**Exhibit 10.17**

 

**AMENDED AND RESTATED CREDITAGREEMENT**

 

**among**

 

**AMERICAN CRYSTAL SUGAR COMPANY,**

 

**as Borrower,**

 

**VARIOUS LENDERS,**

 

**and**

 

**COBANK, ACB,**

 

**as Administrative Agent and LeadArranger**

** **

** **

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**$494,556,602Credit Facilities**

** **

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** **

**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 |

** **

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| 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     |

 

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| **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 |

 

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**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                                    |

 

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**AMENDEDAND RESTATED CREDIT AGREEMENT**

 

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

 

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

 

TheBorrower and, subject to the terms and conditions set forth herein, theAdministrative Agent and the Lenders now desire to amend and restate the PriorCredit 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 partieshereto hereby agree as follows:

 

# **ARTICLE IDEFINITIONS**

# ** **

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

##  

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

 

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

 

(c)           All accounting terms not otherwise defined hereinhave 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 onlyto the extent not prohibited by the terms of any Loan Document.

 

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

 

**“Accounts”** means the aggregate unpaid obligations of customersand other account debtors of an Obligor arising out of the sale of goods or therendition of services by such Obligor on an open account or deferred paymentbasis.

 

**“Act”** has the meaning specified in Section 9.18.

 

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**“Administrative Agent”** has the meaning specifiedin the preamble.

 

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

 

**“Advance”** means a loan of funds by a Lender to the Borrowerunder a Facility.

 

**“Affiliate”** means, with respect to a Person, (a) anyofficer of such Person or member of the Governing Board of such Person; (b) anyPerson who, individually or with his immediate family owns or holds more than10% of the voting interest in the subject Person; and (c) any Personcontrolled 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 thepower 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 Agentnor 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 theAggregate Revolving Credit Facility Commitment Amount, the Aggregate RevolvingLetter of Credit Commitment Amount, the Aggregate Revolving Term Loan T01 CommitmentAmount and the Aggregate Revolving Term Loan T06 Commitment Amount then ineffect.

 

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

 

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

 

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

 

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**“Assignment and Assumption”** means an assignment andassumption entered into by a Lender and an assignee of that Lender’s interest,in substantially the form of Exhibit Nor any other form approved by the Administrative Agent.

 

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

 

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

 

**“Base Rate”** means, for any day, an annual rate equal to (a) theapplicable Margin, plus (b) the higher of (i) the Prime Rate,or (ii) one hundred fifty basis points plus the rate obtained by dividingthe applicable Floating LIBO Rate then in effect by a percentage equal to 1.00minus the applicable percentage (expressed as a decimal) prescribed by theBoard of Governors of the Federal Reserve System (or any successor thereto) fordetermining 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 amember bank of the Federal Reserve System with respect to such eurodollar fundings.

 

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

 

**“Base Rate Loan”** means any Loan that bears interest at a ratedetermined 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 theBorrower.

 

**“Borrowing Base”** means, at any time, an amount equal to thesum 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 BaseCertificate submitted to, and accepted by, the Administrative Agent.

 

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

 

**“BSA”** has the meaning specified in Section 5.3.

 

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**“Business Day”** means any day other than a Saturday orSunday 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 aLIBO Rate, a day on which dealings in U.S. dollar deposits are carried on inthe London interbank eurodollar market.

 

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

 

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

 

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

 

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

 

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

 

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

 

4

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

 

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

 

**“Closing Date”** means the dateof this Agreement.

 

**“CoBank”** has the meaning specified in the preamble.

 

**“Code”** means the InternalRevenue Code of 1986, as amended.

 

**“Collateral”** means all realand personal property in which the Administrative Agent, on behalf of theLenders, has been granted a Lien pursuant to any Security Document, togetherwith all substitutions and replacements for, and products and proceeds of, anyof the foregoing.

 

**“Commitment”** means, withrespect to any Lender, the Revolving Credit Facility Commitment, the RevolvingTerm Loan T01 Commitment, the Revolving Term Loan T06 Commitment or theRevolving Letter of Credit Commitment, as the context requires.

 

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

 

**“Commitment Termination Date”** means the Revolving CreditFacility Termination Date, the Revolving Term Loan T01 Commitment TerminationDate, the Revolving Term Loan T06 Commitment Termination Date and the RevolvingLetter of Credit Commitment Termination Date, as the context requires.

 

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

 

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**“Communications”** has themeaning specified in Section 9.5(a).

 

**“Consolidated Group”** means theBorrower and its Consolidated Subsidiaries, including but not limited to eachGuarantor.

 

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

 

**“Covenant Compliance Date”** means the last day of eachFiscal Quarter of the Borrower.

 

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

 

**“Credit Exposure”** means, with respect to any Lender, (a) atall times prior to termination of the Commitments, the aggregate amount of suchLender’s Commitments; and (b) thereafter, such Lender’s FacilityOutstanding Amount.

 

**“Credit Extension”** means the making of anyAdvance, the conversion to, or continuation of, any LIBOR Loan or the issuanceof any Letter of Credit.

 

**“Debt”** means, with respect to any Person, withoutduplication:  (a) all obligations ofsuch Person for borrowed money; (b) all obligations of such Personevidenced by bonds, debentures, notes or other similar instruments; (c) allobligations of such Person to pay the deferred purchase price of property orservices, except trade accounts payable arising in the ordinary course ofbusiness; (d) all obligations of such Person as lessee under CapitalLeases that have been or should be recorded as liabilities on a balance sheetof such Person in accordance with GAAP; (e) all indebtedness secured by aLien on any asset of such Person, whether or not such indebtedness has beenassumed by such Person; (f) all indebtedness and other obligations ofothers guaranteed by such Person; (g) all net obligations of such Personunder currency, commodity or interest rate swap program or any similaragreement, arrangement or undertaking relating to fluctuations in commodityprices, currency values or interest rates, including but not limited to RateHedging Obligations; (h) all obligations, contingent or otherwise, withrespect to the face amount of letters of credit (whether or not drawn) andbankers’ acceptances issued for the account of such Person; (i) allRedeemable Capital Stock of such Person; (j) all obligations of suchPerson arising under Synthetic Leases; and (k) all obligations of suchPerson to advance funds to, or purchase assets, property or services from, anyother Person in order to maintain the financial condition of such Person.  For all purposes of this Agreement, the Debtof any Person shall include the Debt of any partnership or joint venture inwhich such Person is a general partner or a joint venturer; provided, that theportion (if any) of any such Debt that exceeds the amount of such Debt as towhich there is recourse to such Person shall not be included hereunder as Debtof such Person.

 

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

 

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

 

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

 

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

 

**“Disclosed Information”** has the meaning specifiedin Section 9.8.

 

**“Eligible Accounts”** means all unpaid Accountsarising from a bona fide sale or rendition of services by an Obligor in theordinary course of business on usual and ordinary terms, evidenced by aninvoice and net of any applied or unapplied credits or other allowance (withany such unapplied credits or other allowances being applied to the mostcurrent Account of an Obligor); provided, however, that the following shall inno event be deemed Eligible Accounts:

 

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

 

(b)           Accounts owed by any unit of government, whetherforeign or domestic, unless such Account is a U.S. government obligation andthe Lenders’ pledge and assignment of such Account has been confirmed by dulyacknowledged and accepted documents complying with the Assignment of Claims Actand 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 withrespect to which a defense, counterclaim, right to discount or deduction hasbeen asserted;

 

(d)           Accounts that are owed by an Account Debtor whoseprincipal corporate office is located outside the United States or Canadaunless the Account is supported by a letter of credit issued by a bankacceptable to the Administrative Agent;

 

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

 

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

 

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

 

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

 

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

 

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

 

**“Eligible Net Inventory”**means, at anytime of determination, Net Inventory of any Obligor that arose in the ordinarycourse of business of such Obligor; provided, however, no Net Inventory shallbe Eligible Net Inventory unless it satisfies each of the followingrequirements:

 

(a)           such Net Inventory is located in the United Stateson real property assets that are either (i) owned by the Obligor, free andclear 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 assignand grant a Lien in such Net Inventory to the Administrative Agent for thebenefit of the Lender Parties;

 

(c)           the Obligor has full and lawful title to such NetInventory, 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 thirdparties for processing, manufacture or on consignment, or on a bill-and-hold,cash-on-delivery or guaranteed sale basis; (ii) items in the Obligor’spossession, but intended by the Obligor for return to the suppliers thereof; (iii) itemsbelonging to third parties that have not been consigned to the Obligor; (iv) itemsin the Borrower’s custody and possession on a sale-on-approval orsale-or-return basis subject to any other repurchase or return agreement; (v) itemsthat are finished goods that do not meet the specifications of the purchaseorder for such goods; (vi) hazardous materials or goods that can betransported 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 furtherprocessing in the ordinary course of the Obligor’s business; (ii) does notconsist of display items, packing or shipping materials, manufacturing surplusor replacement parts; and (iii) is covered by the casualty insurance ofsuch Obligor that is required to be maintained pursuant to the terms of thisAgreement.

 

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**“Environmental Laws”** has the meaning specifiedin Section 4.12.

 

**“ERISA”** means the Employee Retirement Income Security Actof 1974, as amended.

 

**“ERISA Affiliate”** means any trade or business (whether or notincorporated) that is, along with an Obligor, a member of a controlled group ofcorporations or a controlled group of trades or businesses, as described insections 414(b) and 414(c), respectively, of the Code.

 

**“Event of Default”** has the meaning specifiedin Section 7.1.

 

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

 

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

 

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

 

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

 

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

 

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

 

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**“Facility”** means the Revolving Credit Facility, the RevolvingTerm Loan T01 Facility, the Revolving Term Loan T06 Facility or the Revolving Letterof Credit Facility, as the context requires.

 

**“Facility Outstanding Amount”** means the Revolving CreditFacility Outstanding Amount, the Revolving Term Loan T01 Facility OutstandingAmount, the Revolving Term Loan T06 Facility Outstanding Amount or theRevolving Letter of Credit Facility Outstanding Amount, as the contextrequires.

 

**“Farm Credit Lender”** means a lending institutionorganized and existing pursuant to the provisions of the Farm Credit Act of1971 and under the regulation of the Farm Credit Administration.

 

**“Farm Credit Lender Equities”** has the meaning specifiedin Section 9.20.

 

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

 

**“Fee Letter”** means the separate agreement of even date herewithbetween the Borrower and the Administrative Agent, setting forth certain feesto be paid by the Borrower to the Administrative Agent for the AdministrativeAgent’s own account or for the account of the Lenders, as more fully set forththerein.

 

**“Financial Covenants”** means the covenantscontained in Sections 5.9, 5.10 and 5.11.

 

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

 

**“Fiscal Quarter”** means each three-month period ending (a) withinone week prior to or following the last Saturday in November, February andMay 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 1and ending on August 31.

 

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

 

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**“Floating LIBO Rate”**means:  (a) the rate per annum determined by theAdministrative Agent as of approximately 11:00 a.m. London time on thefirst Business Day of each calendar week by reference to the British Bankers’Association Interest Settlement Rates for deposits in dollars offered on theLondon interbank dollar market for a one month period (as displayed in theBloomberg Financial Markets system or any successor thereto or any otherservice selected by the Administrative Agent that has been nominated by theBritish Bankers’ Association as an authorized information vendor for thepurpose of displaying such rates); or (b) if such rate cannot bedetermined, the rate per annum equal to the rate determined by theAdministrative Agent in accordance with Section 2.8 to be a rate at which U.S. dollar deposits are offered to majorbanks in the London interbank eurodollar market for funds to be made availableon the first Business Day of each calendar week and maturing in one month, ineach 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 anysimilar successor rate designated by the Administrative Agent in its reasonablediscretion.

 

**“Foreign Lender”** means any Lender that is organized under thelaws of a jurisdiction other than the United States of America, any statethereof 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 thanany 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 asin effect on the Closing Date and applied on a basis consistent with theaccounting practices applied in the financial statements of the Borrowerreferred to in Section 4.5, exceptfor any change in accounting practices to the extent that, due to apromulgation of the Financial Accounting Standards Board changing orimplementing any new accounting standard, the Borrower either (a) isrequired to implement such change, or (b) for future periods will berequired to and for the current period may in accordance with generallyaccepted accounting principles implement such change, for its financialstatements to be in conformity with generally accepted accounting principles(any such change is hereinafter referred to as a **“RequiredGAAP Change”**), provided that (i) the Borrower shall fullydisclose in such financial statements any such Required GAAP Change and theeffects of the Required GAAP Change on the Borrower’s income, retained earningsor other accounts, as applicable, and (ii) the Financial Covenants shallbe adjusted as necessary to reflect the effects of such Required GAAP Change,provided that if the Required Lenders and the Borrower cannot agree on suchadjustments, the Financial Covenants will be calculated without giving effectto the Required GAAP Change.

 

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

 

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**“Governmental Authority”** means the government of theUnited States of America or any other nation, or of any political subdivisionthereof, 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 functionsof or pertaining to government (including any supra-national bodies such as theEuropean Union or the European Central Bank).

 

**“Guarantor”** means Sidney Sugars Incorporated, a Minnesotacorporation.

 

**“Guaranty”** means the Amended and Restated Guaranty of evendate herewith from****Sidney SugarsIncorporated, a Minnesota corporation and a Subsidiary of the Borrower, infavor of the Agent, for the benefit of the Lender Parties, guaranteeing allpresent and future Obligations.

 

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

 

**“Increased Facility Amount”**has the meaning specified inSection 2.16(b).

 

**“Indemnified Taxes”** means Taxes other thanExcluded Taxes.

 

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

 

**“Initial Farm Credit Participants”** has the meaning specifiedin Section 9.19.

 

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

 

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

 

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

 

**“Interest Expense”** means, with respect to anyPerson for the applicable period, the aggregate consolidated amount of interestpaid, 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 notpaid) on all Debt; (b) the amortization of Debt 

 

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discounts;(c) the amortization of all fees payable in connection with the incurrenceof Debt to the extent included in interest expense; (d) that portion ofany Capital Lease Payment that would constitute imputed interest as determinedin accordance with GAAP; and (e) all fees and charges with respect toletters 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 InterestPeriod is longer than three months, each day prior to the last day of suchInterest Period that occurs at intervals of three months’ duration after thefirst day of such Interest Period); (b) with respect to each Base RateLoan or Quoted Rate Loan, the 10th day of eachcalendar month; and (c) with respect to each Loan, the Maturity Date.

 

**“Interest Period”** means, relative to any LIBOR Loan, theperiod 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) theday that numerically corresponds to such date one, three or six monthsthereafter (or, if such month has no numerically corresponding day, on the lastBusiness Day of such month), as the Borrower may select in its relevant noticepursuant to Section 2.2, 2.3 or 2.5;provided, however, that:

 

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

 

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

 

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

 

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

 

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

 

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Investmentshall be the original cost of such Investment plus the cost of all additionsthereto, without any adjustments for increases or decreases in value, orwrite-ups, write-downs or write-offs with respect to such Investment (otherthan adjustments for the repayment of, or the refund of capital with respectto, 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 anyofficer of such Person.

 

**“Lease”** means, with respect to any Person, any leasing orsimilar arrangement for the lease or use of any real or personal property ofsuch Person, including, without limitation, any Capital Lease or OperatingLease.

 

**“Lender”** has the meaning specified in the preamble.

 

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

 

**“Letter of Credit”** has the meaning specifiedin Section 2.9.

 

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

 

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

 

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

 

**“Letter of Credit Fee”** has the meaning specifiedin Section 2.9(b).

 

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

 

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

 

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

 

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

 

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

 

**“LIBO Base Rate”** means, with respect to an Interest Period: (a) therate 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 ofsuch Interest Period by reference to the British Bankers’ Association InterestSettlement Rates for deposits in dollars offered on the London interbank dollarmarket for a period corresponding to the term of such Interest Period and in anamount comparable to the aggregate amount of the relevant Loan (as displayed inthe Bloomberg Financial Markets system or any successor thereto or any otherservice selected by the Administrative Agent that has been nominated by theBritish Bankers’ Association as an authorized information vendor for thepurpose 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 inaccordance with Section 2.8 to be arate at which U.S. dollar deposits are offered to major banks in the Londoninterbank eurodollar market for funds to be made available on the first day ofsuch Interest Period and maturing at the end of such Interest Period, in eachcase rounded upwards, if necessary, to the nearest 1/16 of 1%.

 

**“LIBO Rate”** means, with respect to an Interest Period, the rateobtained by adding (a) the applicable Margin to (b) the rate obtainedby dividing (i) the applicable LIBO Base Rate by (ii) a percentageequal to 1.00 minus the applicable percentage (expressed as a decimal)prescribed by the Board of Governors of the Federal Reserve System (or any successorthereto) for determining the maximum reserve requirements applicable toeurodollar fundings (currently referred to as **“EurocurrencyLiabilities”** in Regulation D) or any other maximum reserverequirements applicable to a member bank of the Federal Reserve System withrespect to such eurodollar fundings.

 

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

 

**“LIBOR Loan”** means any Loan that bears interest at a ratedetermined 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 underany Capital Lease, title retention contract or similar agreement.

 

**“Loan”** means a designated portion of outstanding principalindebtedness under one or more Facilities that bears interest at a ratedetermined by reference to a particular LIBO Rate, Base Rate or Quoted Rate, asthe case may be.

 

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

 

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

 

**“Margin”** means, with respect to computation of theapplicable interest rate on any Loans or the applicable Letter of Credit Fee orUnused Fee, as the case may be, the applicable increment set forth anddescribed in the Pricing Grid, established as of the last day of each FiscalQuarter according to the then-applicable Status.  Any adjustment in the applicable Margin shallnot become effective until the first calendar day of the first month immediatelyfollowing receipt by the Administrative Agent of financial statements relatingto the last day of such Fiscal Quarter pursuant to Section 5.1.  Iffinancial statements of the Consolidated Group necessary to establish theappropriate Margin hereunder are not received by the Administrative Agent on orprior to the date required pursuant to Section 5.1, the applicable Margin shall be determined as if Level IIIStatus were in effect, and such Level III Status shall remain in effect untilsuch time as the required financial statements are so received.

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

(b)           members’ investment retirements.

 

**“Net Income”** means, with respect to any Person for theapplicable period, such Person’s after-tax net income as determined inaccordance with GAAP.

 

**“Net Inventory”** means (a) all Inventory of any Obligoras determined on the basis of “Net Realizable Value”, less (b) croppayments 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) theexpected costs to complete and dispose of such Inventory, all as calculated inaccordance with GAAP.

 

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

 

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

 

**“Non-Consenting Lender”** has the meaning specifiedin Section 9.7.

 

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

 

**“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 orin connection with any of the Loan Documents that the Borrower may now or atany time hereafter owe to any Lender Party, whether such debt, liability orobligation now exists or is hereafter created or incurred, whether it is director indirect, due or to become due, absolute or contingent, primary orsecondary, liquidated or unliquidated, or sole, joint, several or joint andseveral, and including specifically, but not limited to, due and owing to aLender from the Borrower and all indebtedness, liabilities and obligations ofthe Borrower arising under or evidenced by the Notes; and (b) Rate HedgingObligations.

 

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

 

**“OFAC”** has the meaning specified in Section 5.3.

 

**“Operating Lease”** means, with respect to any Person, anyleasing or similar arrangement for the lease or use of any equipment or otherpersonal property assets that, in accordance with GAAP, would not becharacterized as a Capital Lease.

 

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

 

**“Other Taxes”** means all present or future stamp ordocumentary taxes or any other excise or property taxes, charges or similar leviesarising from any payment made hereunder or under any other Loan Document orfrom 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 specifiedin Section 9.19.

 

**“Patron”**means a member of the Borrower.

 

**“Pension Plan”** means a pension plan (as defined in section3(2) of ERISA) maintained for employees of any Obligor or any ERISAAffiliate and covered by Title IV of ERISA.

 

**“Percentage”** means, with respect to any Lender, the ratio ofthat Lender’s Credit Exposure to the aggregate Credit Exposure of allLenders.  Where the context refers to aparticular Facility, “Percentage” shall be determined with respect to thatFacility only; provided, however, that from and after the occurrence of anEvent of Default and during the continuance thereof, “Percentage” shall not bedetermined 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) ofERISA) maintained for employees of any Obligor or ERISA Affiliate.

 

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**“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 certainRestated Mortgage and Security Agreement Mortgage Short-Term Redemption datedas of September 15, 1998 from the Borrower to CoBank, assuccessor-in-interest to St. Paul Bank for Cooperatives, as collateralagent, 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 toRestated Mortgage and Security Agreement Mortgage Short-Term Redemption datedas of January 15, 2003, which was recorded in Pembina County, North Dakotaon February 3, 2003, Document No. 224279, Traill County, North Dakotaon 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 Agreementto Restated Mortgage and Security Agreement Mortgage Short-Term Redemptiondated as of July 31, 2006, which was recorded in Pembina County, NorthDakota on September 6, 2006, Document No. 231885, Traill County, NorthDakota 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 Mortgageand 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 inRichland County, Montana on January 31, 2003, Document No. 516256,Book B-178 at pages 540-577, as amended by a First Amendment to Mortgageand Security Agreement of even date herewith.

##  

**“Prime Rate”** means, for any day, the rate of interest referredto as the “U.S. Prime Rate” as reported on such day in the Money Rates sectionof The Wall Street Journal, or, if The Wall Street Journal shallcease publication or publication of the “U.S. Prime Rate”, any similarsuccessor rate designated by the Administrative Agent in its reasonablediscretion. Such rate is a reference rate and does not necessarily representthe lowest or best rate actually charged to any customer.  CoBank or any other Lender may makecommercial loans or other loans at rates of interest at, above or below thePrime Rate.

 

**“Prior Credit Agreement”** has the meaning specifiedin the preamble.

 

**“Quoted Rate”** means, for a Quoted Rate Period, the perannum rate quoted by the Administrative Agent in its sole discretion, pursuantto Section 2.7.

 

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

 

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**“Quoted Rate Loan”** means any Loan that bearsinterest at a rate determined by reference to a Quoted Rate, including QuotedRate Advances.

 

**“Quoted Rate Period”** means, relative to anyQuoted Rate Loan, the period beginning on (and including) the date on whichsuch Quoted Rate Loan is made, or continued as, or converted into, a QuotedRate Loan pursuant to Sections 2.2(d), 2.4, 2.6and 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 Dayand shall continue for a period of not less than 30 days;

 

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

 

(c)           if a Quoted Rate Period would otherwise end on a daythat is not a Business Day, such Quoted Rate Period shall end on the nextfollowing Business Day; and

 

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

 

**“Rate Hedging Arrangements”** means any arrangement of aPerson having the effect of hedging, limiting or putting a cap on, or collararound, the extent to which such Person would be adversely affected byfluctuations in interest rates, currency exchange rates, or commodity or energyprices.

 

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

 

**“Redeemable Capital Stock”** means, with respect to anyPerson, any Capital Stock of such Person that, either by its terms, by theterms of any security into which it is convertible or exchangeable orotherwise, (a) is or upon the happening of an event or passage of timewould be required to be redeemed (for consideration other than shares of thecommon equity capital of such Person) on or prior to the Maturity Date; (b) isredeemable at the option of the holder thereof (for consideration other thanshares of the common equity capital of such Person); or (c) is convertibleinto 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-daynotice requirement under ERISA has been waived in regulations issued by thePension 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 atleast 51%; 

 

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

 

**“Required Payment”** has the meaning specifiedin Section 2.17(c).

 

**“Restricted Payment”** means any payment onaccount of any shares, interests, participations, convertible debentures,warrants or other equivalents of any Obligor, including but not limited to anydividend or distribution and any payment in purchase, redemption, retirement orother acquisition thereof, or any other payment or distribution for any reasonto or for the account or benefit of any Affiliate, together with any redemptionor purchase of, or distribution in respect of, any of the foregoing; notincluding, however, (a) payments to officers and Directors of the Borrowerin the ordinary course of business pursuant to market terms and conditions; (b) redemptionsof any shares, equity interests, participation or other equivalents of adeceased member of an Obligor; and (c) the annual revolvement of unitretains, or retained patronage that occurs in the ordinary course of business.

 

**“Revolving Credit Facility”** means the revolving creditfacility 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 aLender to the Borrower under the Revolving Credit Facility, including Base RateLoans, LIBOR Loans and Quoted Rate Loans made thereunder.

 

**“Revolving Credit Facility Borrowing”** means a Borrowingconsisting of a Revolving Credit Facility Advance by each of the RevolvingCredit Facility Lenders.

 

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

 

**“Revolving Credit Facility Lender”** means any Lender with aRevolving Credit Facility Commitment.

 

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

 

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

 

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** **

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

 

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

 

**“Revolving Letter of Credit Borrowing”** means a Borrowingconsisting of a Revolving Letter of Credit Advance by each of the RevolvingLetter of Credit Lenders.

 

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

 

**“Revolving Letter of Credit Commitment Termination Date”** means theearlier of (a) the applicable Maturity Date for such Facility; and (b) thedate on which the Revolving Letter of Credit Commitments are terminatedpursuant 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 creditfacility being made available to the Borrower by the Lenders pursuant to Section 2.1(d).

 

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

 

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

 

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

 

**“Revolving Term Loan T01 Advance”** means a loan of funds by aLender to the Borrower under the Revolving Term Loan T01 Facility, includingBase 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 Borrowingconsisting of a Revolving Term Loan T01 Advance by each of the Revolving TermLoan T01 Lenders.

 

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**“Revolving Term Loan T01 Commitment”** means, with respect to eachLender, (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 Assignmentand Assumption; or (b) as the context may require, the obligation of suchLender to make Revolving Term Loan T01 Advances under Section 2.1(b).

 

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

 

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

 

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

 

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

 

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

 

**“Revolving Term Loan T06 Advance”** means a loan of funds by aLender to the Borrower under the Revolving Term Loan T06 Facility, includingBase 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 Borrowingconsisting of a Revolving Term Loan T06 Advance by each of the Revolving TermLoan T06 Lenders.

 

**“Revolving Term Loan T06 Commitment”** means, with respect to eachLender, (a) the amount so designated opposite such Lender’s name on Exhibit A, plus or minus any such amount assumed orassigned pursuant to any Assignment and Assumption; or (b) as the contextmay require, the obligation of such Lender to make Revolving Term Loan T06Advances under Section 2.1(c).

 

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

 

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

 

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**“Revolving Term Loan T06 Facility Outstanding Amount”** means, as ofthe date of determination, (a) the aggregate principal amount of alloutstanding Revolving Term Loan T06 Advances; and (b) the Letter of CreditExposure under the Revolving Term Loan T06 Facility.

 

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

 

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

 

**“Secured Obligations”** means the Obligationsarising under the Revolving Term Loan T01 Facility, the Revolving Term Loan T06Facility and the Revolving Letter of Credit Facility.

 

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

 

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

 

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

 

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

 

**“Subordinated Debt”** means all Debt that hasbeen subordinated to payment of the Obligations on terms and conditionssatisfactory to the Required Lenders, in their sole discretion, as to the rightand time of payment and as to any other rights and remedies thereunder.

 

**“Subordination Agreement”** means an agreement (in formand substance satisfactory to the Required Lenders) executed and delivered byeach holder of Subordinated Debt in favor of the Administrative Agent, for thebenefit of the Lender Parties, pursuant to which such Person subordinatespayment of such Subordinated Debt or other obligations as therein provided topayment of the Obligations to the extent provided therein and all amendmentsand supplements thereto and modifications thereof.

 

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**“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 ordinarycircumstances to elect a majority of the Governing Board of such entity,irrespective of whether or not at the time stock or membership interests of anyother class or classes shall have or might have voting power by reason of thehappening of any contingency, is at the time directly or indirectly owned bysuch Person.  Unless otherwise specified,**“Subsidiary”** means a Subsidiary of theBorrower.

 

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

 

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

 

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

 

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

 

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

 

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

 

**“Voting Participant”** has the meaning specifiedin Section 9.3(g).

 

**“Voting Participant Notification”** has the meaning specifiedin Section 9.3(g).

 

## Section 1.2**           ****Times.** All references to times of day in thisAgreement shall be references to Denver, Colorado time unless otherwisespecifically provided.

##  

# **ARTICLE IICREDIT FACILITIES**

# ** **

## Section 2.1**          ****Commitmentsas to Facilities**.

 

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

 

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FacilityAdvances to the Borrower from time to time during the period from the ClosingDate to and including the Revolving Credit Facility Termination Date, in anaggregate amount at any time outstanding not to exceed such Revolving CreditFacility Lender’s Percentage of each Borrowing from time to time requested bythe Borrower under the Revolving Credit Facility; provided, however, that (i) theAggregate Short-Term Loan Amount shall at no time exceed the Borrowing Base;and (ii) no Revolving Credit Facility Lender’s Percentage of the RevolvingCredit Facility Outstanding Amount shall at any time exceed such RevolvingCredit Facility Lender’s Revolving Credit Facility Commitment.  Within the above limits, the Borrower mayobtain Revolving Credit Facility Advances, prepay Revolving Credit FacilityAdvances in accordance with the terms hereof and reborrow Revolving CreditFacility Advances in accordance with the applicable terms and conditions ofthis Article II.

 

(b)           Revolving Term Loan T01 Facility.  Each Revolving Term Loan T01 Lender herebyagrees, on the terms and subject to the conditions herein set forth, includingbut not limited to satisfaction of all conditions set forth in Section 3.2, to make Revolving Term Loan T01 Advancesto the Borrower from time to time during the period from the Closing Date toand including the Revolving Term Loan T01 Commitment Termination Date, in anaggregate amount at any time outstanding not to exceed such Revolving Term LoanT01 Lender’s Percentage of each Borrowing from time to time requested by theBorrower under the Revolving Term Loan T01 Facility; provided, however,that no Revolving Term Loan T01 Lender’s Percentage of the Revolving TermLoan T01 Facility Outstanding Amount shall at any time exceed such RevolvingTerm Loan T01 Lender’s Revolving Term Loan T01 Commitment.  Within the above limits, the Borrower mayobtain Revolving Term Loan T01 Advances, prepay Revolving Term Loan T01Advances in accordance with the terms hereof and reborrow Revolving Term LoanT01 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 herebyagrees, on the terms and subject to the conditions herein set forth, includingbut not limited to satisfaction of all conditions set forth in Section 3.2, to make Revolving Term Loan T06 Advancesto the Borrower from time to time during the period from the Closing Date toand including the Revolving Term Loan T06 Commitment Termination Date, in anaggregate amount at any time outstanding not to exceed such Revolving Term LoanT06 Lender’s Percentage of each Borrowing from time to time requested by theBorrower under the Revolving Term Loan T06 Facility; provided, however,that no Revolving Term Loan T06 Lender’s Percentage of the Revolving TermLoan T06 Facility Outstanding Amount shall at any time exceed such RevolvingTerm Loan T06 Lender’s Revolving Term Loan T06 Commitment.  Within the above limits, the Borrower mayobtain Revolving Term Loan T06 Advances, prepay Revolving Term Loan T06Advances in accordance with the terms hereof and reborrow Revolving Term LoanT06 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 

 

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limitedto satisfaction of all conditions set forth in Section 3.2, to make Revolving Letter of CreditAdvances to the Borrower from time to time during the period from the ClosingDate to and including the Revolving Letter of Credit Commitment TerminationDate, in an aggregate amount at any time outstanding not to exceed suchRevolving Letter of Credit Lender’s Percentage of each Borrowing from time totime requested by the Borrower under the Revolving Letter of Credit Facility;provided, however, that (i) no Revolving Letter of Credit Lender’sPercentage of the Revolving Letter of Credit Facility Outstanding Amount shallat any time exceed such Revolving Letter of Credit Lender’s Revolving Letter ofCredit Commitment and (ii) Revolving Letter of Credit Advances shall onlybe available hereunder to fund amounts drawn under Letters of Credit issuedunder the Revolving Letter of Credit Facility (or to reimburse a Letter ofCredit Lender for its prior payment of such amounts).  Within the above limits, the Borrower mayobtain Revolving Letter of Credit Advances, prepay Revolving Letter of CreditAdvances in accordance with the terms hereof and reborrow Revolving Letter ofCredit 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**          ****Proceduresfor Advances.**

##  

(a)           Borrowings.  Each Revolving Credit Facility Borrowingshall be funded by the Revolving Credit Facility Lenders; each Revolving TermLoan T01 Borrowing shall be funded by the Revolving Term Loan T01 Lenders; eachRevolving Term Loan T06 Borrowing shall be funding by the Revolving Term LoanT06 Lenders; and each Revolving Letter of Credit Borrowing shall be funded bythe Revolving Letter of Credit Lenders. Each such Borrowing shall be funded as Base Rate Advances, LIBORAdvances or Quoted Rate Advances, as the Borrower shall specify in the relatednotice of proposed Borrowing.  Base RateLoans, LIBOR Loans and Quoted Rate Loans may be outstanding at the same time.

 

(b)           Base Rate Loans.  The principal amount of any Base Rate Loanshall be in an amount equal to $1,000,000 or a higher integral multiple of$1,000,000.  The Borrower shall givenotice to the Administrative Agent of each proposed Borrowing that is to bearinterest 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 ofsuch Borrowing.

 

(c)           LIBOR Loans.  The principal amount of any LIBOR Loan shallbe in an amount equal to $5,000,000 or a higher integral multiple of$1,000,000.  The Borrower shall givenotice to the Administrative Agent of each proposed Borrowing that is to bearinterest 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 dateof such Borrowing.

 

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

 

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(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 confirmedin writing by the Borrower if so requested by the Administrative Agent (in theform of Exhibit H), and shallspecify whether the Borrowing is to bear interest initially at a Base Rate, aLIBO Rate or a Quoted Rate and, in the case of a Borrowing that is to bearinterest initially at a LIBO Rate, shall specify the Interest Period to beapplicable thereto.  Promptly uponreceipt of such notice (but in no event later than the close of business on theBusiness Day of receipt of such notice), the Administrative Agent shall adviseeach Lender to the applicable Facility of the proposed Borrowing.  Subject to satisfaction of the conditionsprecedent set forth in Article IIIwith respect to such Borrowing, at or before 10:00 a.m. (Denver time) onthe date of the requested Borrowing for a LIBOR Advance, Base Rate Advance orQuoted Rate Advance, each of the Revolving Credit Facility Lenders, RevolvingTerm Loan T01 Lenders, Revolving Term Loan T06 Lenders or Revolving Letter ofCredit Lenders, as applicable, shall provide the Administrative Agent at theprincipal office of the Administrative Agent in Denver, Colorado (or such otheroffice as the Administrative Agent may designate), with immediately availablefunds covering such Lender’s Percentage of such Borrowing.  The Administrative Agent shall pay overproceeds 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 LIBORLoans; Procedures**.  So long asno Default or Event of Default shall exist, the Borrower may convert all or anypart of any outstanding Base Rate Loan into a LIBOR Loan by giving notice tothe 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 thedate of the requested conversion.  Eachsuch notice shall be irrevocable, shall be effective upon receipt by theAdministrative Agent, shall be in writing or by telephone or telecopytransmission, to be confirmed in writing by the Borrower if so requested by theAdministrative Agent (in the form of Exhibit I), shall specify the date and amount of such conversion, the totalamount of the Base Rate Loan to be so converted and the Interest Periodtherefor.  Each conversion of a Base RateLoan to a LIBOR Loan shall be on a Business Day, and the aggregate amount ofeach 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 toQuoted Rate Loans; Procedures**.  So long as no Default or Event of Defaultshall exist, the Borrower may convert all or any part of any outstanding BaseRate Loan into a Quoted Rate Loan by giving notice to the Administrative Agentof such conversion not later than 11:00 a.m. on a Business Day that is atleast 1 Business Day prior to the date of the requested conversion.  Each such notice shall be irrevocable, shallbe effective upon receipt by the Administrative Agent, shall be in writing orby telephone or telecopy transmission, to be confirmed in writing by theBorrower if so requested by the Administrative Agent (in the form of Exhibit J), shall specify the date and amount of suchconversion and the total amount of the Loan to be so converted.  Each conversion of a Base Rate Loan to aQuoted Rate Loan shall be on a Business Day, and the aggregate amount of eachsuch conversion shall be an amount equal to $2,000,000 or a higher integralmultiple of $500,000.

 

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## Section 2.5           **Procedures at End of an InterestPeriod**.  Unless the Borrower requests anew LIBOR Loan in accordance with the procedures set forth in this Section, orprepays the principal of an outstanding LIBOR Loan at the expiration of anInterest Period, each Lender shall automatically and without request of theBorrower convert each LIBOR Loan to a Base Rate Loan on the last day of therelevant Interest Period.  So long as noDefault or Event of Default shall exist, the Borrower may cause all or any partof any outstanding LIBOR Loan to continue to bear interest at a LIBO Rate afterthe end of the then-applicable Interest Period by notifying the AdministrativeAgent not later than 11:00 a.m. on a Business Day that is at least 3Business Days prior to the first day of the new Interest Period.  Each such notice shall be effective whenreceived by the Administrative Agent, shall be in writing or by telephone ortelecopy transmission, to be confirmed in writing by the Borrower if sorequested by the Administrative Agent (in the form of Exhibit K), and shall specify the first day of theapplicable Interest Period, the amount of the expiring LIBOR Loan to becontinued and the new Interest Period therefor. Each new Interest Period shall begin on a Business Day and the amount ofeach Loan bearing a new LIBO Rate shall be in an amount equal to $5,000,000 ora higher integral multiple of $1,000,000.

##  

## Section 2.6           **Procedures at End of a Quoted RatePeriod**.  Unless the Borrower requests anew Quoted Rate Loan in accordance with the procedures set forth in thisSection, or prepays the principal of an outstanding Quoted Rate Loan at theexpiration of a Quoted Rate Period, each Lender shall automatically and withoutrequest of the Borrower convert each Quoted Rate Loan to a Base Rate Loan, onthe last day of the relevant Quoted Rate Period.  So long as no Default or Event of Defaultshall exist, the Borrower may cause all or any part of any outstanding QuotedRate Loan to continue to bear interest at a Quoted Rate after the end of thethen applicable Quoted Rate Period by notifying the Administrative Agent notlater than 11:00 a.m. on a Business Day that is at least 1 Business Dayprior to the first day of the new Quoted Rate Period.  Each such notice shall be effective when receivedby the Administrative Agent, shall be in writing or by telephone or telecopytransmission, to be confirmed in writing by the Borrower if so requested by theAdministrative Agent (in the form of Exhibit L), and shall specify the first day of the applicable Quoted RatePeriod, the amount of the expiring Quoted Rate Loan to be continued and the newQuoted Rate Period therefor.  Each newQuoted Rate Period shall begin on a Business Day and the amount of each Loanbearing a new Quoted Rate shall be in an amount equal to $2,000,000 or a higherintegral multiple of $500,000.

##  

## Section 2.7           **Procedures for Determining QuotedRate and Quoted Rate Period applicable to Quoted Rate Loans**.  Upon receipt of a request for a Quoted RateLoan from the Borrower, the Administrative Agent shall notify the Borrower ofthe proposed Quoted Rate and the Quoted Rate Period to be applicable to therequested Quoted Rate Loan.  The Borrowermay decline to accept a proposed Quoted Rate and the applicable Quoted RatePeriod by notifying the Administrative Agent not later than the close ofbusiness on the same business day as the Borrower receives notice of theproposed Quoted Rate.  If the Borrowerdeclines to accept a proposed Quoted Rate and the applicable Quoted RatePeriod, the requested Quoted Rate Loan shall automatically and without furtherrequest of the Borrower be converted into a Base Rate Loan on the first day ofthe requested Quoted Rate Period.

 

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##  

## Section 2.8**          ****Setting andNotice of LIBO Rate and Base Rate.**

##  

(a)           LIBO Rate.  The applicable LIBO Rate for each InterestPeriod shall be determined by the Administrative Agent on the second BusinessDay prior to the beginning of such Interest Period, whereupon notice thereof (whichmay be by telephone) shall be given by the Administrative Agent to the Borrowerand each Lender, as applicable.  Eachsuch determination of the LIBO Rate shall be conclusive and binding upon theparties hereto, in the absence of manifest error.  The Administrative Agent, upon writtenrequest of the Borrower or any Lender, shall deliver to the Borrower or suchrequesting Lender a statement showing the computations used by theAdministrative Agent in determining the applicable LIBO Rate hereunder.

 

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

 

## Section 2.9           **Commitment to Issue Letters ofCredit**.  The Letter of Credit Issueragrees, from the Closing Date to and including the sixtieth (60th) day prior tothe Revolving Credit Facility Termination Date, the Revolving Term Loan T06Commitment Termination Date or the Revolving Letter of Credit CommitmentTermination Date, as applicable, to issue one or more letters of credit for theaccount of the Borrower.  Each Letter ofCredit Lender under a Letter of Credit Facility agrees to participate in therisk of such letters of credit issued for the account of the Borrower undersuch Letter of Credit Facility, on the terms and subject to the conditions setforth 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 theLetter of Credit Issuer if, after giving effect to the issuance of such Letterof Credit (i) the Letter of Credit Exposure in respect of any Letter ofCredit Facility would exceed the Letter of Credit Sublimit for such Facility;or (ii) with respect to a Letter of Credit issued under the RevolvingCredit Facility, the Aggregate Short-Term Loan Amount would exceed theBorrowing Base.  The expiration date ofany Letter of Credit shall not be later than the earlier of (A) one yearafter the date of issuance of such Letter of Credit; and (B) 30 days priorto the Maturity Date for the applicable Letter of Credit Facility.  Each Letter of Credit will be issued underand pursuant to the terms and conditions of such Letter of Credit Documents asthe Letter of Credit Issuer may reasonably require.  The Borrower shall request a Letter of Creditupon not less than 1 Business Day****prior writtenapplication on the Letter of Credit Issuer’s standard form or such other formas may be agreed upon by the Letter of Credit Issuer and the Borrower.  Any request for a Letter of Credit shallspecify the Letter of Credit Facility under which such Letter of Credit is tobe issued.  If any of the terms of anyLetter of Credit Document are inconsistent with the terms and provisions ofthis Agreement, the terms and provisions of this Agreement shall govern.  The Letter of Credit Issuer shall not beobligated to issue a Letter of Credit unless on the date of issuance all of theconditions precedent specified in Section 3.2shall have been satisfied as fully as if the issuance of such Letter of Creditwere an Advance.  Promptly after issuanceof a Letter of Credit pursuant hereto, the Administrative Agent 

 

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shallso advise each Lender under the applicable Letter of Credit Facility of allrelevant 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 issuingfee 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 theAdministrative Agent, for the pro rata account of the applicable Letter ofCredit Lenders, a commission with respect to each Letter of Credit (the **“Letter of Credit Fee”**) at an annual rate equal to the sumof (i) the applicable Margin for Letters of Credit in effect on the datepayment thereof becomes due and payable hereunder with respect to Letters ofCredit constituting standby letters of credit; and (ii) such fee as shallbe determined by the Required Lenders under the applicable Letter of CreditFacility with respect to Letters of Credit constituting commercial letters ofcredit.  The Letter of Credit Fee shallbe payable quarterly in arrears on the tenth calendar day following the end ofeach Fiscal Quarter, and on the Maturity Date, or upon such other terms as maybe agreed upon by the Borrower and the Required Lenders at the time of issuanceof any such Letter of Credit; provided, however, that from and after theoccurrence of an Event of Default and continuing thereafter until such Event ofDefault shall be remedied to the written satisfaction of the Required Lenders,upon written notice from the Administrative Agent the applicable Margin payablehereunder with respect to each Letter of Credit shall be equal to the sum of (i) theMargin otherwise in effect with respect to such Letter of Credit; and (ii) 2.00%.  Letter of Credit Fees payable by the Borrowerto the Lenders in accordance with this subsection (b) shall be sharedamong the applicable Letter of Credit Lenders on a pro rata basis in accordancewith their respective Percentages.

 

(c)           Upon issuance of a Letter of Credit under a Letterof Credit Facility hereunder, and without any further notice to any Lender,each Letter of Credit Lender under such Letter of Credit Facility shall bedeemed to, and hereby irrevocably and unconditionally agrees to, purchase fromthe Letter of Credit Issuer an undivided participating interest in the Letterof Credit Issuer’s risk and obligation under the Letter of Credit issued undersuch Letter of Credit Facility, and in the obligation of the Letter of CreditIssuer 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 fromthe Borrower in the amount of such drawing, and all other rights of the Letterof Credit Issuer with respect thereto, in an amount equal to such Letter ofCredit Lender’s Percentage of the maximum amount available to be drawn undersuch Letter of Credit and the amount of any drawing thereunder.  Whenever a draft submitted under a Letter ofCredit is paid by the Letter of Credit Issuer, the Letter of Credit Issuershall so notify the Administrative Agent, the Administrative Agent shall sonotify each Letter of Credit Lender under the applicable Letter of CreditFacility and shall request immediate reimbursement from the Borrower for theamount of the draft.  If sufficient fundsare not immediately paid to the Administrative Agent by the Borrower, theBorrower shall be deemed to have requested a Borrowing pursuant to Section 2.2 and the applicable Letter of Credit Lendersshall be notified of such request in accordance with Section 2.2 and shall fund such request for a Borrowingas Base Rate Advances (in accordance with their respective Percentages) forpurposes of reimbursing the Letter of Credit Issuer for the amount of suchdraft so paid 

 

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bythe Letter of Credit Issuer (less any amounts realized by the Letter of CreditIssuer pursuant to the second sentence of this Section 2.9(c)). If for any reason or under any circumstance (including but not limited tothe occurrence of a Default or Event of Default or the failure to satisfy anyof the conditions set forth in Section 3.2)the applicable Letter of Credit Lenders do not make the Advances ascontemplated above and the Borrower does not otherwise reimburse the Letter ofCredit Issuer for the amount of the draft so paid by the Letter of CreditIssuer, the Borrower shall nonetheless be obligated to reimburse the amount ofthe draft to the Letter of Credit Issuer, with interest upon such amount at theDefault Rate from and after the date such draft is paid by the Letter of CreditIssuer until the amount thereof is repaid to the Letter of Credit Issuer infull.  If the Letter of Credit Issuershall 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 theAdministrative Agent each applicable Letter of Credit Lender shall immediatelyadvance the amount of its participation in such drawing to the Letter of CreditIssuer and shall be entitled to interest on such participating interest at theDefault Rate until reimbursed in full by the Borrower.

 

(d)           Each Letter of Credit Lender and the Borrower agreethat, in paying any drawing under a Letter of Credit, the Letter of CreditIssuer shall not have any responsibility to obtain any document (other than anysight draft and certificates expressly required by such Letter of Credit) or toascertain or inquire as to the validity or accuracy of any such document or theauthority of the Person executing or delivering any such document.  The Letter of Credit Issuer shall not beliable to any Lender for (i) any action taken or omitted in connectionherewith at the request or with the approval of the Lenders (including theRequired Lenders, as applicable); (ii) any action taken or omitted in theabsence of gross negligence or willful misconduct; or (iii) the dueexecution, effectiveness, validity or enforceability of any document executedin connection with a Letter of Credit.

 

(e)           The Borrower hereby assumes all risks of the acts oromissions of any beneficiary or transferee with respect to its use of anyLetter of Credit; provided that this assumption is not intended to, and shallnot, preclude the Borrower’s pursuing such rights and remedies as it may haveagainst the beneficiary or transferee at law or under any other agreement.  The Letter of Credit Issuer shall not beliable 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) theLetter of Credit Issuer may accept documents that appear on their face to be inorder, without responsibility for further investigation, regardless of anynotice or information to the contrary; and (ii) the Letter of CreditIssuer shall not be responsible for the validity or sufficiency of anyinstrument transferring or assigning, or purporting to transfer or assign, aLetter of Credit or the rights or benefits thereunder or proceeds thereof, inwhole or in part, which may prove to be invalid or ineffective for any reason.

 

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

 

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#### (i)            any lack of validity or enforceability of thisAgreement or any Letter of Credit Document;

####  

#### (ii)           any change in the time, manner or place of paymentof, or in any other term of, all or any of the obligations of the Borrower inrespect of any Letter of Credit or any other amendment or waiver of, or anyconsent to or departure from, any Letter of Credit Document;

####  

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

####  

#### (iv)          any draft, demand, certificate or other documentpresented under any Letter of Credit proving to be forged, fraudulent, invalidor insufficient in any respect or any statement therein being untrue orinaccurate in any respect; or any loss or delay in the transmission orotherwise of any document required in order to make a drawing under any Letterof Credit;

####  

#### (v)           any payment by the Letter of Credit Issuer under anyLetter of Credit against presentation of a draft or certificate that does notstrictly comply with the terms of any Letter of Credit; or any payment made bythe Letter of Credit Issuer under any Letter of Credit to any Person purportingto be a trustee in bankruptcy, debtor-in-possession, assignee for the benefitof creditors, liquidator, receiver or other representative of or successor toany beneficiary or any transferee of any Letter of Credit, including anyarising in connection with any insolvency proceeding;

####  

#### (vi)          any exchange, release or non-perfection of anycollateral, or any release or amendment or waiver of, consent to or departurefrom, any other guarantee, for all or any of the obligations of the Borrower inrespect of any Letter of Credit; and

####  

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

 

(g)           Notwithstanding anything in this Section 2.9 to the contrary, including particularlysubsections (e) and (f) above, the Borrower may have a claimagainst the Letter of Credit Issuer and the Letter of Credit Issuer may beliable 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 thatthe Borrower proves were caused by the Letter of Credit Issuer’s willfulmisconduct or gross negligence or the willful and wrongful failure by theLetter of Credit Issuer to pay under any Letter of Credit after thepresentation to 

 

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

 

(h)           The Borrower shall indemnify, protect, defend andhold harmless each Indemnitee from and against all losses, liabilities, claims,damages, judgments, costs and expenses, including but not limited to allreasonable attorneys’ fees and legal expenses, incurred by the Indemnitees orimposed upon the Indemnitees at any time by reason of the issuance, demand forhonor or honor of any Letter of Credit or the enforcement, protection orcollection of the Letter of Credit Issuer’s claims against the Borrower underthis Section 2.9 or by reason of anyact 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 anyact or omission of an Indemnitee that constitutes gross negligence or willfulmisconduct.

 

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

 

## Section 2.10          **Interest on Loans**.  The Borrower will pay interest on the unpaidprincipal amount of each Loan for the period commencing on the date of thisAgreement until the unpaid principal amount thereof is paid in full, in accordancewith the following:

##  

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

 

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

 

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

 

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

 

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thenin effect with respect to such Loan; plus (ii) two percent (2.00%) (the **“Default Rate”**).  Inaddition, any unreimbursed amounts payable under Section 2.9 and all fees, indemnification obligationsand other Obligations not paid when due hereunder shall bear interest, untilpaid 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 theBorrower be obligated or required to pay interest on any Obligation at a ratethat could subject any Lender to either civil or criminal liability as a resultof being in excess of the maximum interest rate permitted by applicablelaw.  If, under the terms of thisAgreement or any other Loan Document, the Borrower is at any time required orobligated to pay interest on any Obligation at a rate in excess of such maximumrate, the LIBO Rate, Base Rate, Quoted Rate or Default Rate, as the case maybe, shall be deemed to be immediately reduced to such maximum rate and allprevious payments in excess of the maximum rate shall be deemed to have beenpayments in reduction of principal and not on account of any interest thereondue hereunder.  All sums paid or agreedto 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 whichsuch payment applies until payment in full so that the rate or amount ofinterest on account of any such Obligation does not exceed the maximum lawfulrate of interest from time to time in effect and applicable to such Obligationfor so long as the Obligation is outstanding.

 

## Section 2.11        **Obligation to Repay Advances;Representations**.  TheBorrower shall be obligated to repay all Advances under this Article IInotwithstanding the failure of the Administrative Agent to receive any writtenrequest therefor or written confirmation thereof and notwithstanding the factthat the Person requesting the same was not in fact authorized to do so.  Any request for a Credit Extension, whetherwritten, telephonic, telecopy or otherwise, shall be deemed to be a representationby 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 FacilityBorrowing, the amount of the requested Borrowing, when added to the AggregateShort-Term Loan Amount, would not cause the Aggregate Short-Term Loan Amount toexceed the Borrowing Base.

##  

## Section 2.12**       ****Notes;Payment Dates; Mandatory Prepayments.**

##  

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

 

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

 

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

 

(d)           Revolving Term Loan T01Facility Principal.  (i) Aprincipal 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-outstandingprincipal balance of the Revolving Term Loan T01 Facility shall be due andpayable on December 31, 2010; and (iii) the entire remaining unpaidprincipal balance of the Revolving Term Loan T01 Facility shall be due andpayable on the applicable Maturity Date.

 

(e)           Revolving Term Loan T06Facility Principal.  (i) Aprincipal payment equal to fifty percent of the then-outstanding principalbalance 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 theRevolving Term Loan T06 Facility shall be due and payable on the applicableMaturity Date.

 

(f)            Revolving Letterof Credit Facility Principal.  The aggregate unpaid principal amount of allRevolving Letter of Credit Advances shall be payable on the applicable MaturityDate.

 

(g)           Mandatory PrepaymentsFrom Other Sources.  In additionto 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 NetProceeds realized by any Obligor from:

 

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

####  

#### (ii)           any casualty or otherinsured damage to, or any taking under power of eminent domain or bycondemnation 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 beapplied, to repair, restore or replace such property or asset within 180 daysafter such event.

####  

Nothingin this paragraph (g) shall be deemed to authorize or constitute consentto any transaction (including but not limited to any sale of assets or theissuance of any debt or equity) that otherwise would be prohibited orrestricted under this Agreement or under any other Loan Document.  Promptly upon the receipt by any Obligor ofany amounts described in this paragraph (g), the treasurer of the Borrower willdeliver a certificate to the Administrative Agent specifying the amount of NetProceeds received by such Obligor, the date such amounts were received anddescribing the sale, casualty or condemnation giving rise thereto in reasonabledetail.  On or before the one yearanniversary of an Obligor receiving any amounts described in this paragraph(g), the 

 

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

 

(h)           Application of MandatoryPrepayments.

 

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

####  

##### (A)          first, to theprincipal balance of the Revolving Term Loan T01 Facility, the Revolving TermLoan T06 Facility and the Revolving Letter of Credit Facility, to be appliedpro rata in inverse order of their maturities, and, if the amount so prepaidexceeds****$15,000,000, the Commitment Amount foreach such Facility shall be permanently reduced on a pro rata basis by theamount prepaid;

#####  

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

#####  

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

#####  

##### (D)          fourth, toaccrued but unpaid interest on the Facilities; and

#####  

##### (E)           fifth, to anyremaining Obligations, in such order as the Required Lenders may in their solediscretion designate.

#####  

#### (ii)           Unless otherwise provided in this Agreement or theother Loan Documents, payments from the Borrower of principal within anycategory above shall be applied first to the principal of Base Rate Loans, thento 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 theearliest expiring Interest Periods).

####  

(i)            Mandatory Prepayments as a Result of ExcessBorrowing.  If theAggregate Short-Term Loan Amount shall on any date exceed the Borrowing Base,the Borrower, not later than the next Business Day following such date, shallprepay the Revolving Credit Facility Advances in an amount equal to suchexcess, 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 theunreimbursed portion of any Letter of Credit Exposure, all Letter of CreditFees, Unused Fees and other fees described in Section 2.14 shall be computed on the basis of theactual number of days elapsed in a year of 360 days.

 

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##  

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

##  

(a)           Unused Fee.  The Borrower will pay to the AdministrativeAgent, for the pro rata account of the Lenders, an ongoing Unused Fee (the **“Unused Fee”**) computed as the product of (i) an annualrate equal to the applicable Margin relating to the Unused Fee; plus (ii) thedaily average amount by which (1) the sum of the Aggregate CommitmentAmount exceeds (2) the Facility Outstanding Amount, from the Closing Dateto and including the Maturity Date, payable on or prior to the 10th day of eachcalendar month in arrears, as accrued through the last day of immediatelypreceding the calendar month.  Any UnusedFee remaining unpaid on the Maturity Date shall be due and payable on suchdate.  The Unused Fee shall be shared bythe Lenders on the basis of their respective Percentages.

 

(b)           Fee Letter. The Borrower shall pay to the Administrative Agent all fees required tobe 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) providefor the Borrower’s working capital and general corporate purposes; (iii) issueLetters of Credit; (iv) provide back-up liquidity for the issuance by theBorrower of commercial paper; and (v) pay fees and expenses in connectionwith the negotiation, execution and delivery of this Agreement and all othermatters related thereto.

##  

## Section 2.16**        Voluntary Increases, Reduction orTermination of the Commitments; Prepayments.**

##  

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

 

(b)           Optional Increases of Commitment Amount.

 

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

 

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

####  

#### (ii)           *Allocation of Unsubscribed Amounts*.  If any Lender of such increased Facilityelects not to increase its Commitment pursuant to this Section 2.16(b), the Administrative Agent may placesuch unsubscribed amount with one or more other financial institutions thatqualify as Eligible Lenders and may (but need not) be existing Lenders.  The sum of the portion of the IncreasedFacility Amount subscribed under this Section 2.16(b) and the amount placed pursuant to the precedingsentence 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 thereceipt by the Administrative Agent of:

####  

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

#####  

##### (B)          amendments to anyother Loan Documents reasonably requested by the Administrative Agent inrelation to the Increased Facility Amount, which amendments the AdministrativeAgent 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 ofappropriate corporate authorization on the part of the Borrower with respect tothe Increased Facility Amount and the execution and delivery of the documentsdescribed in this Section 2.16(b)(iii);

 

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#####  

##### (E)           such opinions ofcounsel for the Borrower and other assurances as the Administrative Agent mayreasonably request; and

#####  

##### (F)           reimbursement ofthe Administrative Agent’s out-of-pocket costs and expenses (includingreasonable attorney’s fees) incurred in connection therewith.

#####  

(c)           Prepayments. The Borrower from time to time may voluntarily prepay the Loans in wholeor in part.  In the event of eithermandatory prepayment or voluntary prepayment hereunder, (i) any prepaymentof a Facility shall be applied against outstanding Loans of each Lender underthat Facility pro rata according to each Lender’s Percentage of that Facility; (ii) eachprepayment of the Loans shall be made to the Administrative Agent not laterthan 2:00 p.m. on a Business Day, and funds received after that hour shallbe deemed to have been received by the Administrative Agent on the nextfollowing Business Day; (iii) each prepayment of a Fixed Rate Loan shallbe made upon not less than three Business Days notice to the AdministrativeAgent and shall be accompanied by accrued interest on such prepayment throughthe date of prepayment and additional compensation calculated in accordancewith Section 2.21; (iv) eachprepayment of a Fixed Rate Loan shall be in an aggregate amount equal to theapplicable minimum Loan amount specified in Section 2.5 for LIBOR Loans and the applicable minimumLoan amount specified in Section 2.6for Quoted Rate Loans and, after application of any such prepayment, shall notresult in a Fixed Rate Loan remaining outstanding in an amount less than suchminimum Loan amount; and (v) each partial prepayment of Base Rate Loansshall be in an aggregate amount equal to $1,000,000 or a higher integralmultiple of $1,000,000, unless (in either case) the aggregate outstandingbalance of all Loans under the Facility being prepaid is less than such minimumLoan amount, in which event any such prepayment may be in such lesseramount.  Unless otherwise provided inthis Agreement or the other Loan Documents, prepayments from the Borrower ofprincipal within any Facility above shall be applied first to the principal ofBase Rate Loans and Quoted Rate Loan, on a pro rata basis, and then to theprincipal of LIBOR Loans (and, among such LIBOR Loans, first to those with theearliest expiring Interest Periods).

 

## Section 2.17**          Payments.**

##  

(a)           Making of Payments. All payments of principal of and interest due with respect to a Facilityshall be made to the Administrative Agent for the account of the applicableLenders pro rata according to their respective Percentages of suchFacility.  All payments of fees pursuantto Section 2.14 shall be made to theAdministrative Agent for the account of the Administrative Agent or theLenders, as specified in Section 2.14.All payments hereunder shall be made to the Administrative Agent at its officein Denver, Colorado (or at such other location as the Administrative Agent maydirect by notice to the Borrower) not later than 2:00 p.m. on the datedue, in immediately available funds, without set-off or counterclaim, and fundsreceived after that hour shall be deemed to have been received on the nextfollowing Business Day.  The Borrowerhereby authorizes the Administrative Agent to charge the Borrower’s demanddeposit account maintained with the Administrative Agent (or with any otherLender) for the amount of 

 

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anyObligation on its due date, but the Administrative Agent’s failure to so chargeany such account shall in no way affect the obligation of the Borrower to makeany such payment.  The AdministrativeAgent shall remit to each Lender in immediately available funds on the sameBusiness Day as received by the Administrative Agent its share of all suchpayments received by the Administrative Agent for the account of suchLender.  All payments under Sections2.18, 2.19 or 2.21 shall be made by the Borrower directly to the Lenderentitled thereto.

 

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

 

(c)           Distributions by Administrative Agent.  Unless the Administrative Agent shall havebeen notified by a Lender or the Borrower prior to the date on which suchLender or the Borrower is scheduled to make payment to the Administrative Agentof (in the case of a Lender) the proceeds of an Advance to be made by ithereunder or (in the case of the Borrower) a payment to the AdministrativeAgent for the account of one or more of the Lenders hereunder (such payment bya Lender or the Borrower (as the case may be) being herein called a **“Required Payment”**), which notice shall be effective uponreceipt, that it does not intend to make the Required Payment to theAdministrative Agent, the Administrative Agent may assume that the RequiredPayment has been made and may, in reliance upon such assumption (but shall notbe required to), make the amount thereof available to the intended recipient(s) onsuch date and, if such Lender or the Borrower (as the case may be) has not infact made the Required Payment to the Administrative Agent, the recipient(s) ofsuch payment shall, on demand, repay to the Administrative Agent the amount somade available together with interest thereon for each day during the periodcommencing on the date such amount was so made available by the AdministrativeAgent until the date the Administrative Agent recovers such amount at an annualrate (i) equal to the Federal Funds Rate for such day, in the case of aRequired Payment owing by a Lender; or (ii) equal to the applicable rateof interest as provided in this Agreement, in the case of a Required Paymentowing by the Borrower.

 

(d)           Setoff.  TheBorrower agrees that each Lender, subject to such Lender’s sharing obligationsset forth in Section 8.6, shall haveall rights of setoff and bankers’ lien provided by applicable law, and inaddition thereto, the Borrower agrees that if at any time any Obligation is dueand owing by the Borrower under this Agreement to any Lender at a time when anEvent of Default has occurred and is continuing hereunder, any Lender may applyany and all balances, credits, and deposits, accounts or moneys of the Borrowerthen or thereafter in the possession of such Lender (excluding, however, anytrust or escrow accounts held by the Borrower for the benefit of any thirdparty) 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 

 

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

 

(f)            Application of Payments.  Except as otherwise provided herein, so longas no Default or Event of Default has occurred and is continuing hereunder,each payment received from the Borrower shall be applied to such Obligation asthe Borrower shall specify by notice to be received by the Administrative Agenton or before the date of such payment. In the absence of such notice and in any event during the continuance ofany Default or Event of Default, (i) payments received from the Borrower(not constituting proceeds of Collateral) shall be applied, first, topayment of the Obligations, other than the Rate Hedging Obligations, in suchorder of application as the Required Lenders shall determine in their solediscretion, provided, however, that the application of payments to any Facilityshall be distributed ratably to all Lenders in such Facility, and second,ratably, to payment of the Rate Hedging Obligations, and (ii) proceeds ofCollateral, after payment of costs of collection thereof, shall be applied, first,ratably, to payment of the Revolving Term Loan T01 Facility, the Revolving TermLoan T06 Facility and the Revolving Letter of Credit Facility, and applied toprincipal and interest due thereunder in accordance with the IntercreditorAgreement, and second, to any remaining Obligations, in such order ofapplication as the Required Lenders shall determine in their solediscretion.  Any such amounts so receivedon account of outstanding Letters of Credit issued under a Facility will beused 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, asa pledged account and promptly applied to reimbursement of drafts submittedunder such Letters of Credit. Concurrently with each remittance to any Lender of its appropriate shareof any such payment (based upon such Lender’s Percentage of the Facility towhich such payment relates), the Administrative Agent shall advise such Lenderas to the application of such payment.

 

## Section 2.18**        Increased Costs; Funding Exceptions.**

##  

(a)           IncreasedCosts Generally.  If anyChange 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 forthe account of, or credit extended or participated in by, any Lender (exceptany reserve requirement reflected in the LIBO Rate) or the Letter of CreditIssuer;

####  

#### (ii)           subjectany Lender or the Letter of Credit Issuer to any tax of any kind whatsoeverwith respect to this Agreement, any Letter of Credit, any participation in aLetter of Credit or any Fixed Rate Loan made by it, or change the basis oftaxation of payments to such Lender or the Letter of Credit Issuer in respectthereof (except for Indemnified Taxes or Other Taxes covered by Section 2.19 and the imposition of, or any change inthe rate of, any Excluded Tax payable by such Lender or the Letter of CreditIssuer); or

 

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####  

#### (iii)          imposeon any Lender or the Letter of Credit Issuer or the London interbank market anyother condition, cost or expense affecting this Agreement or Fixed Rate Loansmade by such Lender or any Letter of Credit or participation therein;

####  

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

 

(b)           CapitalRequirements.  If any Lenderor the Letter of Credit Issuer determines that any Change in Law affecting suchLender or the Letter of Credit Issuer or any lending office of such Lender orsuch Lender’s or the Letter of Credit Issuer’s holding company, if any,regarding capital requirements has or would have the effect of reducing therate of return on such Lender’s or the Letter of Credit Issuer’s capital or onthe 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 orthe 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 levelbelow that which such Lender or the Letter of Credit Issuer or such Lender’s orthe Letter of Credit Issuer’s holding company could have achieved but for suchChange in Law (taking into consideration such Lender’s or the Letter of CreditIssuer’s policies and the policies of such Lender’s or the Letter of CreditIssuer’s holding company with respect to capital adequacy), then from time totime the Borrower will pay to such Lender or the Letter of Credit Issuer, asthe case may be, such additional amount or amounts as will compensate suchLender or the Letter of Credit Issuer or such Lender’s or the Letter of CreditIssuer’s holding company for any such reduction suffered.

 

(c)           Basis for Determining Interest Rate Inadequate orUnfair.  If with respect to anyInterest Period:

 

#### (i)            theAdministrative Agent determines that, or the Required Lenders determine andadvise the Administrative Agent that, deposits in U.S. dollars (in theapplicable amounts) are not being offered in the London interbank eurodollarmarket for such Interest Period; or

####  

#### (ii)           theAdministrative Agent determines, or the Required Lenders determine and advisethe Administrative Agent (which determination shall be binding and conclusiveon all parties), that by reason of circumstances affecting 

 

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the London interbankeurodollar market, adequate and reasonable means do not exist for ascertainingthe applicable LIBO Rate; or

 

#### (iii)          the Administrative Agent determines, orthe Required Lenders determine and advise the Administrative Agent, that theLIBO Rate determined in accordance with this Agreement will not adequately andfairly reflect the cost to the Lenders of maintaining or funding a LIBOR Loanfor such Interest Period, or that the making or funding of a LIBOR Loan hasbecome impracticable or uneconomic as a result of an event occurring after the dateof this Agreement which materially affects such LIBOR Loans;

####  

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

####  

(d)           Certificatesfor Reimbursement.  Acertificate of a Lender or the Letter of Credit Issuer setting forth the amountor amounts necessary to compensate such Lender or the Letter of Credit Issueror its holding company, as the case may be, as specified in paragraph (a) or (b) ofthis Section and delivered to the Borrower shall be conclusive absentmanifest error.  The Borrower shall paysuch Lender or the Letter of Credit Issuer, as the case may be, the amountshown as due on any such certificate within 10 days after receipt thereof.

 

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

 

## Section 2.19**        Taxes.**

##  

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

 

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payableshall be increased as necessary so that after making all required deductions (includingdeductions applicable to additional sums payable under this Section) the LenderParty entitled thereto receives an amount equal to the sum it would havereceived had no such deductions been made; (ii) the Borrower shall makesuch deductions; and (iii) the Borrower shall timely pay the full amountdeducted to the relevant Governmental Authority in accordance with applicablelaw.

 

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

 

(c)           Indemnificationby the Borrower.  The Borrowershall indemnify each Lender Party within 10 Business Days after demandtherefor, for the full amount of any Indemnified Taxes or Other Taxes(including Indemnified Taxes or Other Taxes imposed or asserted on orattributable to amounts payable under this Section) paid by such Lender Party,and any penalties, interest and reasonable expenses arising therefrom or withrespect thereto, whether or not such Indemnified Taxes or Other Taxes werecorrectly or legally imposed or asserted by the relevant GovernmentalAuthority.  A certificate as to theamount of such payment or liability delivered to the Borrower by a Lender Party(with a copy to the Administrative Agent) shall be conclusive absent manifesterror.

 

(d)           Evidence ofPayments.  As soon aspracticable after any payment of Indemnified Taxes or Other Taxes by theBorrower to a Governmental Authority, the Borrower shall deliver to theAdministrative Agent the original or a certified copy of a receipt issued bysuch Governmental Authority evidencing such payment, a copy of the returnreporting such payment or other evidence of such payment reasonably satisfactoryto the Administrative Agent.

 

(e)           Status ofLenders.  Any Foreign Lenderthat is entitled to an exemption from or reduction of withholding tax under thelaw of the jurisdiction in which the Borrower is resident for tax purposes, orany treaty to which such jurisdiction is a party, with respect to paymentshereunder or under any other Loan Document shall deliver to the Borrower (witha copy to the Administrative Agent), at the time or times prescribed byapplicable law or reasonably requested by the Borrower or the AdministrativeAgent, such properly completed and executed documentation prescribed byapplicable law as will permit such payments to be made without withholding orat a reduced rate of withholding.  In addition,any Lender, if requested by the Borrower or the Administrative Agent, shalldeliver such other documentation prescribed by applicable law or reasonablyrequested by the Borrower or the Administrative Agent as will enable theBorrower or the Administrative Agent to determine whether or not such Lender issubject to backup withholding or information reporting requirements.

 

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

 

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

 

## Section 2.20        **Illegality**. If any change in (including the adoption of any new) applicable laws orregulations, or any change in the interpretation of applicable laws orregulations by any governmental authority, central bank, comparable agency orany other regulatory body charged with the interpretation, implementation oradministration thereof, or compliance by a Lender with any request or directive(whether or not having the force of law, but having general applicability toall within a class of financial institutions similar to a Lender) of any suchauthority, central bank, comparable agency or other regulatory body, shouldmake it or, in the good faith judgment of the affected Lender, shall raise asubstantial question as to whether it is unlawful for such Lender to make,maintain or fund either LIBOR Loans or Quoted Rate Loans, then (a) theaffected Lender shall promptly notify the Borrower and the AdministrativeAgent; (b) the obligation of the affected Lender to make, maintain orconvert into LIBOR Loans or Quoted Rate Loans, as applicable, shall, upon theeffectiveness of such event, be suspended for the duration of suchunlawfulness; and (c) for the duration of such unlawfulness, any notice bythe Borrower pursuant to Section 2.2,2.3, 2.4,2.5, 2.6,or 2.7 requesting the affected Lender tomake or convert into LIBOR Loans or Quoted Rate Loans, as applicable, shall beconstrued as a request to make or to continue making Base Rate Loans.

##  

## Section 2.21        **Loan Losses**.  The Borrower hereby agrees that upon demandby any Lender (which demand shall be accompanied by a statement setting forththe basis for the calculations of the amount being claimed) the Borrower willindemnify such Lender against any loss or expense which such Lender may havesustained or incurred (including but not limited to any net loss or expenseincurred by reason of the liquidation or reemployment of deposits or otherfunds acquired by such Lender to fund or maintain Fixed Rate Loans) or whichsuch Lender may be deemed to have sustained or incurred, as reasonablydetermined by such Lender, (a) as a consequence of any failure by theBorrower to make any payment when due of any amount due hereunder in connectionwith any Fixed Rate Loans; (b) due to any failure of the Borrower toborrow or convert any Fixed Rate Loans on a date specified therefor in a noticethereof, except as permitted by Section 2.7;or (c) due to any payment or prepayment of (i) any LIBOR Loan on adate other than the last day of the applicable Interest Period for such LIBORLoan; or (ii) any Quoted Rate Loan on a date other than the last day ofthe 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 2.7shall be deemed to be irrevocable.

##  

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

 

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

##  

## Section 2.23        **Discretion of Lenders as to Manner of Loan**.  Notwithstanding any provision of thisAgreement to the contrary, each Lender shall be entitled to fund and maintainall or any part of its LIBOR Loans in any manner it deems fit, it beingunderstood, however, that for the purposes of this Agreement (specificallyincluding but not limited to Section 2.21hereof) all determinations hereunder shall be made as if each Lender hadactually funded and maintained each LIBOR Loan during each Interest Period forsuch LIBOR Loan through the purchase of deposits having a maturitycorresponding to such Interest Period and bearing an interest rate equal to theappropriate LIBO Rate for such Interest Period.

##  

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

##  

# **ARTICLE IIICONDITIONS TO CREDIT EXTENSIONS**

# ** **

## Section 3.1           **Conditions Precedent to the Initial Credit Extension**.  The obligation of the Lenders to effect anyCredit Extension is subject to the condition precedent that, on or before theday of the first Credit Extension, and in any event on or before the ClosingDate, the Administrative Agent shall have received the following, each in formand substance satisfactory to the Administrative Agent:

##  

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

 

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

 

(c)           the Intercreditor Agreement, duly executed by the partiesthereto;

 

(d)           a Third Modification Agreement to Restated Mortgage andSecurity Agreement Mortgage Short-Term Redemption, properly executed on behalfof 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 theSecurity Documents, including but not limited to flood insurance if the realestate described in any Mortgage is located within the 100-year flood plain,together with certificates and loss payable endorsements showing theAdministrative Agent, for the benefit of the Lender Parties, as mortgagee,additional insured and lender loss payee thereunder;

 

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

 

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

 

(i)            certificates of the secretary or other appropriateofficer of each Obligor (i) certifying that the execution, delivery and performanceof the Loan Documents and other documents contemplated hereunder to which suchObligor is a party have been duly approved by all necessary action of theGoverning Board of the Obligor, and attaching true and correct copies of theapplicable resolutions granting such approval; (ii) certifying thatattached to such certificates are true and correct copies of the OrganizationalDocuments of such Obligor, together with such copies; and (iii) certifyingthe names of the officers of such Obligor that are authorized to sign the LoanDocuments and other documents contemplated hereunder, together with the truesignatures of such officers;  the LenderParties may conclusively rely on such certificates until the AdministrativeAgent receives a further certificate of the Secretary or Assistant Secretary ofsuch Obligor canceling or amending the prior certificate and submitting thesignatures of the officers named in such further certificate;

 

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

 

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

 

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

 

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

 

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(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 andpayable pursuant to Sections 2.14 and 9.6(a) hereof.

 

## Section 3.2           **Conditions Precedent to All CreditExtensions**.  Theobligation of the Lenders to effect any Credit Extension shall be subject tothe further conditions precedent that on the date of such Credit Extension:

##  

(a)           the representations and warranties contained in Article IVand in each other Loan Document are correct in all material respects on and asof 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 wouldresult from such Credit Extension, which constitutes a Default or an Event ofDefault.

 

Anyrequest for a Credit Extension shall be deemed to be a representation andwarranty that no event has occurred and is continuing, or would result fromsuch Credit Extension, which constitutes a Default or an Event of Default.

 

# **ARTICLE IVREPRESENTATIONS AND WARRANTIES**

# ** **

The Borrower represents andwarrants to the Lender Parties as follows:

 

## Section 4.1           **Legal Existence and Power; Name;Chief Executive Office**.  EachObligor is a legal entity duly organized, validly existing and in good standingunder the laws of its respective state of organization, and is duly licensed orqualified to transact business in all jurisdictions where the character of theproperty owned or leased or the nature of the business transacted by it makessuch licensing or qualification necessary and where failure to obtain suchlicensing or qualification would have a Material Adverse Effect.  Each Obligor has all requisite power andauthority, corporate or otherwise, to conduct its business, to own itsproperties and to execute and deliver, and to perform all of its obligationsunder, the Loan Documents to which it is a party.  Within the last 12 months, each Obligor hasdone business solely under the names set forth in Schedule 4.1.  The state of organization and the chiefexecutive office and principal place of business of each direct and indirectSubsidiary of the Borrower are designated as such in Schedule 4.1, eachother place of business of each Obligor is located at the address set forth inSchedule 4.1 and all records relating to their respective businesses arekept at those locations.

##  

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

 

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##  

## hereunder), or notice to, any governmental department, commission,board, bureau, agency or instrumentality, domestic or foreign, or any thirdparty, except such authorization, consent, approval, registration, declaration,filing or notice as has been obtained, accomplished or given prior to the datehereof; (c) violate any provision of any law, rule or regulation(including but not limited to Regulations T, U or X of the Board ofGovernors of the Federal Reserve System) or of any order, writ, injunction ordecree presently in effect having applicability to an Obligor or of theOrganizational Documents of an Obligor; (d) result in a breach of, orconstitute a default under, any indenture or loan or credit agreement or anyother material agreement, lease or instrument to which an Obligor is a party orby 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 withrespect 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 theLender Parties or as otherwise permitted by this Agreement); in each case of(b), (c) or (d) above, the noncompliance with which would have aMaterial Adverse Effect.

##  

## Section 4.3           **Legal Agreements**.  Each of the Loan Documents constitutes thelegal, valid and binding obligations and agreements of the Obligor that is aparty thereto, enforceable against such Obligor in accordance its terms, exceptto the extent that enforcement thereof may be limited by an applicablebankruptcy, insolvency or similar laws now or hereafter in effect affectingcreditors’ rights generally and by general principles of equity.

##  

## Section 4.4           **Capitalization**.  The holder, class and percentage interests ofthe ownership of each Obligor (other than the Borrower) and all Subsidiaries ofeach Obligor (both direct and indirect) are set forth and described inSchedule 4.4, wherein each Subsidiary that is a Guarantor, if any,hereunder is so noted.  All of the issuedand 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 betriggered by virtue of the transactions contemplated by the Loan Documents.

##  

## Section 4.5           **Financial Condition**.  The Borrower has heretofore furnished to theAdministrative Agent the audited financial statements of the Consolidated Groupfor the Fiscal Year ended August 31, 2008 and the unaudited financialstatements of the Consolidated Group for the Fiscal Quarter ended May 31,2009.  Those financial statements fairlypresent the financial condition of the Consolidated Group on the date thereofand the results of operations and cash flows for the periods then ended(subject to year-end audit adjustments) and were prepared in accordance withGAAP.

##  

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

##  

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

 

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## 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 ofextending credit for the purpose of purchasing or carrying margin stock (withinthe 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 topurchase or carry any margin stock or to extend credit to others for thepurpose of purchasing or carrying any margin stock.

##  

## Section 4.9           **Taxes**.  Each Obligor has paid or caused to be paid tothe proper authorities when due all federal, state, foreign and local taxesrequired to be withheld by it.  EachObligor has filed all federal, state and local tax returns which are requiredto be filed, and such Obligor has paid or caused to be paid to the respectivetaxing authorities all taxes as shown on said returns or on any assessmentreceived by it to the extent such taxes have become due, except for any suchtax, assessment, charge or claim whose amount, applicability or validity isbeing contested by such Obligor in good faith and by proper proceedings and forwhich such Obligor shall have set aside adequate reserves in accordance withGAAP.  Proper and accurate amounts havebeen withheld by each Obligor from its respective employees for all periods incompliance with the tax, social security and any employment withholdingprovisions of applicable federal and state law, and proper and accurate federaland state returns have been filed by each Obligor for all periods for which returnswere due with respect to employee income tax withholding, social security andunemployment taxes, and the amounts shown thereon to be due and payable havebeen paid in full or provision therefor included on the books of such Obligorin accordance with and to the extent required by GAAP.  To the Knowledge of each Obligor, there is nopending investigation of any Obligor by any taxing authority.

##  

## Section 4.10        **Titles and Liens**.  An Obligor has good and absolute fee orleasehold title, as the case may be, to all properties and assets reflected inthe latest consolidated balance sheets referred to in Section 4.5, free and clear of all Liens, except forthe following Liens: (a) the Permitted Liens; and (b) covenants,restrictions, rights, easements and minor irregularities in title which do not (i) materiallyinterfere with the business or operations of any Obligor as presentlyconducted; or (ii) materially impair the value of the property to whichthey attach.  In addition, no financingstatement naming any Obligor as debtor is on file in any office except toperfect the Permitted Liens.

##  

## Section 4.11        **Plans**.  Except as disclosed on Schedule 4.11, noObligor or any of its ERISA Affiliates (a) maintains or has maintained anyPension Plan; (b) contributes or has contributed to any Multi-EmployerPlan; or (c) provides or has provided post-retirement medical or insurancebenefits with respect to employees or former employees (other than benefitsrequired under Section 601 of ERISA, Section 4980B of the Code or applicablestate law).  No Obligor or any of itsERISA Affiliates has received any notice or has any Knowledge to the effectthat 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 withany Pension Plan.  Each Plan that isintended to qualify under the Code is so qualified, and no fact or circumstanceexists which may have an adverse effect on the Plan’s tax-qualified status thatis 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 

 

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## ERISA and Section 412 of the Code) under any Plan, whether or notwaived; (ii) any material liability under Section 4201 or 4243 ofERISA for any withdrawal, partial withdrawal, reorganization or other eventunder any Multi-Employer Plan; or (iii) any material liability or Knowledgeof any facts or circumstances which could result in any material liability tothe Pension Benefit Guaranty Corporation, the Internal Revenue Service, theDepartment of Labor or any participant in connection with any Plan (other thanroutine claims for benefits under the Plan). Other than claims for benefits inthe 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 thatare required under federal, state and local laws and regulations relating toemissions, discharges, releases of pollutants, contaminants, hazardous or toxicmaterials, or wastes into ambient air, surface water, ground water or land, orotherwise relating to the manufacture, processing, distribution, use,treatment, storage, disposal, transport or handling of pollutants, contaminantsor hazardous or toxic materials or wastes (**“EnvironmentalLaws”**) at its facilities or in connection with the operation of itsfacilities, if the failure to obtain such permits, licenses or otherauthorizations 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 withall material Environmental Laws and with all terms and conditions of any requiredpermits, licenses and authorizations applicable to such Person with respectthereto, the noncompliance of which would require aggregate expenditures by theBorrower in excess of $15,000,000 in any Fiscal Year (in excess of the amountsset forth in the Obligor’s budget for such Fiscal Year delivered to theAdministrative Agent hereunder).  To theKnowledge of each Obligor, each Obligor is in material compliance with alllimitations, restrictions, conditions, standards, prohibitions, requirements,obligations, schedules and timetables contained in Environmental Laws orcontained in any plan, order, decree, judgment or notice of which such Obligorhas Knowledge and with respect to which noncompliance would require aggregateexpenditures by any Obligor in excess of 15,000,000 in any Fiscal Year (in excessof the amounts set forth in the Obligor’s budget for such Fiscal Year deliveredto 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 orprevent continued compliance with, or which may give rise to any liabilityunder, any Environmental Laws.

##  

## Section 4.13        **Submissions to Lenders**.  This Agreement, together with each other LoanDocument and the exhibits, schedules, attachments, written or oral statements,documents, certificates and other items prepared or supplied to any LenderParty by or on behalf of any Obligor with respect to the transactions contemplatedhereby or thereby, does not contain any untrue statement of a material fact oromit a material fact necessary to make each statement contained herein ortherein not misleading (and, as to projections, valuations or pro formafinancial statements, all of such information presents a good faith opinionbased 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 notdisclosed to the Lender Parties in writing and of which any Obligor hasKnowledge that has had or could reasonably be expected to have a MaterialAdverse Effect.  Notwithstanding theforegoing, the Lender Parties acknowledge that 

 

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##  

## the financial projections and pro forma information as to futureperiods contained therein are subject to general business conditions andeconomic factors that may be beyond any Obligor’s control or otherunanticipated future events which could have an unforeseen impact on theperformance or condition of the Obligors, it being understood that all suchfinancial projections will be subject to uncertainties and contingencies andthat no representation is given that any particular financial projection willultimately be realized.  Notwithstandingthe foregoing, the parties acknowledge the disclaimer set forth in that certainConfidential Information Memorandum dated as of June, 2009, which was preparedand distributed in connection with the transaction contemplated by thisAgreement, and no Obligor makes any representation or warranty of any kind inrespect of such Confidential Information Memorandum.

##  

## Section 4.14**       ****FinancialSolvency**.  Both beforeand after giving effect to all of the loans, guaranties and other financialaccommodations contemplated herein, each of the Borrower and each other Obligor(after taking into account the Borrower’s reimbursement obligation to suchObligor in respect of any guaranty):

##  

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

 

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

 

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

 

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

 

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

 

## Section 4.15        **Information Regarding Owned andLeased Real Estate and Warehouses**.  All material interests (including but notlimited to all fee simple and leasehold interests) of the Obligors in any realproperty or fixtures, wherever located, are subject to the Primary Mortgage.

 

Section 4.16**         ****IntellectualProperty Rights. **Each Obligorpossesses 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 conductof its business, without known conflict with the rights of others.

 

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## Section 4.17        **Conflicts of Interes**t.  No Obligor nor any officer, employee, agentor any other Person acting on behalf of any of the foregoing has, directly orindirectly, given or agreed to give any money, gift or similar benefit (otherthan legal price concessions to customers in the ordinary course of business)to any customer, supplier, employee or agent of a customer or supplier, orofficial or employee of any governmental agency or instrumentality of anygovernment (domestic or foreign) or other Person who was, is, or may be in aposition to help or hinder the business of any Obligor (or assist in connectionwith any actual or proposed transaction), which (a) might subject anyObligor to any material damage or penalty in any civil, criminal orgovernmental litigation or proceeding; (b) if not given in the past, couldhave 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 materialfranchises, permits, licenses and other rights, including all governmentalapprovals, authorizations, consents, licenses and permits, which are necessaryor required for the conduct of the businesses currently conducted by anyObligor (collectively, the **“Licenses”**).  No Obligor has any Knowledge of any basisupon which the renewal of any License would be denied in the future.  Each such License has been validly issued tothe relevant Obligor and is in full force and effect, and no Obligor is inviolation of any such License.  NoObligor is in violation of any term of its Organizational Documents or anyother contract, agreement, judgment or decree, the violation of which wouldhave a Material Adverse Effect, and each Obligor is in full compliance with allapplicable laws, regulations and rules the non-compliance with which wouldhave a Material Adverse Effect.

##  

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

##  

# **ARTICLE VAFFIRMATIVE COVENANTS**

# ** **

Solong as any Obligations (other than contingent indemnity obligations) remainunpaid or any Facility remains outstanding, the Borrower will comply with thefollowing requirements, unless the Required Lenders (or the AdministrativeAgent, with the consent of the Required Lenders) shall otherwise consent inwriting:

 

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

 

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

 

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ofthe Consolidated Group for the Fiscal Year then ended, prepared on aconsolidating and consolidated basis, all in reasonable detail and prepared inaccordance with GAAP, together with (i) a report signed by suchaccountants stating that in making the investigations necessary for saidopinion they obtained no knowledge, except as specifically stated, of anyDefault or Event of Default hereunder and all relevant facts in reasonabledetail to evidence, and the computations as to, whether or not the Borrower isin compliance with the Financial Covenants; and (ii) a certificate of thetreasurer of the Borrower, substantially in the form of Exhibit M, stating that such financial statements havebeen prepared in accordance with GAAP and whether or not such officer hasknowledge 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 daysafter the Borrower’s quarterly filing with the Securities and ExchangeCommission, an unaudited interim balance sheet and statement of income, cashflow and retained earnings of the Consolidated Group as at the end of and forsuch Fiscal Quarter and for the Fiscal Year-to-date period then ended, preparedon a consolidating and consolidated basis, in reasonable detail and stating incomparative form the budget of the Consolidated Group for such calendar monthand for the year-to-date period then ended and the figures for thecorresponding date and periods in the previous year, all prepared in accordancewith GAAP, subject to year-end audit adjustments; and accompanied by a certificateof the treasurer of the Borrower, substantially in the form of Exhibit M, stating (i) that such financialstatements have been prepared in accordance with GAAP, subject to year-endaudit adjustments; (ii) whether or not such officer has knowledge of theoccurrence of any Default or Event of Default hereunder not theretoforereported and remedied and, if so, stating in reasonable detail the facts withrespect thereto; and (iii) all relevant facts in reasonable detail toevidence, and the computations as to whether or not the Borrower is incompliance with the Financial Covenants.

 

(c)           Within 30 days after the end of each month, or morefrequently if desired by the Borrower, a properly completed and executedBorrowing Base Certificate as at the end of such month or such other period, asappropriate.

 

(d)           Within 60****days after theend of each Fiscal Year of the Borrower, the annual budget and forecast ofoperations and Capital Expenditures budget for the Consolidated Group for thenext Fiscal Year, each in reasonable detail, representing the good faithprojections of the Borrower, and certified by the Borrower’s treasurer as beingthe projections upon which the Borrower relies, together with (i) suchsupporting schedules and information as the Administrative Agent from time totime may reasonably request, and (ii) revisions to any of the foregoing ifthe Governing Board of the Borrower approves an increase of more than 20% tothe original Capital Expenditures budget.

 

(e)           From time to time, with reasonable promptness, anyand all receivables schedules, collection reports, pool reports, depositrecords and such other material reports, records or information as theAdministrative Agent or the Required Lenders from time to time may reasonablyrequest.

 

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(f)            Immediately after thecommencement thereof, notice of all litigation and of all proceedings beforeany governmental or regulatory agency affecting any Obligor of the typedescribed in Section 4.7 or which (i) seeka monetary recovery against any Obligor in excess of $7,500,000; or (ii) ifdetermined adversely to any Obligor, could reasonably be expected to have aMaterial Adverse Effect.

 

(g)           Immediately after thecommencement thereof, notice of any violation of any Environmental Law by anObligor and any commencement of any judicial or administrative proceedingagainst an Obligor relating to any Environmental Law, which, if determinedadversely to any Obligor, (i) could reasonably be expected to requireexpenditures of any Obligor in excess of $7,500,000; or (ii) couldreasonably result in the revocation of, or materially affect, any operatingpermits, air permission permits, water discharge permits, hazardous wastepermits or other permits held by an Obligor, the results of which would have aMaterial Adverse Effect.

 

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

 

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

 

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

 

(k)           As promptly aspracticable, and in any event within 30 days after the Borrower has Knowledgethat any Obligor has or is reasonably expected to have any liability under Section4201 or 4243 of ERISA for any withdrawal, partial withdrawal, reorganization orother event under any Multi-Employer Plan, the Borrower will deliver to theAdministrative Agent a statement of the Borrower’s treasurer setting forthdetails as to such liability and the action which Borrower proposes to takewith respect thereto.

 

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

 

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(m)          Promptly, suchadditional information concerning the Borrower and each other Obligor as theAdministrative Agent may reasonably request.

 

All required deliveries pursuant to this Section 5.1 shall be made, to the extent possible, byelectronic 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 eachother Obligor to keep, accurate books of record and account for itselfpertaining to its business and financial condition and such other matters asthe Administrative Agent may from time to time request in which true andcomplete entries will be made in accordance with GAAP consistently applied and,upon request of and reasonable notice by the Administrative Agent, will permitany officer, employee, attorney or accountant for any Lender Party to audit,review, make extracts from or copy any and all corporate and financial booksand records of any Obligor at all reasonable times during ordinary businesshours, to send and discuss with account debtors and other obligors requests forverification of amounts owed to any Obligor, and to discuss the affairs of anyObligor with any of its Directors, officers, employees or agents.  The Borrower will permit any Lender Party orits employees, accountants, attorneys or agents, to examine and inspect anyproperty of any Obligor at any time during ordinary business hours; provided,that each Lender Party will use reasonable efforts to conduct (or haveconducted) any such examination or inspection so as to minimize disruptions tothe operations of such Obligor.

##  

## Section 5.3           **Compliance with Laws**.  The Borrower will, and will cause each otherObligor to, (a) comply in all material respects with the requirements of allapplicable laws and regulations, including but not limited to all EnvironmentalLaws; and (b) use and keep its assets, and will require that others use andkeep 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 Borrowershall (i) ensure, and cause each other Obligor to ensure, that no Personwho owns a controlling interest in, or otherwise controls, the Borrower or anyother Obligor is or shall be listed on the Specially Designated Nationals andBlocked Person List or other similar lists maintained by the Office of ForeignAssets Control (**“OFAC”**), theDepartment of the Treasury or included in any Executive Orders; (ii) notuse or permit the use of the proceeds of any Advance to violate any of theforeign asset control regulations of OFAC or any enabling statute or ExecutiveOrder relating thereto; and (iii) comply, and cause each other Obligor tocomply, 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 willcause each other Obligor to pay or discharge, when due, (a) all taxes,assessments and governmental charges levied or imposed upon it or upon itsincome or profits or upon any properties belonging to it prior in each case tothe date on which penalties attach thereto; (b) all federal, state andlocal taxes required to be withheld by it; and (c) all lawful claims forlabor, materials and supplies that, if unpaid, might by law become a Lien orcharge upon any properties of an Obligor; provided, that no Obligor shall berequired 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 forwhich such Obligor has set aside adequate reserves in accordance with GAAP.

##  

## Section 5.5           **Maintenance of Properties**.  The Borrower will keep and maintain, and willcause each other Obligor to keep and maintain, all of its properties necessaryor useful in its business in good condition, repair and working order (normalwear and tear excepted); provided, however, that nothing in this Section 5.5 shall prevent an Obligor from discontinuingthe operation and maintenance of any of its properties if such discontinuanceis, in the reasonable judgment of such Obligor, desirable in the conduct ofsuch Obligor’s business.  The Borrowerwill, and will cause each other Obligor to, take all commercially reasonablesteps necessary to protect and maintain its Intellectual Property Rights.  The Borrower will, and will cause each otherObligor to, take all commercially reasonable steps necessary to prosecute anyPerson infringing its Intellectual Property Rights and to defend itself againstany 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 eachother Obligor to obtain and at all times maintain, insurance with insurersbelieved by it to be responsible and reputable in such amounts and against suchrisks as described in the Security Documents and otherwise as is usuallycarried by companies engaged in similar business and owning similar propertiesin the same general areas in which it operates.

##  

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

##  

## Section 5.8           **Creation of New Obligors and Subsidiaries**.  The Borrower will obtain prior writtenapproval of the Required Lenders prior to creating a Subsidiary or acquiringany business which would constitute a Subsidiary.  Upon receipt of any such prior writtenapproval, the Borrower will cause each new Subsidiary to execute and deliver tothe 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 suchSubsidiary shall constitute an Obligor hereunder.  In addition, the Borrower will, upon thecreation (or acquisition) of any such Subsidiary, execute and deliver anamendment to the Primary Mortgage with respect to such Subsidiary in favor ofthe Administrative Agent, for the benefit of the Lender Parties.  If any such Subsidiary is organized under ajurisdiction other than the United States of America or a state thereof, theLender Parties will negotiate in good faith with the Borrower and suchSubsidiary to (a) limit the amount of the stock so pledged to the LenderParties; or (b) otherwise include provisions in such Subsidiary’s Guarantydesigned to prevent deemed distributions to the Borrower under Section 956 ofthe Code; provided, however, that such provisions shall preserve the maximumsecurity possible in such Subsidiary, its assets and the Borrower’s equity interesttherein 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, anyObligor, any such Subsidiary or any other Person for the sufficiency of suchprovisions to accomplish their stated purpose.

##  

## Section 5.9           **Minimum Interest Coverage Ratio**.  The Borrower will maintain the InterestCoverage Ratio of the Consolidated Group as of each Covenant Compliance Date atnot less than 3.25 to 1.00.

##  

## Section 5.10        **Maximum Capitalization Ratio**. The Borrower will maintain the Capitalization Ratio of the ConsolidatedGroup 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 Groupat not less than: (a) $35,000,000 as of each Fiscal Year-end of theBorrower; and (b) $15,000,000 as of each Covenant Compliance Date thatdoes not constitute a Fiscal Year-end.

##  

## Section 5.12        **Title Insurance Policy**. Not later than sixty days after the Closing Date, the Borrower shalldeliver to the Administrative Agent an endorsement to the mortgagee’s titlepolicy, insuring the priority of the Primary Mortgage, reflecting recording ofthe Third Modification Agreement to Restated Mortgage and Security AgreementMortgage Short-Term Redemption as executed by the Borrower and the FirstAmendment to Mortgage and Security Agreement as executed by the Guarantor, andupdating title to the date of delivery of such endorsement.

##  

# **ARTICLE VI**

# **NEGATIVE COVENANTS**

# ** **

So long as any Obligations (other than contingent indemnityobligations) remain unpaid or any Facility remains outstanding, the Borrowerwill comply with the following requirements, unless the Required Lenders (orthe Administrative Agent, with the consent of the Required Lenders) shallotherwise consent in writing:

 

## Section 6.1**           Liens. **The Borrower will not, and will notpermit any other Obligor to, create, incur or suffer to exist any Lien or othercharge or encumbrance of any nature on any of its assets, now owned orhereafter acquired, or assign or otherwise convey any right to receive incomeor give its consent to the subordination of any right or claim of any Obligorto any right or claim of any other Person; excluding from the operation of theforegoing (collectively, the**“Permitted Liens”**):

##  

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

 

(b)           Liens for taxes orassessments or other governmental charges to the extent not required to be paidby Section 5.4;

 

(c)           materialmen’s,merchants’, carriers’, worker’s, repairer’s, landlord’s, warehouseman’s orother like liens arising in the ordinary course of business to the extent notrequired to be paid by Section 5.4;

 

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(d)           pledges or deposits tosecure obligations under worker’s compensation laws, unemployment insurance andsocial security laws, or to secure the performance of bids, tenders, contracts(other than for the repayment of borrowed money) or leases or to securestatutory 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 minorirregularities in title thereto, which do not materially impair the use of suchproperty in the operation of the business of any Obligor or the value of suchproperty for the purpose of such business;

 

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

 

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

 

(h)           purchase money Liens,provided that:

 

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

####  

#### (ii)           the aggregate principalamount of the Debt secured by any such Lien shall not exceed the cost of suchproperty so acquired in connection therewith;

####  

(i)            bankers’ liens, rightsof set off or similar rights as to accounts maintained with a financialinstitution;

 

(j)            Liens to secureCommodity Credit Corporation Loans; and

 

(k)           any judgment Liensrelating 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 arisinghereunder;

 

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

 

(c)           Debt of an Obligorsecured 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 toexceed $4,000,000;

 

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(d)           Rate HedgingArrangements;

 

(e)           Commodity CreditCorporation Loans; and

 

(f)            commercial paperissued 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 inconnection with any obligations of any other Person, except:

##  

(a)           the Guaranties;

 

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

 

(c)           guaranties,endorsements and other direct or contingent liabilities in connection with theobligations of other Persons in existence on the Closing Date and listed inSchedule 6.3; together with anyextension, renewal or replacement thereof (so long as such indebtedness is notincreased above the amount outstanding immediately prior to giving effect toany such extension, renewal or replacement).

 

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

##  

(a)           Investments in directobligations of the United States of America or any agency or instrumentalitythereof whose obligations constitute the full faith and credit obligations ofthe United States of America having a maturity of 1 year or less, commercialpaper 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, Investmentsin money market mutual funds whose underlying assets are exclusivelyInvestments which would otherwise be permitted Investments under this Section 6.4(a), or repurchase agreements, certificatesof deposit or bankers’ acceptances having a maturity of 1 year or less issuedby members of the Federal Reserve System having deposits in excess of$500,000,000 (which certificates of deposit or bankers’ acceptances are fullyinsured by the Federal Deposit Insurance Corporation);

 

(b)           trade credit extendedin the ordinary course of business;

 

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

 

(d)           Investments by anyObligor in another Obligor or any joint venture or similar arrangements inwhich such Obligor has an interest as set forth in Schedule 6.4, includingintercompany transfers, advances, loans, guarantees or other financialaccommodations;

 

(e)           other Investments ofthe Obligors in existence on the Closing Date,****asset forth and described in Schedule 6.4;

 

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(f)            other Investments nototherwise permitted under this Section 6.4in an aggregate amount not to exceed $7,500,000 made and funded during eachFiscal 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 anyRestricted Payments if a Default or Event of Default shall then exist or wouldexist 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 itsSubsidiaries to issue or sell any shares of any class of such Subsidiary’sCapital Stock to any other Person (other than to the Borrower or a wholly-ownedSubsidiary of the Borrower);

 

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

 

(c)           permit any of itsSubsidiaries to sell, transfer or otherwise dispose of any shares of any classof 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 permitany other Obligor to, enter into or be a party to any transaction with anyAffiliate of any such Obligor except in the ordinary course of, and pursuantto, the reasonable requirements of such Obligor’s business and upon fair andreasonable terms that are no less favorable to such Obligor than would beobtained in a comparable arms-length transaction with a Person not an Affiliateof such Obligor.

##  

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

##  

(a)           the sale of Inventoryin the ordinary course of business;

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

## Section 6.9           **Sale and Leaseback**.  The Borrower will not, and will not permitany other Obligor to, enter into any arrangement, directly or indirectly, withany other Person whereby any Obligor shall sell or transfer any real orpersonal property, whether now owned or hereafter acquired, and then orthereafter rent or lease as lessee such property or any part thereof or anyother property that an Obligor intends to use for substantially the samepurpose or purposes as the property being sold or transferred.

##  

## Section 6.10        **Restrictions on Nature of Business**.  The Borrower will not, and will not permitany other Obligor to, engage in any line of business materially different fromthat presently engaged in by the Borrower or any such Obligor and will not, andwill not permit any other Obligor to, purchase, lease or otherwise acquireassets not related to its business.

##  

## Section 6.11        **Accounting**.  TheBorrower will not, and will not permit any other Obligor to, adopt any materialchange 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 anychange 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 otherObligor to cause or permit, any Hazardous Substances to be disposed of in anymanner that might result in any material liability to any Obligor on, under orat any real property that is operated by any Obligor or in which any Obligorhas any interest.

##  

## Section 6.13        **Subordinated Debt**.  TheBorrower will not, and will not permit any other Obligor to, issue anySubordinated Debt without first obtaining the prior written consent of theRequired Lenders (it being understood that the Subordinated Debt set forth anddescribed 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 anyprincipal, interest or fees due under or acquire any Subordinated Debt inviolation of the Subordination Agreement or the subordination provisionsapplicable thereto or prepay, purchase or otherwise acquire any SubordinatedDebt; (b) give security for all or any part of any Subordinated Debt unlesssuch security is expressly permitted and contemplated under the relevantSubordination Agreement or the subordination provisions applicable thereto; (c) takeany action whereby the subordination of any Subordinated Debt or any partthereof to the Obligations might be terminated, impaired or adversely affected;(d) omit to give the Administrative Agent prompt written notice of anydefault under any Subordinated Debt of which the Borrower has Knowledge byreason whereof any Subordinated Debt might become or be declared to beimmediately due and payable; (e) amend, supplement or otherwise modify anyterms or provisions of any documents evidencing or securing any SubordinatedDebt without first obtaining the prior written consent of the Required Lenders.

##  

## Section 6.14        **Tax Consolidation**.  TheBorrower will not, and will not permit any other Obligor to, file or consent tothe filing of, any consolidated income tax return with any Person other than aSubsidiary of any Obligor or the Borrower.

##  

## Section 6.15        **Negative Pledges, Restrictive Agreements, etc**.  The Borrower will not, and will not permitany other Obligor to, enter into any agreement (excluding this Agreement andany 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 otherthan the Administrative Agent, other than the Permitted Liens; (b) prohibitthe creation or assumption of any Lien in favor of the Administrative Agentupon such Obligor’s properties, revenues or assets, whether now owned orhereafter acquired, or the ability of any Obligor to amend or otherwise modifyany Loan Document; or (c) prohibit the ability of any Obligor (other thanthe Borrower) to make any payments directly or indirectly to the Borrower, byway of dividends, advances, repayments of loans or advances, reimbursements ofmanagement and any other intercompany charges, expenses and accruals or otherreturns on investments, or any other agreement or arrangement that restrictsthe ability of any such Obligor to make any payment, directly or indirectly, tothe Borrower.

##  

## Section 6.16        **Inconsistent Agreements**. The Borrower will not, and will not permit any other Obligor to, enterinto any agreement or arrangement that is inconsistent with the obligations ofany 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 ofDefault”**, wherever used herein, means any one of the followingevents:

##  

(a)           Default in the paymentof any principal of any Loan when it becomes due and payable, including but notlimited to any such payment becoming due and payable under Section 2.12(i), and the continuation of such defaultfor more than 5 Business Days.

 

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

 

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

 

(d)           Default in theperformance, or breach, of any covenant or agreement of the Borrower in thisAgreement (other than a covenant or agreement a default in whose performance orwhose 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 (otherthan a covenant or agreement a default in whose performance or whose breach isspecifically dealt with elsewhere in this Section 7.1), and, in each case, the continuance of such default or breachfor a period of 30 calendar days after any Obligor has Knowledge thereof.

 

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

 

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

 

(g)           Any representation orwarranty made by any Obligor in any Loan Document or by the Borrower (or any ofits officers) in any request for a Credit Extension, or in any othercertificate, instrument, or statement contemplated by or made or deliveredpursuant to or in connection with any Loan Document, shall prove to have beenincorrect in any material respect when made.

 

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

 

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

 

(j)            Maturity of anymaterial interest-bearing Debt of any Obligor (other than Debt under thisAgreement) shall be accelerated, or any Obligor shall fail to pay any suchmaterial Debt when due (after the lapse of any applicable grace period) or, inthe case of such Debt payable on demand, when demand (after the lapse of anyapplicable grace period), or any event shall occur or condition shall exist andshall continue for more than the period of grace, if any, applicable theretoand shall have the effect of causing, or permitting the holder of any such Debtor any trustee or other Person acting on behalf of such holder to cause, suchmaterial Debt to become due prior to its stated maturity or to realize upon anycollateral 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 toany item of Debt or in the aggregate for all items of Debt with respect towhich any of the events described in this subsection (j) has occurred, and Debtof an Obligor shall not include Commodity Credit Corporation Loans so long assuch Commodity Credit Corporation Loans constitute non-recourse Debt of anObligor.

 

(k)           Any Guarantor shall attemptto reject, terminate or rescind its Guaranty or any Security Document to whichit is a party or shall contest in any manner the validity, binding nature orenforceability 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 faithmay constitute grounds for the termination of any Pension Plan or for theappointment by the appropriate United States District Court of a trustee toadminister any Pension Plan, shall have occurred and be continuing 30 daysafter written notice to such effect shall have been given to the Borrower bythe Administrative Agent; or a trustee shall have been appointed by anappropriate United States District Court to administer any Pension Plan; or thePension Benefit Guaranty Corporation shall have instituted proceedings toterminate any Pension Plan or to appoint a trustee to administer any PensionPlan; or any Obligor or any of its ERISA Affiliates shall have filed for adistress termination of any Pension Plan under Title IV of ERISA; or anyObligor or any of its ERISA Affiliates shall have failed to make any quarterlycontribution required with respect to any Pension Plan under Section 412(m) ofthe Code, which the Administrative Agent or the Required Lenders determine ingood faith may by itself, or in combination with any such failures that theAdministrative Agent or the Required Lenders may determine are likely to occurin the future, result in the imposition of a Lien on any Obligor’s assets infavor of the Pension Plan; or any withdrawal, partial withdrawal,reorganization or other event occurs with respect to a Multi-Employer Planwhich results or could reasonably be expected to result in a material liabilityof any Obligor to the Multi-Employer Plan under Title IV of ERISA.

 

(m)          Any Change of Controlshall occur.

 

(n)           Any Security Documentshall, at any time, cease to be in full force and effect or shall be judiciallydeclared null and void, or the validity or enforceability thereof shall becontested by any Obligor, or the Administrative Agent shall cease to have avalid and perfected security interest having the priority contemplatedthereunder in all of the collateral described therein, other than by action orinaction of the Administrative Agent, if (i) the aggregate value of thecollateral affected by any of the foregoing exceeds $1,000,000, and (ii) anyof the foregoing shall remain unremedied for 20 calendar days after any Obligorhas Knowledge thereof.

 

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

##  

(a)           By notice to theBorrower, declare the Commitments to be terminated, whereupon the same shallforthwith terminate.

 

(b)           By notice to theBorrower, declare the entire unpaid principal amount of the Loans, all interestaccrued and unpaid thereon, and all other amounts payable under this Agreementto be forthwith due and payable, whereupon the Loans, all such accrued interestand all such amounts shall become and be forthwith due and payable, withoutpresentment, demand, protest or further notice of any kind, all of which arehereby expressly waived by the Borrower.

 

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

 

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

 

(e)           Apply for theemployment of, or taking possession by, a trustee, receiver, liquidator orother similar official of the Borrower to hold or liquidate all or anysubstantial part of the properties or assets of the Borrower.

 

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

 

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

 

Notwithstanding the foregoing, upon theoccurrence of an Event of Default described in Section 7.1(e) or (f), the entire unpaid principalamount of the Loans, all interest accrued and unpaid thereon, and all otheramounts payable under this Agreement shall be immediately due and payablewithout presentment, demand, protest or notice of any kind.  Notwithstanding any other provision of theLoan Documents, no Lender Party (other than the Administrative Agent) mayindividually exercise any rights under or with respect to the Loan Documentsthat arise after an Event of Default without the consent of the RequiredLenders.

 

## Section 7.3           **Right of Setoff**.  If an Event of Default shall have occurredand shall be continuing, each Lender Party and each of their Affiliates ishereby authorized at any time and from time to time, to the fullest extentpermitted by applicable law, to set off and apply any and all deposits (generalor special, including but not limited to Indebtedness evidenced by certificatesof deposit, whether matured or unmatured, but excluding any deposits held inescrow or pursuant to a fiduciary obligation on behalf of or for the benefit ofthird parties) at any time held and other obligations (in whatever currency) atany time owing by such Lender Party or any such Affiliate to or for the creditor the account of any Obligor against any and all of the obligations of suchObligor now or hereafter existing under this Agreement or any other LoanDocument to such Lender Party or any such Affiliate, irrespective of whether ornot such Lender Party shall have made any demand under this Agreement or anyother Loan Document and although such obligations of such Obligor may becontingent or unmatured or are owed to a branch or office of such Lender Partydifferent from the branch or office holding such deposit or obligated on suchindebtedness.  The rights of each LenderParty and its Affiliates under this Section are in addition to other rights andremedies (including other rights of setoff) that such Lender Party or itsAffiliates may have.

 

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# **ARTICLE VIII**

# **AGREEMENT AMONG LENDERS AND ADMINISTRATIVE AGENT**

# ** **

## Section 8.1           **Authorization; Powers; Administrative Agent forCollateral Purposes**.  EachLender irrevocably appoints and authorizes the Administrative Agent to act asadministrative agent for and on behalf of such Lender to the extent providedherein, in any Loan Documents or in any other document or instrument deliveredhereunder or in connection herewith, and to take such other actions as may bereasonably incidental thereto.  TheAdministrative Agent agrees to act as administrative agent for each Lender uponthe express conditions contained in this Article VIII, but in no event shallthe Administrative Agent constitute a fiduciary of any Lender, nor shall theAdministrative Agent have any fiduciary responsibilities in respect of anyLender.  In furtherance of the foregoing,and not in limitation thereof, each Lender irrevocably (a) authorizes theAdministrative Agent to execute and deliver and perform those obligations undereach of the Loan Documents to which the Administrative Agent is a party as arespecifically 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) appointsthe Administrative Agent as nominal beneficiary or nominal secured party, asthe case may be, under the Loan Documents and all related UCC financingstatements; and (c) authorizes the Administrative Agent to act ascollateral agent of and for such Lender for purposes of holding, perfecting anddisposing of Collateral under the Loan Documents.  As to any matters not expressly provided forby the Loan Documents, the Administrative Agent shall not be required toexercise any discretion or take any action, but shall be required to act or torefrain from acting (and shall be fully protected in so acting or refrainingfrom acting) upon the instructions of the Required Lenders or, if so requiredpursuant to Section 9.2, upon theinstructions of all Lenders; provided, however, that except for actionexpressly required of the Administrative Agent hereunder, the AdministrativeAgent shall in all cases be fully justified in failing or refusing to acthereunder unless it shall be indemnified to its satisfaction by the Lendersagainst any and all liability and expense which may be incurred by it by reasonof taking or continuing to take any such action, and the Administrative Agentshall not in any event be required to take any action which is contrary to theLoan Documents or applicable law.

##  

## Section 8.2           **Application of Proceeds**.  The Administrative Agent, after deduction ofany costs of collection, as provided in Section 8.5,shall remit to each Lender (to the extent a Lender is to share therein) suchLender’s pro rata share of all payments of principal, interest and fees payablehereunder in accordance with such Lender’s applicable Percentage.  Notwithstanding anything to the contrary inthis Agreement or any other Loan Document, (a) all payments received bythe Administrative Agent or any Lender prior to the occurrence of an Event ofDefault in respect of Rate Hedging Obligations shall be remitted directly tothe appropriate counterparty with respect to such Rate Hedging Obligations andno other Lender shall be entitled to any portion thereof; and (b) all amountsreceived by the Administrative Agent or any Lender after the occurrence of anEvent of Default shall be shared by the Lenders in accordance with the applicablePercentage of each Lender, irrespective of the Collateral from which suchpayments are derived or the Facility to which they may relate.  Each Lender’s interest under the LoanDocuments shall be payable solely from payments, collections and proceeds actuallyreceived by the Administrative Agent under the Loan Documents; and theAdministrative Agent’s only liability to a Lender with respect to any suchpayments, collections

 

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## and proceeds shall be to account for suchLender’s Percentage of such payments, collections and proceeds in accordancewith this Agreement.  If theAdministrative 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, togetherwith its Percentage of interest or penalties, if any, payable by theAdministrative 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 Lendersuntil such payments have reduced the aggregate amounts owed by the Borrower tothe extent that the aggregate amount of the Advances owing to such DefaultingLender hereunder are equal to its Percentage of the aggregate amounts of theAdvances owing under the applicable Facility to all of the Lendershereunder.  The foregoing provision isintended only to set forth certain rules for the application of payments,proceeds and collections in the event that a Lender has breached itsobligations hereunder and shall not be deemed to excuse any Lender from suchobligations.

##  

## Section 8.3           **Exculpation**.  The Administrative Agent shall not be liablefor any action taken or omitted to be taken by the Administrative Agent inconnection with the Loan Documents, except for its own gross negligence orwillful misconduct.  The AdministrativeAgent shall be entitled to rely upon advice of counsel concerning legalmatters, the advice of independent public accountants with respect toaccounting matters and advice of other experts as to any other matters and uponany Loan Document and any schedule, certificate, statement, report, notice orother writing which it reasonably believes to be genuine or to have beenpresented by a proper Person.  Neitherthe Administrative Agent nor any of its Directors, officers, employees oragents 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 otherinstrument or document delivered hereunder or in connection herewith; (b) thevalidity, genuineness, perfection, effectiveness, enforceability, existence, valueor enforcement of any Collateral; or (c) any action taken or omitted byit.  The designation of CoBank asadministrative agent hereunder shall in no way impair or affect any of therights and powers of, or impose any duties or obligations upon, CoBank in itsindividual capacity as a Lender hereunder.

##  

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

##  

## Section 8.5           **Reimbursement for Costs and Expenses**.  All payments, collections and proceedsreceived or effected by the Administrative Agent may be applied first to pay orreimburse the Administrative Agent for all reasonable costs and expenses at anytime incurred by or imposed upon the Administrative Agent in connection withthis Agreement or any other Loan Document (including but not limited to allreasonable attorney’s fees (including allocated costs of in-house counsel),foreclosure expenses and advances made to protect the security of anyCollateral, but excluding any costs, expenses, damages or liabilities arisingfrom the gross negligence or willful misconduct of the AdministrativeAgent).  If the Administrative

 

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

##  

## Section 8.6           **Payments Received Directly by Lenders**.  If any Lender shall obtain any payment orother recovery (whether voluntary, involuntary, by application of offset orotherwise) on account of any Obligations (other than through distributions madein accordance with Section 8.2hereof) in excess of such Lender’s applicable Percentage with respect thereto,such Lender shall promptly give notice of such fact to the Administrative Agentand shall promptly remit to the Administrative Agent such amount as shall benecessary to cause the remitting Lender to share such excess payment or otherrecovery ratably with each of the Lenders in accordance with their respectivePercentages, together with interest for each day on such amount until soremitted 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 isthereafter recovered from such remitting Lender or holder, the remittance shallbe restored to the extent of such recovery.

##  

## Section 8.7           **Administrative Agent and Affiliates**.  CoBank shall have the same rights and powersin its capacity as a Lender hereunder as any other Lender, and may exercise orrefrain from exercising the same as though it were not the Administrative Agenthereunder, and CoBank and its affiliates may accept deposits from and generallyengage in any kind of business with any Obligor or any Affiliate of any Obligoras fully as if CoBank were not the Administrative Agent hereunder.

##  

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

##  

## Section 8.9           **Defaults**. The Administrative Agent shall have no duty to inquire into anyperformance or failure to perform by the Borrower and shall not be deemed tohave knowledge of the occurrence of a Default or an Event of Default (otherthan under Section 7.1(a) or 7.1(b)) hereof unless the Administrative Agenthas received notice from a Lender Party or the Borrower specifying theoccurrence of such Default or Event of Default. If the Administrative Agent receives such a notice of the occurrence ofa Default or an Event of Default, the Administrative Agent shall give promptnotice thereof to the Lenders.  In theevent of any

 

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

##  

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

##  

## Section 8.11**        Resignation and Assignmentof Administrative Agent.**

##  

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

 

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

 

(c)           Upon the acceptance ofany appointment as Administrative Agent hereunder by a successor AdministrativeAgent, such successor Administrative Agent shall thereupon be entitled toreceive from the prior Administrative Agent such documents of transfer andassignment as such successor Administrative Agent may reasonably request andthe resigning or assigning Administrative Agent shall be discharged from itsduties and obligations under this Agreement to be performed after the

 

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

 

## Section 8.12        **Lead Arranger and Syndication Agent**.  Any Lender identified on the title page tothis Agreement as “Lead Arranger” or “Syndication Agent” shall have no right,power, obligation or liability under this Agreement or any other Loan Documentother than those applicable to all Lenders as such.  Each Lender acknowledges that it has notrelied, and will not rely, on any Lender so identified in deciding to enterinto 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 ofliability applicable to the Lenders under Section 8.10 and approval rights with respect to any successorAdministrative Agent under Section 8.11, the provisions and agreements inthis Article VIII are solely among the Lender Parties, and the Borrowershall 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 LenderParty in exercising any right, power or remedy under the Loan Documents shalloperate as a waiver thereof; nor shall any single or partial exercise of anysuch right, power or remedy preclude any other or further exercise thereof orthe exercise of any other right, power or remedy under the Loan Documents.  The remedies provided in the Loan Documentsare cumulative and not exclusive of any remedies provided by law.

##  

## Section 9.2           **Amendments, Requested Waivers, Etc**.  No amendment, modification, termination orwaiver of any provision of any Loan Document or consent to any departure by theBorrower therefrom shall be effective unless the same shall be in writing andsigned by the Required Lenders and, if the rights or duties of theAdministrative Agent or the Letter of Credit Issuer are affected thereby, bythe Administrative Agent or the Letter of Credit Issuer, as the case may be;provided, however, that no amendment, modification, termination, waiver orconsent shall do any of the following unless the same shall be in writing andsigned by the Administrative Agent and each Lender affected thereby (and, as toclauses (d), (e) , (f), (g) and (i) hereof, all Lenders shall bedeemed affected): (a) change the amount of any Commitment (except as permittedin accordance with Section 9.3(b)); (b) reducethe amount of any principal of or interest due on any Advances, the Unused Feesor any Letter of Credit Fees payable to a Lender hereunder; (c) postpone anydate fixed for any payment of principal of or interest on any outstandingAdvances or the Unused Fees or Letter of Credit Fees payable to a Lenderhereunder; (d) change the definition of “Required Lenders”; (e) changethe definition of “Borrowing Base” or the definition used in calculationsthereof;  (f) amend this Section 9.2 or any other provision of this Agreementrequiring the consent or other action of the Required Lenders or any particularLender; (g) release any Guaranty; (h) waive any Default or Event ofDefault; or (i) release, subordinate or terminate any Lien in all orsubstantially all of the Collateral.  Anywaiver or consent given hereunder shall be effective only in the specificinstance

 

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## and for the specific purpose for whichgiven.  No notice to or demand on theBorrower in any case shall entitle the Borrower to any other or further noticeor demand in similar or other circumstances.

##  

## Section 9.3**           Successors and Assigns;Register.**

##  

(a)           Successors and Assigns Generally.  The provisions of this Agreement shall bebinding upon and inure to the benefit of the parties hereto and theirrespective successors and assigns permitted hereby, except that the Borrowermay not assign or otherwise transfer any of its rights or obligations hereunderwithout the prior written consent of the Administrative Agent and each Lender,and no Lender may assign or otherwise transfer any of its rights or obligationshereunder, except (i) to an assignee in accordance with the provisions ofparagraph (b) of this Section; (ii) by way of participation inaccordance with the provisions of paragraph (d) of this Section; or (iii) byway of pledge or assignment of a Lien subject to the restrictions of paragraph (f) ofthis Section (and any other attempted assignment or transfer by any partyhereto shall be null and void).  Nothingin this Agreement, express or implied, shall be construed to confer upon anyPerson (other than the parties hereto, their respective successors and assignspermitted hereby, Participants to the extent provided in paragraph (d) of this Section and,to the extent expressly contemplated hereby, the Affiliates of each of theAdministrative Agent and the Lenders) any legal or equitable right, remedy orclaim under or by reason of this Agreement.

 

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

 

#### (i)            *MinimumAmounts*.

#####  

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

#####  

##### (B)          In any case notdescribed in paragraph (b)(i)(A) of this Section, the aggregate amount ofthe Commitment (which for this purpose includes Loans outstanding thereunder)or, if the applicable Commitment is not then in effect, the principaloutstanding balance of the Loans of the assigning Lender subject to each suchassignment (determined as of the date the Assignment and Assumption with respectto 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 notbe less than $5,000,000.

#####  

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

 

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#### obligationsunder this Agreement with respect to the Loans and the Commitment assigned.

####  

#### (iii)          *Required Consents*.  No consent shall be required for anyassignment except as follows:

####  

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

#####  

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

#####  

##### (C)          The consent of theLetter of Credit Issuer (such consent not to be unreasonably withheld ordelayed) shall be required for any assignment that increases the obligation ofthe 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 executeand deliver to the Administrative Agent an Assignment and Assumption, togetherwith a processing and recordation fee of $3,500, and the assignee, if it is nota Lender, shall deliver to the Administrative Agent an AdministrativeQuestionnaire.

####  

#### (v)           *No*Assignment*to Borrower*.  No suchassignment 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 naturalperson.

####  

Subject to acceptance and recording thereof by the Administrative Agentpursuant to paragraph (c) of this Section, from and after the effectivedate specified in each Assignment and Assumption, the assignee thereunder shallbe a party to this Agreement and, to the extent of the interest assigned bysuch Assignment and Assumption, have the rights and obligations of a Lenderunder this Agreement, and the assigning Lender thereunder shall, to the extentof the interest assigned by such Assignment and Assumption, be released fromits obligations under this Agreement (and, in the case of an Assignment andAssumption covering all of the assigning Lender’s rights and obligations underthis Agreement, such Lender shall cease to be a party hereto) but shallcontinue to be entitled to the benefits of Sections 2.18(a) and 9.6 with respect to facts and circumstances occurring prior to theeffective date of such assignment.  Anyassignment or transfer by a Lender of rights or obligations under thisAgreement that does not comply with this paragraph shall be treated forpurposes of this Agreement as a sale by

 

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suchLender of a participation in such rights and obligations in accordance withparagraph (d) of this Section.

 

(c)           Register.  The Borrower hereby designates theAdministrative Agent to serve as the Borrower’s agent, solely for purposes ofthis Section 9.3(c), to maintain aregister (the **“Register”**) on which it willrecord the Commitments from time to time of each of the Lenders, the Loans madeby each of the Lenders and each repayment in respect of the principal amount ofthe Loans of each Lender.  Failure tomake any such recordation, or any error in such recordation, shall not affectthe Borrower’s obligations in respect of such Loans.  With respect to any Lender, the transfer ofany Commitment of such Lender and the rights to the principal of, and intereston, any Loan shall not be effective until such transfer is recorded on theRegister maintained by the Administrative Agent with respect to ownership ofsuch Commitment and Loans and prior to such recordation all amounts owing tothe transferor with respect to such Commitment and Loans shall remain owing tothe transferor.  The registration ofassignment or transfer of all or part of any Commitment or Loan shall berecorded by the Administrative Agent on the Register only upon the acceptanceby the Administrative Agent of a properly executed and delivered Assignment andAssumption Agreement pursuant to Section 9.3(b).  Coincident with the delivery of such anAssignment and Assumption Agreement to the Administrative Agent for acceptanceand registration of assignment or transfer of all or part of a Loan, or as soonthereafter as practicable, the assigning or transferor Lender shall surrenderthe Note (if any) evidencing such Commitment, and thereupon one or more newNotes in the same aggregate principal amount shall be issued to the assigningor 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 anyand all losses, claims, damages and liabilities of whatsoever nature which maybe imposed on, asserted against or incurred by the Administrative Agent inperforming its duties under this Section 9.3(c),except as may result or arise from the Administrative Agent’s own grossnegligence or willful misconduct.

 

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

 

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

 

(e)           Limitationsupon Participant Rights.  AParticipant shall not be entitled to receive any greater payment under Sections2.18 and 2.19than the applicable Lender would have been entitled to receive with respect tothe participation sold to such Participant, unless the sale of theparticipation to such Participant is made with the Borrower’s prior writtenconsent.  A Participant that would be aForeign Lender if it were a Lender shall not be entitled to the benefits of Section 2.19 unless the Borrower is notified of theparticipation sold to such Participant and such Participant agrees, for thebenefit of the Borrower, to comply with Section 2.19(e) as though it were a Lender.

 

(f)            CertainPledges.  Any Lender may atany time pledge or assign a Lien in all or any portion of its rights under thisAgreement to secure obligations of such Lender, including any pledge orassignment to secure obligations to a Federal Reserve Bank; provided that nosuch pledge or assignment shall release such Lender from any of its obligationshereunder or substitute any such pledgee or assignee for such Lender as a partyhereto.

 

(g)           Certain Rightsof Farm Credit Lender Participants. Notwithstanding anything in this Section 9.3 to the contrary, any Farm Credit Lender that (i) is theowner of a participation in a Commitment (including Loans outstandingthereunder) initially in the amount of at least $5,000,000; (ii) is, bywritten notice to the Borrower and the Administrative Agent (a **“Voting Participant Notification”**), designated by theselling Lender as being entitled to be accorded the rights of a votingparticipant hereunder (any Farm Credit Lender so designated being called a **“Voting Participant”**); and (iii) receives the priorwritten consent of the Borrower (unless an Event of Default has occurred and iscontinuing) and the Administrative Agent to become a Voting Participant, shallbe entitled to vote for so long as such Farm Credit Lender owns suchparticipation and notwithstanding any subparticipation by such Farm CreditLender (and the voting rights of the selling Lender shall be correspondinglyreduced), 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 itsconsent, or to otherwise vote on any proposed action.

 

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Notwithstandingthe foregoing, each Farm Credit Lender designated as a Voting Participant in Exhibit O hereto shall be a Voting Participant withoutdelivery of a Voting Participant Notification and without the prior writtenconsent of the Borrower and the Administrative Agent.  To be effective, each Voting ParticipantNotification shall, with respect to any Voting Participant, (A) state thefull name, as well as all contact information required for an assignee in theAssignment and Assumption; and (B) state the dollar amount of theparticipation purchased.  The sellingLender and the Voting Participant shall notify the Administrative Agent and theBorrower within three (3) Business Days of any termination of, reductionor increase in the amount of, such participation.  The Borrower and the Administrative Agentshall be entitled to conclusively rely on information contained in notices deliveredpursuant to this subsection (g).  Thevoting rights hereunder are solely for the benefit of the Voting Participantsand 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 rightof setoff or counterclaim or otherwise, obtain payment in respect of anyprincipal of or interest on any of its Loans or other obligations hereunderresulting in such Lender’s receiving payment of a proportion of the aggregateamount of its Loans and accrued interest thereon or other such obligationsgreater than its pro rata share thereof as provided herein, then the Lenderreceiving such greater proportion shall (a) notify the AdministrativeAgent of such fact; and (b) purchase (for cash at face value)participations in the Loans and such other obligations of the other Lenders, ormake such other adjustments as shall be equitable, so that the benefit of allsuch payments shall be shared by the Lenders ratably in accordance with theaggregate amount of principal of and accrued interest on their respective Loansand other amounts owing them, provided that:

##  

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

####  

#### (ii)           theprovisions of this paragraph shall not be construed to apply to (A) anypayment made by the Borrower pursuant to and in accordance with the expressterms of this Agreement; or (B) any payment obtained by a Lender asconsideration for the assignment of or sale of a participation in any of itsLoans or participations in Letter of Credit Exposure to any assignee orparticipant, other than to the Borrower or any Subsidiary thereof (as to whichthe provisions of this paragraph shall apply).

####  

TheBorrower consents to the foregoing and agrees, to the extent it may effectivelydo so under applicable law, that any Lender acquiring a participation pursuantto the foregoing arrangements may exercise against each Obligor rights ofsetoff and counterclaim with respect to such participation as fully as if suchLender were a direct creditor of each Obligor in the amount of suchparticipation.

 

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## Section 9.5**            Notices; Distribution of InformationVia Electronic Means.**

 

(a)           Use of Platform to Distribute Communications.  The Administrative Agent may make anymaterial delivered by the Borrower to the Administrative Agent, as well as anyamendments, waivers, consents, and other written information, documents,instruments and other materials relating to the Borrower, or any of itsSubsidiaries, 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 postingsuch notices on an electronic delivery system such as IntraLinks or asubstantially similar electronic system (the **“Platform”**).  The Borrower acknowledges that (i) thedistribution of material through an electronic medium is not necessarily secureand that there are confidentiality and other risks associated with suchdistribution; (ii) the Platform is provided “as is” and “as available”;and (iii) neither the Administrative Agent nor any of its Affiliateswarrants the accuracy, completeness, timeliness, sufficiency, or sequencing ofthe Communications posted on the Platform. The Administrative Agent and itsAffiliates expressly disclaim with respect to the Platform any liability forerrors in transmission, incorrect or incomplete downloading, delays in postingor delivery, or problems accessing the Communications posted on the Platformand any liability for any losses, costs, expenses or liabilities that may besuffered or incurred in connection with the Platform.  No warranty of any kind, express, implied orstatutory, including any warranty of merchantability, fitness for a particularpurpose, non-infringement of third party rights or freedom from viruses orother code defects, is made by the Administrative Agent or any of itsAffiliates in connection with the Platform.

 

(b)           Notice by Electronic Means.  Each Lender agrees (i) on or before thedate it becomes a party to this Agreement, to notify the Administrative Agentin 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 thereafterto ensure that the Administrative Agent has on record an effective e-mailaddress for it; and (ii) that any Notice may be sent to such e-mailaddress(es).  Each Lender agrees that ane-mail message notice to it (as provided in the previous sentence) specifyingthat any Communication has been posted to the Platform shall for purposes ofthis Agreement constitute effective delivery to such Lender of suchinformation, documents or other materials comprising such Communication.

 

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

 

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## Section 9.6**           Expenses; Indemnity; Damage Waiver.**

##  

(a)           Costs andExpenses.  The Borrower shallpay (i) all reasonable out-of-pocket expenses incurred by theAdministrative Agent and its Affiliates (including the reasonable fees, chargesand disbursements of counsel for the Administrative Agent and specificallyincluding allocated costs of in house counsel), in connection with thesyndication of the credit facility provided for herein and the preparation,negotiation, execution, delivery and administration of this Agreement and theother Loan Documents or any amendments, modifications or waivers of theprovisions hereof or thereof (whether or not the transactions contemplatedhereby or thereby shall be consummated); (ii) all out-of-pocket expensesincurred by the Administrative Agent or any Lender after the occurrence andduring the continuance of an Event of Default in connection with any audits orinspections of any Collateral or the operations or business of any Obligor; and(iii) all out-of-pocket expenses incurred by the Administrative Agent orany Lender (including the fees, charges and disbursements of any counsel forthe Administrative Agent or any Lender and specifically including allocatedcosts of in house counsel) in connection with the enforcement or protection ofits rights (A) in connection with this Agreement and the other LoanDocuments, including its rights under this Section 9.6; or (B) in connection with the Obligations, including allsuch out-of-pocket expenses incurred during any workout, restructuring ornegotiations in respect of the Obligations.

 

(b)           Indemnificationby the Borrower.  The Borrowershall indemnify each Lender Party and each Affiliate of any Lender Party (eachsuch 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 anddisbursements of any counsel for any Indemnitee and specifically includingallocated costs of in house counsel) incurred by any Indemnitee or assertedagainst any Indemnitee by any third party or Obligor arising out of, inconnection with, or as a result of (i) the execution or delivery of thisAgreement, any other Loan Document or any agreement or instrument contemplatedhereby or thereby, the performance by the parties hereto of their respectiveobligations hereunder or thereunder or the consummation of the transactionscontemplated hereby or thereby; (ii) the Loans or the use or proposed useof the proceeds therefrom; (iii) any actual or alleged presence or releaseof Hazardous Substances on or from any property owned or operated by anyObligor or its Subsidiaries, or any liability arising from any alleged breachof Environmental Laws related in any way to any Obligor or its Subsidiaries; or(iv) any actual or prospective claim, litigation, investigation orproceeding relating to any of the foregoing, whether based on contract, tort orany other theory, whether brought by a third party or by any Obligor, andregardless of whether any Indemnitee is a party thereto, provided that suchindemnity shall not, as to any Indemnitee, be available to the extent that suchlosses, claims, damages, liabilities or related expenses (A) aredetermined by a court of competent jurisdiction by final and nonappealablejudgment to have resulted from the gross negligence or willful misconduct ofsuch Indemnitee; or (B) result from a claim brought by any Obligor againstan Indemnitee for breach of such Indemnitee’s obligations hereunder or underany other Loan Document, if such Obligor has obtained a final and nonappealablejudgment in its favor on such claim as determined by a court of competentjurisdiction.

 

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(c)           Reimbursementby Lenders.  To the extentthat the Borrower for any reason fails to indefeasibly pay any amount requiredunder paragraph (a) or (b) of this Section 9.6 to be paid by it to the AdministrativeAgent (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 suchsub-agent) or such Affiliate, as the case may be, such Lender’s Percentage (determinedas of the time that the applicable unreimbursed expense or indemnity payment issought) of such unpaid amount, provided that the unreimbursed expense orindemnified loss, claim, damage, liability or related expense, as the case maybe, was incurred by or asserted against the Administrative Agent (or any suchsub-agent) in its capacity as such, or against any Affiliate of any of theforegoing acting for the Administrative Agent (or any such sub-agent) inconnection with such capacity.  Theobligations of the Lenders under this paragraph (c) are subject tothe provisions of Section 8.10.

 

(d)           Waiver ofConsequential Damages, Etc*.*  To the fullest extent permitted by applicablelaw, neither the Borrower (as one party) nor the Administrative Agent and anyLender (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 actualdamages) arising out of, in connection with, or as a result of, this Agreement,any other Loan Document or any agreement or instrument contemplated hereby, thetransactions contemplated hereby or thereby, the Loans or the use of theproceeds thereof.  No party shall beliable for any damages arising from the use by unintended recipients of anyinformation or other materials distributed by it through telecommunications,electronic or other information transmission systems in connection with thisAgreement or the other Loan Documents or the transactions contemplated herebyor thereby.

 

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

 

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

 

## Section 9.7           **Replacement of Non-ConsentingLender**.  If any Lender (a **“Non-Consenting Lender”**) (i) demands compensationpursuant 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 Documentor provision thereof, which amendment or waiver requires unanimous consent ofall the Lenders, or all the Lenders with a Commitment for a particularFacility, in order to be effective; then the Administrative Agent may or theBorrower may (but neither shall be obligated to), upon notice to theNon-Consenting Lender (and the Administrative Agent, if applicable), requirethe Non-Consenting Lender to assign and delegate, without recourse (inaccordance with and subject to the restrictions contained in Section 9.3) all ofits interests, rights, duties and obligations under this Agreement and the LoanDocuments to an Eligible Lender that shall assume such obligations (whichassignee may be a Lender, if a Lender accepts such assignment); provided that:

 

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(a)           if it is an assignment at the requestof the Borrower, the Borrower shall have received the prior written consent ofthe 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 requestof the Administrative Agent and there is no Event of Default, the Borrowershall have consented to such assignment (and, if applicable, the Letter ofCredit Issuer) which consents shall not be unreasonably withheld,

 

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

 

(d)           the Non-Consenting Lender shall havereceived payment of an amount equal to the outstanding principal of its Loans,and participations in unreimbursed Letter of Credit Exposure, if any, accruedinterest thereon, accrued fees and all other amounts payable to it hereunderand under the other Loan Documents, from the Eligible Lender (to the extent ofsuch 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 tokeep confidential) all information, materials and documents furnished by anyObligor or any other Lender Party (the **“DisclosedInformation”**). Notwithstanding the foregoing, any Lender Party may disclose Disclosed Information (a) toany other Lender Party or any Affiliate of any Lender Party; (b) to legalcounsel, accountants and other professional advisors to such Lender Party; (c) toany regulatory body having jurisdiction over such Lender Party; (d) to theextent required by applicable laws and regulations or by any subpoena orsimilar legal process, or requested by any governmental agency or authority; (e) tothe extent such Disclosed Information (i) becomes publicly available otherthan as a result of a breach of this Agreement; (ii) becomes available tosuch Lender Party on a non-confidential basis from a source other than anObligor or a Subsidiary; or (iii) was available to such Lender Party on anon-confidential basis prior to its disclosure to such Lender Party by anObligor or a Subsidiary; or (f) to the extent (A)  the Obligor or anySubsidiary shall have consented to such disclosure in writing; (B) reasonably deemed necessary by any Lender Party in the enforcement of theremedies of the Lender Parties provided under the Loan Documents; or (C) necessary inconnection with any potential assignment or participation in the interestgranted hereunder, provided that any such potential assignee or participantshall have executed a confidentiality agreement imposing on such potentialassignee or participant substantially the same obligations as are imposed onthe 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 accordancewith, the laws of the State of Colorado (other than its conflicts of lawsrules), except to the extent the law of any other jurisdiction applies as tothe perfection or enforcement of the Lender Parties’ Lien in any Collateral andexcept to the extent expressly provided to the contrary in any Loan Document.

 

82

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(b)           Jurisdiction. The parties hereby irrevocably agree that any dispute arising under orin any way relating to this Agreement or any of the other Loan Documents shallbe litigated solely and exclusively in a state or federal court sitting inDenver, Colorado and in no other.  TheBorrower hereby agrees that if it attempts to commence any action regarding adispute arising under or in any way relating to this Agreement or any of theother Loan Documents in any court other than a state or federal court sittingin Denver, Colorado, the Administrative Agent or any Lender Party (at its soleand exclusive option) may obtain an immediate order dismissing such action forimproper venue or an order transferring venue to a state or federal courtsitting in Denver, Colorado.  TheBorrower hereby irrevocably submits to the personal jurisdiction of any stateor federal court sitting in Denver, Colorado in any action or proceedingarising out of or in any way relating to this Agreement or any of the otherLoan Documents and waives any defense of forum non conveniens.  The Borrower irrevocably consents to theservice of copies of the summons and complaint and any other process which maybe served in any such action or proceeding by the mailing of copies of suchprocess to the Borrower, certified mail, return receipt requested, at itsaddresses specified Section 9.5above.  The Borrower agrees that a finaljudgment in any such action or proceeding shall be conclusive and may beenforced in other jurisdictions by suit on the judgment or in any other mannerprovided by law.

 

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

##  

## Section 9.10        **Integration; Inconsistency**.  This Agreement, together with the LoanDocuments, comprise the final and complete integration of all prior expressionsby the parties hereto with respect to the subject matter hereof and shallconstitute the entire agreement among the parties hereto with respect to suchsubject matter, superseding all prior oral or written understandings.  If any provision of a Loan Document isinconsistent with or conflicts with a comparable or similar provision appearingin this Agreement, the comparable or similar provision in this Agreement shallgovern.

##  

## Section 9.11        **Agreement Effectiveness**.  This Agreement shall become effective upondelivery of fully executed counterparts hereof to each of the parties hereto.

##  

## Section 9.12        **Advice from Independent Counsel**.  The parties hereto understand that thisAgreement is a legally binding agreement that may affect such party’srights.  Each party hereto represents tothe others that it has received legal advice from counsel of its choiceregarding the meaning and legal significance of this Agreement and that it issatisfied with its legal counsel and the advice received from it.

##  

## Section 9.13        **Judicial Interpretation**.  Should any provision of this Agreementrequire judicial interpretation, it is agreed that a court interpreting orconstruing the same shall not apply a presumption that the terms hereof shallbe more strictly construed against any Person by reason of the rule ofconstruction that a document is to be construed more strictly against the 

 

83

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## Person who itself through its agent prepared the same, it being agreedthat 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 andinure to the benefit of the Borrower, the Lender Parties and their respectivesuccessors and assigns; provided, however, that the Borrower may not assign anyor all of its rights or obligations hereunder or any of its interest hereinwithout the prior written consent of the Required Lenders.

##  

## Section 9.15        **Severability of Provisions**.  Any provision of this Agreement which isprohibited or unenforceable shall be ineffective to the extent of suchprohibition or unenforceability without invalidating the remaining provisionshereof.

##  

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

##  

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

##  

## Section 9.18        **Customer Identification — USA Patriot Act Notice**.  The Administrative Agent hereby notifies theBorrower that pursuant to the requirements of the USA Patriot Act (Title III ofPub. L. 107-56, signed into law October 26, 2001) (the **“Act”**), and the Administrative Agent’spolicies and practices, each Lender is required to obtain, verify and recordcertain information and documentation that identifies each Obligor, whichinformation includes the name and address of each Obligor and such otherinformation that will allow each Lender to identify each Obligor in accordancewith the Act.

##  

## Section 9.19        **Borrower’s Acknowledgement and Agreement RegardingParticipations**.  The Borroweracknowledges and agrees that CoBank and the Farm Credit Lenders identified on Exhibit O (the **“InitialFarm Credit Participants”**) have entered into certain MasterNon-Recourse Participation Agreements (as may be amended, replaced, restated orsupplemented from time to time, the **“ParticipationAgreements”**), whereby a certain percentage of CoBank’s Commitmentand the Loans outstanding from time to time have been participated to theInitial Farm Credit Participants according to the terms of the ParticipationAgreements.  The Borrower and theAdministrative Agent hereby consent to the Initial Farm Credit Participantsbecoming Voting Participants in accordance with Section 9.3(g), and acknowledge that the inclusion ofthis Section 9.19 in this Agreementconstitutes receipt of the Voting Participant Notifications with respect to theInitial Farm Credit Participants as required by Section 9.3(g).

##  

## Section 9.20        **Farm Credit Lender Equities**.  Each party hereto acknowledges that eachLender that is a Farm Credit Lender has a statutory first lien on all of theObligors’ Capital Stock in such Farm Credit Lender (the **“Farm Credit Lender Equities”**) pursuant to12 

 

84

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## U.S.C. §2131. Accordingly, and notwithstanding any other provision of thisAgreement or any other Loan Document to the contrary: (a) the statutorylien of each Lender that is a Farm Credit Lender pursuant to 12 U.S.C. §2131 onthe Farm Credit Lender Equities of such Lender shall be for the sole andexclusive benefit of such Lender, and such Farm Credit Lender Equities (or theproceeds thereof) shall not be subject to pro rata sharing with any otherLender hereunder or under the other Loan Documents; (b) no Lender that isa Farm Credit Lender shall have an obligation to retire the Farm Credit LenderEquities of such Lender upon the occurrence and during the continuance of anEvent of Default or at any other time, either for application to theObligations or otherwise; and (c) no Farm Credit Lender Equities of aLender that is a Farm Credit Lender shall be offset against the Obligationsowing to such Lender or otherwise taken into consideration for purposes ofdetermining such Lender’s pro rata share of any interest hereunder.

##  

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

##  

## Section 9.22        **CoBank Bylaws and Capital Plan**.  The Borrower acknowledges receipt of a copyof CoBank’s bylaws and capital plan, which describe the nature of CoBankequities and capitalization requirements. The Borrower agrees to comply withthe requirements of CoBank’s bylaws and capital plan, as the same may beamended from time to time, including without limitation, provisions thereofapplicable to patronage distributions. Each of the Borrower and CoBank representto the other parties to this Agreement that the Borrower’s obligations underthe terms of CoBank’s bylaws and capitalization plan do not conflict with theBorrower’s obligations under this Agreement or any other Loan Document, exceptas specifically provided in Section 9.20and 9.21; provided, however, in the eventsuch conflict is determined to exist, then to the extent of such conflict theterms of this Agreement and the other Loan Documents shall govern and becontrolling.

##  

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

 

85

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## Section 9.24**       Prior Agreements**.  Upon satisfaction of the conditions precedentset forth in Section 3.1 hereof, the Prior Credit Agreement shall be and herebyis amended, superseded and restated in its entirety by the terms and provisionsof this Agreement.  This Agreement shallnot constitute a novation of the Prior Credit Agreement or the indebtednesscreated thereunder.  The Borrower shallhave the obligation to pay any fees and interest under the Prior CreditAgreement accruing through the effective date of this Agreement.

* *

*Signature Pages Follow*

 

86

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

 
| ** ** | **AMERICAN  CRYSTAL SUGAR COMPANY, as Borrower** |
|------------|--------------------------------------------------|
|       |                                             |
|       |                                             |
|       | By:                                              | /s/ Samuel S.M. Wai |
|       |                                             | Name: | Samuel S.M. Wai |
|       |                                             | Title: | Treasurer |

 

*SignaturePage 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 |

 

*SignaturePage 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 |

 

*SignaturePage 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 |

 

*SignaturePage to Amended and Restated Credit Agreement*

 

----

 

**EXHIBITSAND 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

5500South Quebec Street

GreenwoodVillage, CO 80111

Attention:Michael Tousignant

 

Re:          Amended andRestated Credit Agreement dated as of July 30, 2009 by and among AmericanCrystal Sugar Company, as borrower, the Lenders from time to time partythereto, and CoBank, ACB, as administrative agent

 

Inaccordance with the above referenced agreement (as amended, restated,supplemented or otherwise modified from time to time, the **“CreditAgreement”**), set forth below is the calculation of the BorrowingBase.

 

Allcapitalized terms used in this Certificate have the meanings given in theCredit Agreement.  All language used inthis certificate is summary language, the exact language and meanings have themeanings 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)                                 |   | $      |
|                                           |            |                                                                              |        |        |  |

 

TheBorrower hereby represents and warrants that this Borrowing Base Certificate isa true and correct statement regarding the status of matters set forththerein.  The Borrower hereby furtherrepresents and warrants that no Default or Event of Default has occurred and iscontinuing, except as disclosed in the accompanying letter.  In addition, the Borrower hereby acknowledgesthat any Revolving Credit Facility Advances made to the Borrower under theCredit Agreement will be based upon the Administrative Agent’s reliance on theinformation 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                         |

 

Forvalue received, AMERICAN CRYSTAL SUGAR COMPANY, a cooperative association formedunder the laws of the State of Minnesota (the **“Borrower”**),promises to pay to the order of****                         ,a                                                   (the **“Lender”**), at such place as theAdministrative Agent under the Credit Agreement defined below may from time totime designate in writing, in lawful money of the United States of America andin immediately available funds, the principal sum of                                                   Dollars****($              ),or, if less, the aggregate unpaid principal amount of all Revolving CreditFacility Advances (as defined in the Credit Agreement) made by the Lender tothe 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, asadministrative agent (as amended, restated, supplemented or otherwise modifiedfrom time to time, the **“Credit Agreement”**),together with interest on the unpaid principal balance hereof at such interestrates and payable at such times as are specified in the Credit Agreement.

 

ThisNote is a Revolving Credit Facility Note as defined in the Credit Agreement,and is issued subject and pursuant to the Credit Agreement, which, among otherthings, provides for the amount and date of payments of principal and interestrequired hereunder, acceleration of the maturity hereof upon the occurrence ofan Event of Default (as defined in the Credit Agreement), and prepayment hereofupon the occurrence of certain events.

 

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

 

Presentmentor other demand for payment, notice of dishonor and protest are expresslywaived.

 
|   | **AMERICAN  CRYSTAL SUGAR COMPANY** |
|--------|-------------------------------------|
|   | ** **                          |
|   | ** **                          |
|   | By:                                 |   |
|   |                                | Name: |   |
|   |                                | Title: |   |

 

D-1

----

 

**Exhibit E**

 

**REVOLVING TERM LOAN T01 NOTE**

** **
| $                          |   , 20     |
|---------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------------------------|
|                                                                                                                                                    | Denver, Colorado                         |

 

Forvalue received, AMERICAN CRYSTAL SUGAR COMPANY, a cooperative associationformed under the laws of the State of Minnesota (the **“Borrower”**),promises to pay to the order of****                         ,a                                                   (the **“Lender”**), at such place as theAdministrative Agent under the Credit Agreement defined below may from time totime designate in writing, in lawful money of the United States of America andin immediately available funds, the principal sum of                                                   Dollars****($              ),or, if less, the aggregate unpaid principal amount of all Revolving Term LoanT01 Advances (as defined in the Credit Agreement) made by the Lender to theBorrower 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, asadministrative agent (as amended, restated, supplemented or otherwise modifiedfrom time to time, the **“Credit Agreement”**),together with interest on the unpaid principal balance hereof at such interestrates and payable at such times as are specified in the Credit Agreement.

 

ThisNote is a Revolving Term Loan T01 Note as defined in the Credit Agreement, andis issued subject and pursuant to the Credit Agreement, which, among otherthings, provides for the amount and date of payments of principal and interestrequired hereunder, acceleration of the maturity hereof upon the occurrence ofan Event of Default (as defined in the Credit Agreement), and prepayment hereofupon the occurrence of certain events.

 

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

 

Presentmentor other demand for payment, notice of dishonor and protest are expresslywaived.

 
|   | **AMERICAN  CRYSTAL SUGAR COMPANY** |
|--------|-------------------------------------|
|   | ** **                          |
|   | ** **                          |
|   | By:                                 |   |
|   |                                | Name: |   |
|   |                                | Title: |   |

 

E-1

----

 

**Exhibit F**

 

**REVOLVING TERM LOAN T06 NOTE**

** **
| $                          |   , 20     |
|---------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------------------------|
|                                                                                                                                                    | Denver, Colorado                         |

 

Forvalue received, AMERICAN CRYSTAL SUGAR COMPANY, a cooperative associationformed under the laws of the State of Minnesota (the **“Borrower”**),promises to pay to the order of****                         ,a                                                   (the **“Lender”**), at such place as theAdministrative Agent under the Credit Agreement defined below may from time totime designate in writing, in lawful money of the United States of America andin immediately available funds, the principal sum of                                                   Dollars****($               ),or, if less, the aggregate unpaid principal amount of all Revolving Term LoanT06 Advances (as defined in the Credit Agreement) made by the Lender to theBorrower 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, asadministrative agent (as amended, restated, supplemented or otherwise modifiedfrom time to time, the **“Credit Agreement”**),together with interest on the unpaid principal balance hereof at such interestrates and payable at such times as are specified in the Credit Agreement.

 

ThisNote is a Revolving Term Loan T06 Note as defined in the Credit Agreement, andis issued subject and pursuant to the Credit Agreement, which, among otherthings, provides for the amount and date of payments of principal and interestrequired hereunder, acceleration of the maturity hereof upon the occurrence ofan Event of Default (as defined in the Credit Agreement), and prepayment hereofupon the occurrence of certain events.

 

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

 

Presentmentor other demand for payment, notice of dishonor and protest are expresslywaived.

 
|   | **AMERICAN  CRYSTAL SUGAR COMPANY** |
|--------|-------------------------------------|
|   | ** **                          |
|   | ** **                          |
|   | By:                                 |   |
|   |                                | Name: |   |
|   |                                | Title: |   |

 

F-1

----

 

Exhibit G

 

**REVOLVING LETTER OF CREDIT NOTE**

** **
| $                          |   , 20     |
|---------------------------------------------------------------------------------------------------------------------------------------------------------|------------------------------------------|
|                                                                                                                                                    | Denver, Colorado                         |

 

Forvalue received, AMERICAN CRYSTAL SUGAR COMPANY, a cooperative associationformed under the laws of the State of Minnesota (the **“Borrower”**),promises to pay to the order of****                         ,a                                                   (the**“Lender”**), at such place as theAdministrative Agent under the Credit Agreement defined below may from time totime designate in writing, in lawful money of the United States of America andin immediately available funds, the principal sum of                                                   Dollars****($                 ),or, if less, the aggregate unpaid principal amount of all Revolving Letter ofCredit Advances (as defined in the Credit Agreement) made by the Lender to theBorrower 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, asadministrative agent (as amended, restated, supplemented or otherwise modifiedfrom time to time, the **“Credit Agreement”**),together with interest on the unpaid principal balance hereof at such interestrates and payable at such times as are specified in the Credit Agreement.

 

ThisNote 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 otherthings, provides for the amount and date of payments of principal and interestrequired hereunder, acceleration of the maturity hereof upon the occurrence ofan Event of Default (as defined in the Credit Agreement), and prepayment hereofupon the occurrence of certain events.

 

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

 

Presentmentor other demand for payment, notice of dishonor and protest are expresslywaived.

 
|   | **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 asof July 30, 2009****by and amongAMERICAN CRYSTAL SUGAR COMPANY, a cooperative association formed under the lawsof the State of Minnesota (the **“Borrower”**),the Lenders from time to time party thereto, and CoBank, ACB, a federallychartered banking organization, as administrative agent (as amended, restated,supplemented or otherwise modified from time to time, the **“CreditAgreement”**).  Capitalizedterms used herein but not otherwise defined shall have the same meaningsassigned 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) specifiedin Annex I attached hereto and request or confirm our request that eachLender make Advance(s) in such Lender’s Percentage of the requestedBorrowing (the **“Requested Advances”**).

 

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

 

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

 

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

 

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

 

H-1

----

 
|   | **AMERICAN CRYSTAL SUGAR COMPANY** |
|--------|------------------------------------|
|   | ** **                         |
|   | ** **                         |
|   | By:                                | ** ** |
|   |                               | Name: |   |
|   |                               | Title: |   |

 

H-2

----

 

**ANNEX I**

**toBorrowing 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 byAdministrative 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 asof July 30, 2009****by and amongAMERICAN CRYSTAL SUGAR COMPANY, a cooperative association formed under the lawsof the State of Minnesota (the **“Borrower”**),the Lenders from time to time party thereto, and CoBank, ACB, a federallychartered banking organization, as administrative agent (as amended, restated,supplemented or otherwise modified from time to time, the **“CreditAgreement”**).  Capitalizedterms used herein but not otherwise defined shall have the same meaningsassigned to them in the Credit Agreement.

 

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

 

To induce the Lenders to make the Requested Conversion(s), we herebyrepresent and warrant to the Lenders that no Default or Event of Default existsor 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 asof July 30, 2009 by and among AMERICAN CRYSTAL SUGAR COMPANY, acooperative 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, asadministrative agent (as amended, restated, supplemented or otherwise modifiedfrom time to time, the **“Credit Agreement”**).  Capitalized terms used herein but nototherwise defined shall have the same meanings assigned to them in the CreditAgreement.

 

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

 

To induce the Lenders to make the Requested Conversion(s), we herebyrepresent and warrant to the Lenders that no Default or Event of Default existsor 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 RateDated [               ,           ]**

 
| **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 asof July 30, 2009 by and among AMERICAN CRYSTAL SUGAR COMPANY, acooperative 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, asadministrative agent (as amended, restated, supplemented or otherwise modifiedfrom time to time, the **“Credit Agreement”**).  Capitalized terms used herein but nototherwise defined shall have the same meanings assigned to them in the CreditAgreement.

 

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

 

To induce the Lenders to make the RequestedRenewal(s), we hereby represent and warrant to the Lenders that no Default orEvent of Default exists or will result from the making of any such RequestedRenewal(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, asAdministrative Agent

5500South Quebec Street

GreenwoodVillage, CO 80111

Attention:Michael Tousignant

 

Werefer to that certain Amended and Restated Credit Agreement dated as of July 30,2009 by and among AMERICAN CRYSTAL SUGAR COMPANY, a cooperative associationformed under the laws of the State of Minnesota (the **“Borrower”**),the Lenders from time to time party thereto, and CoBank, ACB, a federallychartered banking organization, as administrative agent (as amended, restated,supplemented or otherwise modified from time to time, the **“CreditAgreement”**).  Capitalizedterms used herein but not otherwise defined shall have the same meaningsassigned to them in the Credit Agreement.

 

Pursuant to Section 2.6 of the Credit Agreement, we hereby requestor confirm our request that Quoted Rate Loans in the aggregate amount(s) specifiedin 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 attachedhereto and that each Lender make such renewal(s) in such Lender’s Percentage ofthe Requested Renewal(s).

 

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

 
| ** ** | **AMERICAN CRYSTAL SUGAR COMPANY** |
|------------|------------------------------------|
|       |                               |
|       |                               |
|       | By:                                |   |
|       |                               | Name: |   |
|       |                               | Title: |   |

 

L-1

----

 

**ANNEX I**

**to Notice of Rollover of QuotedRate**

**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 TOFINANCIAL STATEMENTS**

 

**[                          ,         ]**

To:                            CoBank, ACB, asAdministrative Agent

5500South Quebec Street

GreenwoodVillage, CO 80111

Attention:Michael Tousignant

 

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

 

Werefer to that certain Amended and Restated Credit Agreement dated as of July 30,2009 by and among AMERICAN CRYSTAL SUGAR COMPANY, a cooperative associationformed under the laws of the State of Minnesota (the **“Borrower”**),the Lenders from time to time party thereto, and CoBank, ACB, a federallychartered banking organization, as administrative agent (as amended, restated,supplemented or otherwise modified from time to time, the **“CreditAgreement”**).  Capitalizedterms used herein but not otherwise defined shall have the same meanings assignedto them in the Credit Agreement.

 

I hereby certify on behalf of the Borrower as follows:

 

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

 

2.                                      Pursuant to Section5.1 of the Credit Agreement, attached arethe required [audited financial statements of the Consolidated Group preparedby **[                          ]**as of and for the Fiscal Year ended **[                                   ,20    ]** / unaudited financial statements of theConsolidated Group as of and for the Fiscal Quarter ended **[                 ,        ]**] (the **“Applicable Covenant Computation Date”**).  Such financial statements have been preparedin accordance with GAAP, fairly present the financial condition of theConsolidated Group as of such date and the results of the Consolidated Group’soperations for the period then ended, prepared on a consolidated andconsolidating basis, subject to year-end adjustments and footnotes, and conformto the applicable requirements of Section 5.1of the Credit Agreement.

 

3.                                      The Borrowerhas obtained no knowledge of any Default or Event of Default, except asspecifically stated on an attachment hereto (if any).

 

M-1

----

 

4.                                      Thecomputations attached hereto in Annex I set forth the Borrower’s compliance ornon-compliance with the requirements set forth in the Financial Covenants as ofthe Applicable Covenant Computation Date. Such computations have been preparedfrom, and on a basis consistent with, the financial statements attached hereto.

 
| ** ** | **AMERICAN CRYSTAL SUGAR COMPANY** |
|------------|------------------------------------|
|       |                               |
|       |                               |
|       | By:                                |   |
|       |                               | Name: |   |
|       |                               | Title: |   |

 

M-2

----

 

**Annex Ito Exhibit M**

 

**FINANCIALCOVENANT 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 Assignmentand Assumption (the **“Assignment and Assumption”**)is dated as of the Effective Date set forth below and is entered into by andbetween [the][each](1) Assignor identified in item 1 below ([the][each, an] **“Assignor”**) and [the][each](2) Assignee identified in item 2below ([the][each, an]**“Assignee”**).  [It is understood and agreed that the rightsand obligations of [the Assignors][the Assignees](3) hereunder are several andnot joint.](4)  Capitalized terms usedbut not defined herein shall have the meanings given to them in the Amended andRestated Credit Agreement dated as of July 30, 2009 by and among AMERICANCRYSTAL SUGAR COMPANY, a cooperative association formed under the laws of theState of Minnesota (the **“Borrower”**),the Lenders from time to time party thereto, and CoBank, ACB, a federallychartered banking organization, as administrative agent (as amended, restated,supplemented or otherwise modified from time to time, the **“CreditAgreement”**).  Capitalizedterms used herein but not otherwise defined shall have the same meaningsassigned to them in the Credit Agreement.

 

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

 

For an agreed consideration, [the][each] Assignor hereby irrevocablysells and assigns to [the Assignee][the respective Assignees], and [the][each]Assignee hereby irrevocably purchases and assumes from [the Assignor][therespective Assignors], subject to and in accordance with the Standard Terms andConditions and the Credit Agreement, as of the Effective Date inserted by theAdministrative Agent as contemplated below, (i) all of [the Assignor’s][therespective Assignors’] rights and obligations in [its capacity as aLender][their respective capacities as Lenders] under the Credit Agreement andany other documents or instruments delivered pursuant thereto to the extentrelated to the amount and percentage interest identified below of all of suchoutstanding rights and obligations of [the Assignor][the respective Assignors]under the respective facilities identified below (including without limitationany letters of credit, and guarantees included in such facilities), and (ii) tothe 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 aLender)][the respective Assignors (in their respective capacities as Lenders)]against any Person, whether known or unknown, arising under or in connectionwith 

 

----

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

 

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

 

(3)         Select asappropriate.

 

(4)         Includebracketed language if there are either multiple Assignors or multipleAssignees.

 

N-1

----

 

theCredit Agreement, any other documents or instruments delivered pursuant theretoor the loan transactions governed thereby or in any way based on or related toany of the foregoing, including but not limited to contract claims, tortclaims, malpractice claims, statutory claims and all other claims at law or inequity related to the rights and obligations sold and assigned pursuant toclause (i) above (the rights and obligations sold and assigned by [the][any]Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above beingreferred to herein, collectively, as [the][an]**“AssignedInterest”**).  Each such saleand assignment is without recourse to [the][any] Assignor and, except asexpressly provided in this Assignment and Assumption, without representation orwarranty 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 INSERTEDBY ADMINISTRATIVE AGENT, WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OFTRANSFER IN THE REGISTER THEREFOR.]

 

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

 
|       | 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 FORASSIGNMENT AND ASSUMPTION

 

1.  Representations and Warranties.

 

1.1  Assignor[s].  [The][Each] Assignor (a) represents andwarrants that (i) it is the legal and beneficial owner of [the][therelevant] Assigned Interest, (ii) [the][such] Assigned Interest is freeand clear of any lien, encumbrance or other adverse claim and (iii) it hasfull power and authority, and has taken all action necessary, to execute anddeliver this Assignment and Assumption and to consummate the transactionscontemplated hereby; and (b) assumes no responsibility with respect to (i) anystatements, warranties or representations made in or in connection with theCredit Agreement or any other Loan Document, (ii) the execution, legality,validity, enforceability, genuineness, sufficiency or value of the LoanDocuments or any collateral thereunder, (iii) the financial condition of theBorrower, any of its Subsidiaries or Affiliates or any other Person obligatedin respect of any Loan Document or (iv) the performance or observance bythe Borrower, any of its Subsidiaries or Affiliates or any other Person of anyof their respective obligations under any Loan Document.

 

1.2.  Assignee[s].  [The][Each] Assignee (a) represents andwarrants that (i) it has full power and authority, and has taken allaction necessary, to execute and deliver this Assignment and Assumption and toconsummate the transactions contemplated hereby and to become a Lender underthe Credit Agreement, (ii) it meets all the requirements to be an assigneeunder Section      (b)(iii), (v) and (vi) ofthe Credit Agreement (subject to such consents, if any, as may be requiredunder Section      (b)(iii) of the CreditAgreement), (iii) from and after the Effective Date, it shall be bound bythe provisions of the Credit Agreement as a Lender thereunder and, to theextent of [the][the relevant] Assigned Interest, shall have the obligations ofa Lender thereunder, (iv) it is sophisticated with respect to decisions toacquire assets of the type represented by the Assigned Interest and either it,or the person exercising discretion in making its decision to acquire theAssigned Interest, is experienced in acquiring assets of such type, (v) ithas received a copy of the Credit Agreement, and has received or has beenaccorded the opportunity to receive copies of the most recent financialstatements delivered pursuant to Section       thereof, as applicable, and such other documents and information as it deemsappropriate to make its own credit analysis and decision to enter into thisAssignment and Assumption and to purchase [the][such] Assigned Interest, (vi) ithas, independently and without reliance upon the Administrative Agent or anyother Lender and based on such documents and information as it has deemedappropriate, made its own credit analysis and decision to enter into thisAssignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) ifit is a Foreign Lender, attached to the Assignment and Assumption is anydocumentation required to be delivered by it pursuant to the terms of theCredit Agreement, duly completed and executed by [the][such] Assignee; and (b) agreesthat (i) it will, independently and without reliance on the AdministrativeAgent, [the][any] Assignor or any other Lender, and based on such documents andinformation as it shall deem appropriate at the time, continue to make its owncredit decisions in taking or not taking action under the Loan Documents, and (ii) itwill perform in 

 

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accordancewith their terms all of the obligations which by the terms of the LoanDocuments are required to be performed by it as a Lender.

 

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

 

3.  General Provisions.  This Assignment and Assumption shall bebinding upon, and inure to the benefit of, the parties hereto and theirrespective successors and assigns.  ThisAssignment and Assumption may be executed in any number of counterparts, whichtogether shall constitute one instrument. Delivery of an executed counterpart of a signature page of thisAssignment and Assumption by telecopy shall be effective as delivery of amanually executed counterpart of this Assignment and Assumption.  This Assignment and Assumption shall begoverned by, and construed in accordance with, the law of the State ofColorado.

 

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**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                     |

 

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| 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    |

 

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| 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    |

 

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| 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 |
|------------------|--------|----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|------------------------------------------------------------------------------------------------------------------------------------------------------------|--------|-----|

 

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**Schedule4.1**

 

**DOINGBUSINESS 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                                                                                                            |

 

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**Schedule4.4**

 

**CAPITALIZATION;ORGANIZATION CHART**

 

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

 

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

 

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

 

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

 

**OrganizationChart:**

 

 

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**Schedule4.7**

 

**LITIGATION**

 

None.

 

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**Schedule 4.11**

**PLANS**

 

Retirement Plan A forEmployees of American Crystal Sugar Company and for Employees of Sidney SugarsIncorporated.

 

Retirement Plan B forEmployees of American Crystal Sugar Company and for Employees of Sidney SugarsIncorporated.

 

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

 

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

 

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**Schedule 4.12**

**ENVIRONMENTAL COMPLIANCE**

 

None.

 

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**Schedule 4.18**

**LICENSES, COMPLIANCE WITH LAWS, OTHER AGREEMENTS**

 

None.

 

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**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 AgCountryFarm Credit Services, PCA, as evidenced by UCC filing #20023434494 filed onMarch 18, 2002, with the Minnesota Secretary of State against the Borroweras debtor.

 

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

 

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

 

Liens in favor of RDOEquipment Co., as evidenced by the following: (i) UCC filing #200810993995filed on March 17, 2008, with the Minnesota Secretary of State against theBorrower 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 NorthCentral Rental & Leasing LLC, as evidenced by the following:  (i) UCC filing #200811843478 filedon May 19, 2008, with the Minnesota Secretary of State against theBorrower 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 theMinnesota Secretary of State against the Borrower as debtor.

 

Liens in favor of AmericanNational Bank and Trust Company against the pollution control equipmentlocated at Moorhead, Minnesota as security for the 2001A East Grand Forks Bondsand the 2001B East Grand Forks Bonds.

 

Liens in favor of Minn-DakFarmers Cooperative and United States Sugar Corporation againstmarketing assets.

 

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**Schedule 6.2**

**OUTSTANDING DEBT**

 

Debt owed to the 1998Noteholders (as defined in the Intercreditor Agreement) with respect to the1998 Senior Secured Notes (as defined in the Intercreditor Agreement).

 

Debt owed to the 2003Noteholders (as defined in the Intercreditor Agreement) with respect to the2003 Senior Secured Notes (as defined in the Intercreditor Agreement).

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

Debt owed to the Obligor’smarketing pool (which includes Minn-Dak Farmers Cooperative and United StatesSugar Corporation).

 

Debt secured by the Liensdescribed on Schedule 6.1.

 

Debt guarantied pursuant tothe Guaranties described on Schedule 6.3.

 

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**Schedule 6.3**

**OUTSTANDING GUARANTIES**

 

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

 

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

 

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**Schedule 6.4**

**EXISTING INVESTMENTS**

 

Investments in the followingentities 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)

 

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