.


 


	
  1.

  	
   

  	
  Assignor[s]:

  	
  [

  
	
   

  	
   

  	
   

  	
                                                                 ]

  
	
   

  	
   

  	
   

  	
   

  
	
  2.

  	
   

  	
  Assignee[s]:

  	
  [                                                               

  
	
   

  	
   

  	
   

  	
                                                                 ]

  
	
   

  	
   

  	
   

  	
   

  
	
  3.

  	
   

  	
  Borrower(s):

  	
  [                                                             ]

  
	
   

  	
   

  	
   

  	
   

  
	
  4.

  	
   

  	
  Administrative
  Agent:

  	
  [                               ], as the
  administrative agent under the Credit Agreement

  
	
   

  	
   

  	
   

  	
   

  
	
  5.

  	
   

  	
  Assigned
  Interest[s]:

  	
   

  



 


	
  Assignor[s](5)

  	
   

  	
  Assignee[s](6)

  	
   

  	
  Facility

  Assigned(7)

  	
   

  	
  Aggregate Amount

  of Commitment/

  Loans for all

  Lenders(8)

  	
   

  	
  Amount of

  Commitment/

  Loans

  Assigned(8)

  	
   

  	
  CUSIP

  Number

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
  $

  	
   

  	
  $

  	
   

  	
   

  	
   

  



 






	
  (5)

  	
  List
  each Assignor, as appropriate.

  
	
   

  	
   

  
	
  (6)

  	
  List
  each Assignee, as appropriate.

  
	
   

  	
   

  
	
  (7)

  	
  Fill
  in the appropriate terminology for the types of facilities under the Credit
  Agreement that are being assigned under this Assignment (e.g. “Revolving
  Credit Commitment,” “Term Loan Commitment,” etc.)

  
	
   

  	
   

  
	
  (8)

  	
  Amount
  to be adjusted by the counterparties to take into account any payments or
  prepayments made between the Trade Date and the Effective Date.

  



 


N-2

















 


[6.          Trade Date:                                                           ](9)


 






	
  (9)

  	
  To
  be completed if the Assignor(s) and the Assignee(s) intend that the minimum
  assignment amount is to be determined as of the Trade Date.

  



 


N-3

















 


Effective Date:   [                             
      , 20    ] [TO BE INSERTED
BY ADMINISTRATIVE AGENT, WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF
TRANSFER IN THE REGISTER THEREFOR.]


 


The terms set forth in this Assignment and Assumption are hereby agreed
to:


 


	
   

  	
  ASSIGNOR[S](10)

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME OF ASSIGNOR]

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:
  

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  ASSIGNEE[S](11)

  
	
   

  	
   

  	
   

  
	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
  [NAME OF ASSIGNEE]

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Title:
  

  	
   

  



 






	
  (10)

  	
  Add
  additional signature blocks as needed.

  
	
   

  	
   

  
	
  (11)

  	
  Add
  additional signature blocks as needed.

  



 


N-4

















 


	
  [Consented
  to and](12) Accepted:

  	
   

  
	
   

  	
   

  
	
  [NAME OF ADMINISTRATIVE AGENT], as

  	
   

  
	
  Administrative Agent

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  
	
   

  	
   

  	
   

  
	
  [Consented to:](13)

  	
   

  
	
   

  	
   

  
	
  [NAME OF RELEVANT PARTY]

  	
   

  
	
   

  	
   

  
	
  By

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Title:

  	
   

  



 






	
  (12)

  	
  To be added only if the consent of the
  Administrative Agent is required by the terms of the Credit Agreement.

  
	
   

  	
   

  
	
  (13)

  	
  To
  be added only if the consent of the Borrower and/or other parties (e.g.
  Letter of Credit Issuer) is required by the terms of the Credit Agreement.

  



 


N-5
















 


ANNEX 1


 


STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION


 


1.  Representations and Warranties.


 


1.1  Assignor[s].  [The][Each] Assignor (a) represents and
warrants that (i) it is the legal and beneficial owner of [the][the
relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free
and clear of any lien, encumbrance or other adverse claim and (iii) it has
full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the
Credit Agreement or any other Loan Document, (ii) the execution, legality,
validity, enforceability, genuineness, sufficiency or value of the Loan
Documents or any collateral thereunder, (iii) the financial condition of the
Borrower, any of its Subsidiaries or Affiliates or any other Person obligated
in respect of any Loan Document or (iv) the performance or observance by
the Borrower, any of its Subsidiaries or Affiliates or any other Person of any
of their respective obligations under any Loan Document.


 


1.2.  Assignee[s].  [The][Each] Assignee (a) represents and
warrants that (i) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby and to become a Lender under
the Credit Agreement, (ii) it meets all the requirements to be an assignee
under Section      (b)(iii), (v) and (vi) of
the Credit Agreement (subject to such consents, if any, as may be required
under Section      (b)(iii) of the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by
the provisions of the Credit Agreement as a Lender thereunder and, to the
extent of [the][the relevant] Assigned Interest, shall have the obligations of
a Lender thereunder, (iv) it is sophisticated with respect to decisions to
acquire assets of the type represented by the Assigned Interest and either it,
or the person exercising discretion in making its decision to acquire the
Assigned Interest, is experienced in acquiring assets of such type, (v) it
has received a copy of the Credit Agreement, and has received or has been
accorded the opportunity to receive copies of the most recent financial
statements delivered pursuant to Section       
thereof, as applicable, and such other documents and information as it deems
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it
has, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) if
it is a Foreign Lender, attached to the Assignment and Assumption is any
documentation required to be delivered by it pursuant to the terms of the
Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees
that (i) it will, independently and without reliance on the Administrative
Agent, [the][any] Assignor or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Loan Documents, and (ii) it
will perform in 


 


N-6

















 


accordance
with their terms all of the obligations which by the terms of the Loan
Documents are required to be performed by it as a Lender.


 


2.  Payments.  From and after the Effective Date, the
Administrative Agent shall make all payments in respect of [the][each] Assigned
Interest (including payments of principal, interest, fees and other amounts) to
[the][the relevant] Assignor for amounts which have accrued to but excluding
the Effective Date and to [the][the relevant] Assignee for amounts which have
accrued from and after the Effective Date.


 


3.  General Provisions.  This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns.  This
Assignment and Assumption may be executed in any number of counterparts, which
together shall constitute one instrument. 
Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption.  This Assignment and Assumption shall be
governed by, and construed in accordance with, the law of the State of
Colorado.


 


N-7

















 


Exhibit O


 


FARM CREDIT PARTICIPANTS


 


	
  Name

  	
   

  	
  Participation Amounts

  	
   

  	
  Notice Address

  	
   

  	
  Voting

  Participant

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AgCountry Farm Credit Services, FLCA

  	
   

  	
  Revolving Credit Facility Participation:  

  $18,000,000

  Revolving Term Loan T01 Participation:

  $0

  Revolving Term Loan T06 Participation: 

  $0

  Revolving Letter of Credit Participation: 

  $5,336,397.89

  	
   

  	
  Jim
  Baltezore

  AgCountry,
  FCS

  1900
  44th Street South

  PO
  Box 6020

  Fargo,
  ND 58103

   

  Business
  Phone: 701-499-2579

  Business
  Fax: 701-277-9054

   

  EMail:
  jim.baltezore@agcountry.com

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  AgFirst Farm Credit Bank

  	
   

  	
  Revolving Credit Facility Participation: 

  $40,000,000

  Revolving Term Loan T01 Participation: 

  $0

  Revolving Term Loan T06 Participation: 

  $2,673,797

  Revolving Letter of Credit Participation: 

  $0

  	
   

  	
  John
  Burnside

  AgFirst
  Farm Credit Bank

  1401
  Hampton Street

  Columbia,
  SC 29201

   

  Business
  Phone: 803-753-2221

  Business
  Fax: 803-254-4219

   

  EMail:
  jburnside-servicing@agfirst.com

  	
   

  	
  Yes

  



 


O-1

















 


	
  Bank of North Dakota

  	
   

  	
  Revolving Credit Facility Participation: 

  $20,000,000

  Revolving Term Loan T01 Participation: 

  $0

  Revolving Term Loan T06 Participation: 

  $0

  Revolving Letter of Credit Participation: 

  $0

  	
   

  	
  Tom
  Redmann

  Bank
  of North Dakota

  700
  E. Main Avenue

  Bismarck,
  ND 58502-5509

   

  Business
  Phone: 701-328-5671

  Business
  Fax: 701-328-5731

   

  EMail:
  tredmann@state.nd.us

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Farm Credit Bank of Texas

  	
   

  	
  Revolving Credit Facility Participation: 

  $20,000,000

  Revolving Term Loan T01 Participation: 

  $0

  Revolving Term Loan T06 Participation: 

  $0

  Revolving Letter of Credit Participation: 

  $0

  	
   

  	
  Isaac
  E. Bennett

  Farm
  Credit Bank of Texas

  4801
  Plaza on the Lake Drive

  Austin,
  TX 78746

   

  Business
  Phone: 512-465-0717

  Business
  Fax: 512-465-1832

   

  EMail:
  isaac.bennett@farmcreditbank.com

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Farm Credit Services of America, FLCA

  	
   

  	
  Revolving Credit Facility Participation: 

  $0

  Revolving Term Loan T01 Participation: 

  $0

  Revolving Term Loan T06 Participation: 

  $11,727,807

  Revolving Letter of Credit Participation: 

  $4,438,130.33

  	
   

  	
  Curt
  Brown

  Farm
  Credit Services of America, FLCA

  5015
  South 118th Street

  Omaha,
  NE 68137

   

  Business
  Phone: 402-348-3668

  Business
  Fax: 402-348-3324

   

  EMail:
  brownc@fcsamerica.com

  	
   

  	
  Yes

  



 


N-2

















 


	
  Farm Credit Services of Mid-America, FLCA

  	
   

  	
  Revolving Credit Facility Participation: 

  $22,000,000

  Revolving Term Loan T01 Participation: 

  $0

  Revolving Term Loan T06 Participation: 

  $0

  Revolving Letter of Credit Participation: 

  $0

  	
   

  	
  Ralph
  Bowman

  Farm
  Credit Services of Mid-America, FLCA

  1601
  UPS Drive

  Louisville,
  KY 40223

   

  Business
  Phone: 502-420-3918

  Business
  Fax: 502-420-3618

   

  EMail:
  rbowman@e-farmcredit.com

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  First Pioneer Farm Credit, ACA

  	
   

  	
  Revolving Credit Facility Participation: 

  $0

  Revolving Term Loan T01 Participation: 

  $0

  Revolving Term Loan T06 Participation: 

  $10,708,618

  Revolving Letter of Credit Participation: 

  $4,266,562.38

  	
   

  	
  James
  Papai

  First
  Pioneer Farm Credit, ACA

  240
  South Road

  Enfield,
  CT 06082

   

  Business
  Phone: 860-741-4380 x261

  Business
  Fax: 860-253-5565

   

  EMail:
  james.papai@firstpioneer.com

  	
   

  	
  Yes

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Northwest Farm Credit Services, FLCA

  	
   

  	
  Revolving Credit Facility Participation: 

  $0

  Revolving Term Loan T01 Participation: 

  $0

  Revolving Term Loan T06 Participation: 

  $14,705,882

  Revolving Letter of Credit Participation: 

  $15,205,663.01

  	
   

  	
  Northwest
  Farm Credit Services, FLCA

  1700
  S. Assembly Street

  Spokane,
  WA 99224

   

  EMail:
  participations@farm-credit.com

  	
   

  	
  Yes

  



 


N-3

















 


	
  U.S. AgBank, FCB

  	
   

  	
  Revolving Credit Facility Participation: 

  $50,000,000

  Revolving Term Loan T01 Participation: 

  $0

  Revolving Term Loan T06 Participation: 

  $25,183,896

  Revolving Letter of Credit Participation: 

  $6,545,036.93

  	
   

  	
  245
  N. Waco

  Wichita,
  KS 67202

  Attention: Travis Ball

  Phone: 
  (316) 266-5448

  Facsimile: (316) 291-5011

  E-mail: 
  travis.ball@usagbank.com

  	
   

  	
  Yes

  



 


N-4

















 


Schedule
4.1


 


DOING
BUSINESS NAMES; BUSINESS LOCATIONS


 


	
  Obligor

  	
   

  	
  Names and Locations

  
	
   

  	
   

  	
   

  
	
  American Crystal Sugar
  Company

  	
   

  	
  Name, Trade Names, Etc.:  American Crystal Sugar Company

   

  State of Organization:  Minnesota

   

  Chief Executive Office: 101 Third
  Street North, Moorhead, MN 56560-1952

   

  Principle Place of
  Business: 101 Third Street North, Moorhead, MN 56560-1952

   

  Tax Identification Number: 84-0004720

   

  Direct and Indirect
  Subsidiaries: Sidney Sugars Incorporated, ProGold Limited
  Liability Company, Crab Creek Sugar Company

  
	
   

  	
   

  	
   

  
	
  Sidney Sugars Incorporated

  	
   

  	
  Name, Trade Names, Etc.: Sidney
  Sugars Incorporated

   

  State of Organization: Minnesota

   

  Chief Executive Office: 101 Third
  Street North, Moorhead, MN 56560-1952

   

  Principle Place of
  Business: 35140 County Road 125, Sidney, MT 59270

   

  Tax Identification Number: 22-3874444

   

  Direct and Indirect
  Subsidiaries: None

  



 


1

















 


Schedule
4.4


 


CAPITALIZATION;
ORGANIZATION CHART


 


Holder,
Class and Percentage Interests of the Ownership of Each Obligor and
Subsidiaries:


 


Borrower owns 100% of the
outstanding capital stock of Sidney Sugars Incorporated (Guarantor).


 


Borrower owns 100% of the
outstanding capital stock of Crab Creek Sugar Company.


 


Borrower owns 51% of the
outstanding membership interests in ProGold Limited Liability Company.


 


Organization
Chart:


 





 


1

















 


Schedule
4.7


 


LITIGATION


 


None.


 


1
















 


Schedule 4.11


PLANS


 


Retirement Plan A for
Employees of American Crystal Sugar Company and for Employees of Sidney Sugars
Incorporated.


 


Retirement Plan B for
Employees of American Crystal Sugar Company and for Employees of Sidney Sugars
Incorporated.


 


Group Employee Health Plan
for Employees and Retirees of American Crystal Sugar Company.


 


Group Health Plan  for employees and retirees of Sidney Sugars Incorporated.


 


1

















 


Schedule 4.12


ENVIRONMENTAL COMPLIANCE


 


None.


 


1

















 


Schedule 4.18


LICENSES, COMPLIANCE WITH LAWS, OTHER AGREEMENTS


 


None.


 


1

















 


Schedule 6.1


OUTSTANDING LIENS


 


Liens in favor of the Noteholders
(as defined in the Intercreditor Agreement) to secure the Senior Secured Notes
(as defined in the Intercreditor Agreement).


 


Liens in favor of AgCountry
Farm Credit Services, PCA, as evidenced by UCC filing #20023434494 filed on
March 18, 2002, with the Minnesota Secretary of State against the Borrower
as debtor.


 


Liens in favor of IBM
Credit LLC, as evidenced by the following: 
(i) UCC filing #200518456168 filed on October 21, 2005, with
the Minnesota Secretary of State against the Borrower as debtor, (ii) UCC
filing #200614578524 filed on December 7, 2006, with the Minnesota
Secretary of State against the Borrower, and (iii) UCC filing
#200716132381 filed on March 29, 2007, with the Minnesota Secretary of
State against the Borrower.


 


Liens in favor of Farm
Credit Leasing Services Corporation, as evidenced by UCC filing
#200612520764 filed on June 27, 2006, with the Minnesota Secretary of
State against the Borrower as debtor.


 


Liens in favor of RDO
Equipment Co., as evidenced by the following: (i) UCC filing #200810993995
filed on March 17, 2008, with the Minnesota Secretary of State against the
Borrower as debtor, and (ii) UCC filing #200811234423 filed on April 2,
2008 with the Minnesota Secretary of State against the Borrower as debtor.


 


Liens in favor of North
Central Rental & Leasing LLC, as evidenced by the following:  (i) UCC filing #200811843478 filed
on May 19, 2008, with the Minnesota Secretary of State against the
Borrower as debtor, (ii) UCC filing #200915431532 filed on March 23,
2009, with the Minnesota Secretary of State against the Borrower as debtor, and
(iii) UCC filing #200916118363 filed on May 15, 2009, with the
Minnesota Secretary of State against the Borrower as debtor.


 


Liens in favor of American
National Bank and Trust Company against the pollution control equipment
located at Moorhead, Minnesota as security for the 2001A East Grand Forks Bonds
and the 2001B East Grand Forks Bonds.


 


Liens in favor of Minn-Dak
Farmers Cooperative and United States Sugar Corporation against
marketing assets.


 


1

















 


Schedule 6.2


OUTSTANDING DEBT


 


Debt owed to the 1998
Noteholders (as defined in the Intercreditor Agreement) with respect to the
1998 Senior Secured Notes (as defined in the Intercreditor Agreement).


 


Debt owed to the 2003
Noteholders (as defined in the Intercreditor Agreement) with respect to the
2003 Senior Secured Notes (as defined in the Intercreditor Agreement).


 


Solid Waste Bonds (Traill
County, North Dakota) in the aggregate principal amount of $27,330,000.


 


1997 City of Moorhead Bonds
in the aggregate principal amount of $5,500,000.


 


2001A East Grand Forks Bonds
in the aggregate principal amount of $2,715,000.


 


2001B East Grand Forks Bonds
in the aggregate principal amount of $245,000.


 


2008 East Grand Forks Bonds
in the aggregate principal amount of $34,350,000.


 


Debt owed to Wells Fargo
Bank in connection with the Borrower’s $1,000,000 overnight line.


 


Debt owed by Sidney Sugars
Incorporated to the Borrower in connection with intercompany loans.


 


Debt owed to the Obligor’s
marketing pool (which includes Minn-Dak Farmers Cooperative and United States
Sugar Corporation).


 


Debt secured by the Liens
described on Schedule 6.1.


 


Debt guarantied pursuant to
the Guaranties described on Schedule 6.3.


 


1

















 


Schedule 6.3


OUTSTANDING GUARANTIES


 


The Borrower has guaranteed
the debt of Midwest Agri-Commodities Company in the aggregate principal amount
of $5,150,000 owed to Co-Bank, ACB.


 


The Guarantor has guaranteed
the Borrower’s debt owed to the Noteholders (as defined in the Intercreditor
Agreement) with respect to the Senior Secured Notes (as defined in the
Intercreditor Agreement).


 


1

















 


Schedule 6.4


EXISTING INVESTMENTS


 


Investments in the following
entities as reflected on the Borrower’s financial statements:


 


Sidney Sugars Incorporated


ProGold Limited Liability Company


 


Crab Creek Sugar Company


 


United Sugars Corporation


 


Midwest Agri Commodities Company


 


Co-Bank, ACB


 


Other cooperatives (CHS and electric coops)


 


1